Elmer Britton v. South Bend Community School Corporation

FLAUM, Circuit Judge,

joined by BAUER, Chief Judge, concurring in the judgment and concurring in part.

I.

I join with Judge Posner in concluding that the plan adopted by the South Bend School Board was not narrowly tailored because it created an absolute preference *773 for black teachers and thereby imposed a burden on white teachers that was greater than necessary to achieve even the most compelling purpose. I therefore agree that, in light of Wygant, the Board’s plan fails the test of strict scrutiny and must be held unconstitutional. However, I write separately to express my understanding of the standards that govern our consideration of the constitutionality of affirmative action plans adopted by public employers. I also write separately to offer guidance to the district court, which on remand must determine the relief to which each plaintiff is entitled.

In light of Wygant, it is clear that a court may only uphold an affirmative action plan that is adopted by a public employer, and challenged under the Equal Protection Clause, if the court first determines that the employer adopted the plan to achieve a “compelling purpose.” Remedying its own past discrimination is indisputably one such purpose. 1 This does not mean, however, that a court may only uphold an affirmative action plan intended to remedy past discrimination if it determines that the public employer actually discriminated. Rather, the critical inquiry is whether the employer, giving due consideration to the rights of all employees, had “a firm basis for determining that affirmative action [was] warranted,” Wygant, 106 S.Ct. at 1856 (O’Connor, J., concurring in part), and whether it acted based on that belief. In resolving this issue, a court may consider both direct and circumstantial evidence.

At trial, the South Bend School Board, relying on the Sixth Circuit’s opinion in Wygant, stressed the “role model” theory. As a result, the record on appeal is necessarily incomplete as to the Board’s reason for adopting the plan. Nonetheless, the record indicates that the Board maintained a dual school system; received letters from government agencies suggesting that it had discriminated; heard statements made at public meetings accusing it of discrimination; and signed a consent decree barring racial “steering” of teachers. Although these facts do not conclusively establish that the Board discriminated against black teachers in hiring, they are sufficient to permit a court to conclude that the Board reasonably believed that it had discriminated. The record also indicates that, although the School Board stressed the role model theory, it did suggest at trial that it had adopted the layoff plan to remedy its past discrimination. See, e.g., Trial Transcript 91-92, 95-96 (testimony of former board member H. Hughes).

Although the Board appears to have had a compelling purpose, its plan must fail because it was not narrowly tailored. If the Board had sought to remedy its past discrimination by maintaining the percentage of black teachers, it could have adopted a proportional layoff plan. Such a plan might have been constitutionally permissible in this case. See Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 583 , 104 S.Ct. 2576, 2590 , 81 L.Ed.2d 483 (1984) (leaving open the question of whether a public employer may voluntarily adopt a proportional layoff plan); see also Franks v. Bowman Transportation Company, 424 U.S. 747, 778-79 , 96 S.Ct. 1251, 1270-71 , 47 L.Ed.2d 444 (1976) (A collective bargaining agreement may “enhanc[e] the seniority status of certain employees ... to the end of ameliorating the effects of past racial discrimination.”). If the Board had reasonably believed that the only means to remedy its past discrimination was by continuing to increase the percentage of black teachers, it could conceivably have been permissible for it to adopt a disproportional layoff plan. Cf. United States v. Paradise, — U.S. -, 107 S.Ct. 1053 , 94 L.Ed.2d 203 (1987) (disproportional hiring plan permissible to remedy extreme discrimination by a state actor). The fatal flaw in the Board’s plan is that it placed the entire burden on the white teachers.

*774 II.

On remand, the district court must make an individualized assessment of the compensatory and equitable relief to which each plaintiff is entitled. The court should grant compensatory relief only for those injuries that would not have occurred but for the Board’s unconstitutional action. For example, those plaintiffs who would have been laid off even if the Board had used its pre-existing seniority system do not appear to have suffered a compensable injury. Moreover, any award of compensatory relief should reflect the mitigation of damages resulting from the substitute teaching and recall provisions.

In determining the equitable relief to which the plaintiffs are entitled, I believe that the district court should be guided by the existing case law concerning “compensatory seniority.” The Supreme Court has stated that the “remedial interest of the discriminatees” must be balanced against “the legitimate expectations of other employees innocent of any wrongdoing.” Teamsters v. United States, 431 U.S. 324, 371-77 , 97 S.Ct. 1843, 1872-75 , 52 L.Ed.2d 396 (1977). In particular, the Court has indicated that those plaintiffs who have not been recalled are “not automatically entitled to have [an incumbent] employee laid off to make room” for them. Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 579 , 104 S.Ct. 2576, 2588 , 81 L.Ed.2d 483 (1984).

III.

The outcome in this case should not be construed as a retreat from our belief that the eradication of racial barriers must remain one of the highest priorities of our society, and our recognition that when these barriers are the result of intentional discrimination by a state actor, the Constitution elevates this priority to the status of an affirmative command. Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 , 91 S.Ct. 1267 , 28 L.Ed.2d 554 (1971). Although we have rejected the plan at issue, our result does not signal any hesitation to uphold reasonable affirmative action programs, even if “innocent persons [are] called upon to bear some of the burden of the remedy,” Wygant v. Jackson Board of Education, — U.S. -, 106 S.Ct. 1842, 1850 , 90 L.Ed.2d 260 (1986) (plurality). Our efforts as a society to remedy the appalling legacy of discrimination are far from finished.

. Remedying past discrimination is not necessarily the only government purpose sufficiently compelling to justify the remedial use of race. Providing faculty diversity may be a second. Wygant, 106 S.Ct. at 1853 (O’Connor, J., concurring in part). There may be “other governmental interests ... [that are] sufficiently ‘important’ or 'compelling' to sustain the use of affirmative action policies.” Id.