# Elmer Britton v. South Bend Community School Corporation > Court of Appeals for the Seventh Circuit · October 21, 1985 · 775 F.2d 794 URL: https://www.frixlaw.com/law-library/cases/9474120 ## Case - **Full name:** Elmer BRITTON, Et Al., Plaintiffs-Appellants, v. SOUTH BEND COMMUNITY SCHOOL CORPORATION, Et Al., Defendants-Appellees - **Court:** Court of Appeals for the Seventh Circuit - **Decided:** October 21, 1985 - **Citations:** 775 F.2d 794; 38 Empl. Prac. Dec. (CCH) 35,679; 39 Fair Empl. Prac. Cas. (BNA) 170; 1985 U.S. App. LEXIS 23743 - **Precedential status:** Published - **Opinion:** Dissent by Posner - **Judges:** Cudahy, Posner, Fairchild - **Cited by:** 4 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9474120 ## Opinion text POSNER, Circuit Judge, dissenting. The public school system of South Bend, Indiana laid off 146 teachers. All were white; 48 had more seniority than blacks not laid off; two years later 20 of the 48 had not yet been recalled. The school system was carrying out a policy of not laying off any blacks. This was racially discriminatory state action and the question is whether it denied the 48 white teachers the equal protection of the laws, in violation of the Fourteenth Amendment. Discrimination against whites, when connected in some way, however tenuously, to the history of discrimination by whites, is called “affirmative action,” or, less euphemistically, “reverse discrimination.” The debate over its legality is bounded by two positions. The first is that, like dis *815 crimination against members of minority groups, it is illegal per se; that since rights against discrimination are personal rather than group rights, as emphasized in Connecticut v. Teal, 457 U.S. 440, 453-54 , 102 S.Ct. 2525, 2533-34 , 73 L.Ed.2d 130 (1982), membership in a racial group confers no entitlements; and that to hold that there is good racial discrimination and bad racial discrimination and that only the bad is unlawful would make the antidiscrimination principle too contingent, too empirical, too subject to judicial caprice, and at once too heedless of the legitimate rights of white people and too condescending toward black people. The second position is that reverse discrimination is permissible if reasonable in all the circumstances; that the law should be capable of differentiating among types of discrimination that differ in history, motivation, and consequence; and that inflexible commitment to the idea of a col- or-blind Constitution would prevent black people from overcoming the effects of centuries of severe discrimination. The choice between these positions is as contentious as any issue facing the nation. The Supreme Court has avoided it by steering a middle course, thus obliging us to do likewise. The Court has refused to condemn reverse discrimination outright, as discrimination against blacks and other minority groups is condemned. See, e.g., Fullilove v. Klutznick, 448 U.S. 448, 482-83 , 100 S.Ct. 2758, 2776-77 , 65 L.Ed.2d 902 (1980). But it has not treated it as permissively as purely “economic” discrimination, such as exempting individuals from a personal property tax, is treated. Compare id. at 519 , 100 S.Ct. at 2795 (Marshall J., concurring), and Regents of University of California v. Bakke, 438 U.S. 265, 358-62 , 98 S.Ct. 2733, 2782-85 , 57 L.Ed.2d 750 (1978) (separate opinion of Brennan, J.), with Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 359-60 , 93 S.Ct. 1001, 1003-04 , 35 L.Ed.2d 351 (1973). All of the Justices seem troubled by state action that draws racial lines, even if the benefited group is a traditional target, rather than a practitioner or a beneficiary, of discrimination. Yet all seem also to believe that reverse discrimination is less vicious and less harmful than discrimination against the traditionally discriminated against. For even the severest critics of reverse discrimination do not object to programs for recruiting or training blacks and other minority persons, though such programs create a racial preference, and though a program for recruiting or training whites as such would be viewed with the gravest suspicion. So in evaluating what South Bend has done to these white teachers we are not permitted by our judicial superiors either to condemn it out of hand as illegal discrimination because its motivation was racial or to evaluate it under a standard of reasonableness whereby anything goes that is not clearly arbitrary. We have to look at it critically — to give it, in Justice Brennan’s words, “strict and searching” review, Regents of University of California v. Bakke, supra, 438 U.S. at 361-62 , 98 S.Ct. at 2784-85 (separate opinion) — and to adjudge it a denial of the equal protection of the laws if we cannot say that it is a well-tailored means to a clearly lawful end. There are two possible ends to which the laying off of these teachers might conceivably be a proper means. The first is to remedy a violation of law. Suppose South Bend had formerly refused to hire black teachers, and to correct the violation it not only hired blacks but jumped them ahead of some white teachers on the seniority roster. This remedy could be defended on the ground that, but for the city’s past discrimination, the black teachers whom it had hired recently would have been hired earlier and would thus have accumulated as much seniority as white teachers— though the city would have to prove that the particular black teachers given super-seniority had in fact, as my example assumes, been victims of the city’s past discrimination. See Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561 , 104 S.Ct. 2576, 2588 , 81 L.Ed.2d 483 (1984). Applied to this case, the defense would fail for two reasons. There is no evidence that the particular black teachers who received su- *816 perseniority had ever been discriminated against by the South Bend school system. And the city put the black teachers ahead of all the white teachers, thus giving them more seniority than it is plausible to imagine they would have accumulated had there never been discrimination against blacks— giving them, in fact, what they could have expected to get only in a world where whites were systematically discriminated against. But forget all this; for the more fundamental point is that this is not a case that arises out of discrimination in hiring, whether against the particular black teachers who kept their jobs when more senior whites were laid off or against any other black candidates for teaching jobs in the South Bend public schools. South Bend used to discriminate against black teachers, it is true, but the discrimination lay in assigning them to schools with a predominantly black student population, not in refusing to hire them. The scanty references in the record to “recruitment” are to the fact that until the 1970s the school board did not make aggressive efforts to recruit blacks. It did not make agressive eforts to recruit anyone. Affirmative action in hiring is sometimes permitted, but it is not mandatory, and its absence does not equate to refusing to hire qualified black applicants. Of such refusal I can find no indication in the record except an unelaborated, unsubstantiated, unsworn statement made by a black community activist at a public meeting of the school board. My brethren describe this statement as “testimony”; it is not testimony, and there is nothing else. My brethren may think that any school system that segregated blacks and whites must have discriminated against blacks in hiring too; but actually there need be no correlation between the two forms of discrimination. Indeed, with complete segregation of whites and blacks, and identical student-teacher ratios in black and white schools, the ratio of black to white teachers would be equal to the ratio of black to white students — which as a matter of fact is the school board’s goal in this case. There might be no hiring discrimination even if, with segregated schools, the ratio of black to white teachers was lower than the ratio of black to white students, as apparently it has been throughout South Bend’s history. Maybe there were fewer qualified black teachers than white teachers; the school system therefore hired fewer black teachers relative to black students than white teachers relative to white students; so the student-teacher ratio was higher in the black than in the white schools. There would, if the schools were racially segregated, be discrimination, but not in hiring — a distinction fundamental to this case. The rational remedy for the discrimination in which South Bend engaged — for school segregation as distinct from refusal to hire qualified black teachers — is not su-perseniority for black teachers but equal assignments for black teachers. It is therefore not surprising that the consent decree entered in 1980 contained no provision for superseniority. The defendants’ counsel conceded at oral argument that no competent body had ever made a finding that the school board had turned down a qualified black applicant for a teaching job. I do not find this important concession remarked in the majority opinion. Rather than discriminating against black teachers in hiring, South Bend has discriminated in their favor since before the consent decree was signed. This is a more pertinent fact than what Indiana did to black-s when it was a territory, or before the Civil War, or even in 1949. Whatever its past failure in the area of aggressive recruiting of blacks, by 1978 South Bend (we were told at argument) was hiring three times the fraction of black applicants for teaching jobs as of white applicants. True, the fraction of black teachers was not yet so high as the fraction of black students, but that does not prove discrimination, any more than the ratio of the percentage of black teachers (7 percent) to the percentage of black students (16 percent) in 1968 proved discrimination — in hiring. The proper comparison is not between the percentages of black teachers and *817 black students, any more than the ratio between the percentage of black employees of soft-drink vendors and the percentage of soft-drink buyers who are black would be relevant in a suit charging the vendors with discrimination. The proper comparison is between the number of black teachers hired by the school district and the number of qualified black teachers in the relevant labor market, see Hazelwood School District v. United States, 433 U.S. 299, 308 , 97 S.Ct. 2736, 2741 , 53 L.Ed.2d 768 (1977) — a number that appears nowhere in this record but that in the absence of evidence is best approximated by the number of black teaching applicants. And in 1978 a black applicant had three times the chance of being hired as a white applicant. It appears, then, that two years before the consent decree went into effect South Bend was hiring a larger fraction of qualified blacks than qualified whites — and there is no evidence that it had ever refused to hire qualified blacks. The record will not sustain an argument that supersen-iority for black teachers was necessary to eliminate a legal violation or even keep the school board out of legal trouble, for there is no evidence of a relevant violation, actual or arguable, past or present. The lack of “fit” between the discrimination found and the remedy prescribed is complete, and is not to be brushed aside by reference to the history of school segregation in Indiana; for, as I have tried to emphasize, segregating the schools and refusing to hire qualified black teachers are logically, and for all we know factually, distinct forms of racial discrimination. The other ground for giving black teachers superseniority might be to preserve “role models” for the black students in South Bend’s public schools, the theory being that scholastic underachievement is one of the legacies of discrimination against blacks. Although the defendants have made little effort to establish this ground, I am willing to give them every benefit of the doubt and therefore consider whether there is any possible basis for upholding the grant of superseniority by reference to the need for black role models. At the time of the consent decree 11 percent of the teachers in the South Bend public schools were black, which was half the percentage of black students and was thought to be too low. To raise this percentage it was decided that half of the new hires should be black. By the time the layoffs began 13 percent of the teachers were black, and but for the grant of super-seniority in 1982 that percentage would have fallen back to 11 percent because many of the black teachers had been hired recently and therefore had less seniority than white teachers. It is plausible both that black teachers on average relate better to black students than white teachers do and that a significant presence of black teachers in a school is necessary to legitimize educational achievement in the minds of black students who come, from educationally deprived homes. But it does not follow that every school with black students ought to strive for the identical percentage of black teachers at whatever cost to white teachers. If these white teachers, who so far as appears are neither practitioners nor beneficiaries of racial discrimination and who I am sure are not the economically most secure members of the community either, are to be sacrificed as pawns in the struggle for racial justice because they are, as my brethren put it, members of “the socially dominant white majority,” there should be some competent evidence — educational, psychological, or sociological — that their sacrifice is necessary. Evidence, for example, that the difference between 11 percent of the teachers being black in a school 26 percent of whose students are black and 13 percent of the teachers being black is educationally relevant. There is no such evidence and there are no relevant findings of fact by the district judge, who based decision on his earlier decision in a similar case, the Janowiak case, which another panel of this court reversed in a decision that my brethren are at pains to distinguish. Even the point of comparing the percentage of teachers who are black with the percentage of students who are black, rath *818 er than the number of black teachers with the number of black students, is not apparent, and of course is not explained. Comparing the number of black teachers to the number of black students is relevant to the issue of role models for black students because it indicates how often a black student is likely to encounter a black teacher. But comparing the percentage of black teachers to the percentage of black students merely generates paradoxes. Suppose that as a result of a sharp decline in the number of teachers (because of layoffs), with no decline in the number of students, the ratio of black teachers to black students fell because some black teachers had been laid off, but the percentage of black teachers (that is, black teachers as a percentage of all teachers) rose because a higher fraction of white than of black teachers had been laid off. The number of black role models would have declined yet under the method of calculation used by the defendants the black students would be deemed better off. Actually they would be worse off both because the student-teacher ratio was higher, so that each student could expect less individual attention, and because there would be fewer black teachers for the students to look up to. Or suppose that for some reason the number of white students in the school system increased and the number of black teachers, black students, and white teachers remained the same. The percentage of black teachers would be the same but the percentage of black students would be lower (because the percentage of white students would be higher), so the ratio of the two percentages would be higher. For example, if the number of white students in the public schools of South Bend doubled, the percentage of black teachers would be roughly the same as the percentage of black students (the latter percentage having declined to roughly half of what it had been), and by the defendants’ reasoning the black students would have their full quota of role models. To be concrete, suppose we start with 9 white teachers, one black teacher, 80 white students, and 20 black students, so that the percentage of black teachers is 10 percent but the percentage of black students 20 percent, and then we add 100 white students. This would bring down the percentage of black students to 10 percent, so that under the defendants’ view the black students would now have enough black role models, for there would be the same percentage of black teachers as of black students. I am baffled by this logic. The black students would have neither more black teachers nor a higher percentage of black teachers; they would just have more white fellow students. The record contains what I have said is the more relevant comparison — the ratio of black teachers to black students, which ranged from 1 to 40 to 1 to 60 in the relevant period. But the record contains no interpretation of these ratios. I would like to know how many black teachers the South Bend schools would have to have in order to guarantee every black student at least two black teachers a year, and I should like to have the opinion of an educator or a sociologist as to whether black students would benefit significantly from having more role models than that. Eleven percent, which is what the percentage of black teachers in the South Bend public schools would have been if they had not been given extra seniority, is the approximate percentage of blacks in the nation’s population. It is not obvious to me why a higher percentage is necessary to provide black students with enough role models, even' if the students happen to attend a school where the percentage of blacks exceeds the national average. Again I emphasize the lack of any evidence on the point. There is an insidious as well as arbitrary quality to “role model” arguments that ought to make us insist that they be backed by evidence. Supposing that black male students need black male teachers as role models, should preference be given to black male over black female applicants for teaching jobs? Are whites entitled to white role models in schools where black or Asian or Hispanic teachers are overrepre *819 sented? Must the teaching staff of every public school in the United States reflect the racial, ethnic, sexual, and religious composition of the student population of the school? Should a school system assign only black teachers to a school that has only black students? See Morgan v. Ker-rigan, 509 F.2d 580, 596 (1st Cir.1974). Would not the “role model” argument, carried to an extreme, carry us back to where Indiana was before 1949, with a system of segregated schools, in which blacks attended schools staffed (presumably) by black teachers? In order to answer these heavily rhetorical questions “no” yet accept the defendants’ role-model argument in this case we need some evidence, and have none. Even if the defendants had made a case for giving black teachers some extra seniority, a policy of laying off only white teachers is hard to describe as the equal protection of the laws, if as I assume the equal protection clause requires careful scrutiny of discrimination directed against any race, including the white race, though perhaps less careful than if the group discriminated against were smaller and less secure. The defendants’ policy amounts to saying that every black teacher shall have more seniority than any white teacher; that so far as seniority is concerned the blacks shall constitute a separate and superior caste. This seems to me a little like giving each black citizen of South Bend two votes in elections to the school board compared to one for whites — a discrimination that I cannot imagine any court upholding. The defendants’ policy has the curious effect of increasing the percentage of black teachers in the public schools of South Bend merely because economic conditions have worsened. Suppose the South Bend schools had had to lay off half their teachers; since no blacks could be laid off, the percentage of blacks would have zoomed from 13 to 26 percent. The actual number of layoffs was not so great, so that while the percentage of black teachers did increase, the increase was only from 13 to 14 percent. Still, laying off only whites seems a pretty weird mechanism for creating more black role models. Even if the need for adequate role models required that the fraction of teachers who are black equal the fraction of students who are black, it does not follow that the proper means to that goal is never to lay off a black. An alternative would be to hire an even higher fraction of blacks. The adverse effect on the job security of whites would be less. I am not much comforted by the point that the provision for racial preference expires with the collective bargaining agreement, and thus lasts only three years unless renewed. Now as a matter of fact it has been renewed, though only for a year. The union and the school system are thinking of moving toward a system of racially proportional layoffs, so that the fraction of black teachers in the system would not rise because of layoffs. This would still mean giving blacks more seniority than whites on purely racial grounds, though not as much more as under the 1980 agreement. So the discrimination will persist, indefinitely perhaps, though in a somewhat milder form than in its first four years. Collective bargaining agreements, be it noted, almost always lapse after three years, but no one is likely to argue that on that account unions and employers should be free to write discriminatory provisions into them. Nor am I persuaded that since the union voted to give the blacks superseniority, it must be okay, though my brethren regard this point as “one of the most decisive in validating the challenged plan.” 1. Under the collective bargaining arrangements between South Bend and the teachers’ union, only union members can vote on whether to ratify a proposed collective bargaining contract. A teacher who is not a member of the union has no voice, and 28 percent of the teachers, including some of the plaintiffs, were not members of the union. If all the union members voted and fewer than 70 percent of them voted for the contract, then a minority of all the teachers voted for it. We do not know what the vote was. *820 2. Even the union members do not vote on particular provisions, such as the provision that gives blacks superseniority; they vote the whole contract up or down. A majority might have wanted the racial provision deleted yet have voted for the contract because they liked the remaining provisions or because they were fearful of working without a contract. This is conjecture, of course; but the burden of justifying racial discrimination is on those who do the discriminating, the defendants in this case, who presented no evidence of consent by the victims of the discrimination beyond the bare fact of ratification of the collective bargaining contract. 3. The provision on minority rights that appears in the contract as ratified is worded differently from the provision that was in the draft of the contract submitted to the members of the union to vote on. The record does not contain the original wording. 4. We do not know the vote on the contract, as I said, but it was not unanimous, and it is no answer to a charge of racial discrimination that an electoral majority supports it. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 51-52 , 94 S.Ct. 1011, 1021-1022 , 39 L.Ed.2d 147 (1974). Suppose a majority of the black members of the union had voted to lay off blacks first, regardless of seniority. Would this mean that other black members could not complain of racial discrimination? That black nonmembers could not? My brethren say that “the teachers were not oblivious of these possibilities [i.e., that they might lose their jobs] when they voted for the provision.” I would word it differently. I would say, more accurately than my brethren, that the teachers who voted for the collective bargaining contract were, presumably, not oblivious to the possibility that they might lose their jobs because of the provision in the contract granting superseniority to blacks. We know that some of the plaintiffs did not vote for the contract, because they were not members of the union and therefore were ineligible to vote. We do not know how many, if any, of the plaintiffs who were members of the union voted for the contract and as to those who did vote for it — if there were any plaintiffs who did— we do not know whether they supported superseniority for blacks or opposed it but thought that on balance it was better to have a discriminatory contract than to have no contract. To take away a public employee’s job because of his racial identity is a serious step. It ought not be taken as lightly as it was here. This is not to say that it is the worst form of reverse discrimination that can be imagined. Hiring unqualified blacks in lieu of qualified whites is a worse affront to the merit principle and to social efficiency. For seniority is not a meritocratic principle, so that laying off more senior ahead of less senior workers need not reduce the quality of the work force, and may increase it. But job rights are precious commodities to workers (the Supreme Court, of course, views tenure, which these plaintiffs had, as “property” within the meaning of the due process clauses of the Fifth and Fourteenth Amendments, see, e.g., Perry v. Sindermann, 408 U.S. 593, 599, 601-02 , 92 S.Ct. 2694, 2698, 2699-2700 , 33 L.Ed.2d 570 (1972)), and the deprivation of those rights on nakedly racial grounds is a sufficient affront if not to the merit principle than to the ideals of racial equality and of judgment in accordance with individual worth to require something more than the slapdash effort at rationalization attempted by the defendants in this case; at least our judicial superiors seem to believe that. It is not enough that South Bend once discriminated against black teachers on grounds unrelated to anything for which superseniority would be a rational corrective and that there are valid educational reasons for wanting to expose black students to black teachers. This would be enough to justify efforts to recruit more black teachers but it is not enough to justify taking away (whether temporarily or permanently, depending on economic conditions) white teachers’ jobs. Cf. Kromnick v. School District, 739 F.2d 894, 902 (3d *821 Cir.1984). For that a more particularized showing of need is required than was attempted. My brethren’s scrutiny of the defendants’ conduct is not “strict and searching”; it is not brief, but it is casual, and although supported by the Sixth Circuit’s decision in Wygant v. Jackson Bd. of Educ., 746 F.2d 1152 (6th Cir.1984), cert. granted, — S.Ct. -, 105 S.Ct. 2015 , 85 L.Ed.2d 298 (1985), is inconsistent with the approach previously taken in this circuit, see Janowiak v. Corporate City of South Bend, 750 F.2d 557, 563-64 (7th Cir.1984), and Donovan v. Illinois Education Ass’n, 667 F.2d 638, 641-42 (7th Cir.1982), with the spirit of the Supreme Court’s decisions in McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273 , 96 S.Ct. 2574 , 49 L.Ed.2d 493 (1976), and Firefighters Local Union No. 1784 v. Stotts, supra, 104 S.Ct. at 2584, 2588 , with an earlier Sixth Circuit decision, Oliver v. Kalamazoo Board of Education, 706 F.2d 757 (6th Cir.1983), and with the evident seriousness with which all of the Supreme Court Justices regard any form of racial discrimination. Even Wygant provides only limited support for the decision today. Wygant did not involve a policy of not laying off any blacks — it just provided that no higher percentage of blacks than of whites could be laid off — and the process for ratification of the collective bargaining agreement was not (so far as remarked in the opinions, anyway) flawed, as was the process here. No case before today has upheld so harsh a form of reverse discrimination. The plan of affirmative action upheld in United Steelworkers v. Weber, 443 U.S. 193 , 99 S.Ct. 2721 , 61 L.Ed.2d 480 (1979), for example, did not involve discharging any workers. But I shall not pretend that precedent dictates the outcome of this case. We must distill principles, and apply them. The principle I distill is that the kind of reverse discrimination involved in this case, which takes away job rights and not just job opportunities, requires careful and critical review; and it has not received it. The harshness of the discrimination practiced in this case does not go completely unremarked by my brethren, but they do not draw the obvious conclusion, which is that the defendants ought to be required to show that this discrimination was necessary to achieve some clearly lawful end. My brethren remark the painful character of what the defendants have done to the plaintiffs, yes, but the only solace they offer these plaintiffs, who have lost their jobs, is to note that the loss is, for most of them anyway, temporary; that many white teachers, though not necessarily the plaintiffs, voted to give the blacks extra seniority; and that in any event the plaintiffs, being white, have not been “stigmatized” by being laid off. Although man does not live by bread alone, neither does he live by self-esteem alone, and it is small comfort to a person who loses his job as a result of discrimination in favor of a black to be told that he has, after all, the consolation of being white, that most of the people who have discriminated against him are themselves white, and that he may get his job back some day soon — though some of these plaintiffs have been waiting for three years. I am willing to accept that the equal protection clause means as a practical matter less for whites than for blacks but not that it means nothing at all, which if this decision stands will be the approximate situation in this circuit after today. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9474120. Public record. Not legal advice.