Elmer Britton v. South Bend Community School Corporation

CUMMINGS, Circuit Judge,

with whom Judges WOOD, Jr., CUDAHY, and FAIRCHILD join,

dissenting.

While fully joining Judge Cudahy’s dissent, I feel it is necessary to voice my objection to the grounds relied upon by the plurality and concurrence. “It is now well established that government bodies, including courts, may constitutionally employ racial classifications essential to remedy unlawful treatment of racial or ethnic groups subject to discrimination.” United States v. Paradise, — U.S.-, 107 S.Ct. 1053, 1064 , 94 L.Ed.2d 203 (plurality opinion); Local 28 of the Sheet Metal Workers’ Int’l Ass’n v. EEOC, — U.S. -, 106 S.Ct. 3019, 3052 , 92 L.Ed.2d 344 (plurality opinion). Also beyond dispute is the importance of voluntary efforts on the part of public employers, as well as private employers, to eliminate the lingering effects of racial discrimination, even those effects not attributable to the entity’s own practices. Johnson v. Transportation Agency, — U.S.-, 107 S.Ct. 1442, 1456-57 , 94 L.Ed.2d 615 ; United Steelworkers v. Weber, 443 U.S. 193, 208 , 99 S.Ct. 2721, 2729 , 61 L.Ed.2d 480 . This concern rises to the level of a constitutional duty to take affirmative action when the lingering discriminatory effects are due to a public employer’s own past discrimination. Wygant v. Jackson Board of Education, 476 U.S. 267 , 106 S.Ct. 1842, 1856 , 90 L.Ed.2d 260 (O’Connor, J., concurring); Keyes v. School District No. 1, 413 U.S. 189, 200 , 93 S.Ct. 2686, 2693 , 37 L.Ed.2d 548 ; Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15 , 91 S.Ct. 1267, 1275 , 28 L.Ed.2d 554 ; Green v. County School Board, 391 U.S. 430, 437-38 , 88 S.Ct. 1689, 1693-94 , 20 L.Ed.2d 716 . Today’s treatment of the layoff plan of the South Bend Community School Corporation (the *775 “School Corporation”) will unjustifiably discourage public employers from voluntarily meeting their constitutional obligations to undertake race-conscious remedial measures.

Public employers who undertake race-conscious remedial measures must consider the need for the measures as well as their effects on the rights of employees innocent of discriminatory wrongdoing. Although a majority of the Supreme Court has yet to reach agreement on the standard for reviewing an equal protection challenge to a public employer’s affirmative action program, if that plan meets the requirements of strict scrutiny then there can be no doubts as to its constitutionality. Paradise, 107 S.Ct. at 1064 . Because we cannot determine on the basis of the record before us that as a matter of law plaintiffs have met their burden of establishing that the School Corporation’s layoff provision violated the Equal Protection Clause, even giving them the benefit of the strictest standard for reviewing such plans, this case should be remanded to the district court for further fact-finding.

The evidence and testimony presented at trial and laid out in Judge Cudahy’s dissenting opinion herein show that the School Corporation had a “firm basis” for believing that race-conscious remedial measures were necessary. See Wygant, 106 S.Ct. at 1856 (O’Connor, J., concurring). The layoff provision was adopted in 1980 after more than a decade of increasing criticism of the School Corporation’s policies and practices that maintained a dual school system — officially prescribed by Indiana law until 1949-in which some schools could be identified as “white” or “black.” In 1967, the School Corporation was forced by a lawsuit to abandon plans to construct a new school on the site of a school that was 99% black and alleged to be a product of de jure segregation. Def. Ex. M-6. There was evidence that black teachers were assigned to predominantly black schools, which received less maintenance and substantially less financial support, and that black teachers had little opportunity for promotion. Id. In 1975, the Office for Civil Rights of the Department of Health, Education and Welfare determined that the School Corporation was intentionally segregating faculty members. Def. Ex. M-3. This finding alone creates a prima facie case of a violation of the Equal Protection Clause justifying race-conscious remedies, Swann, 402 U.S. at 18 , 91 S.Ct. at 1277 , but there was even more. In the mid-1970’s the Board of Trustees of the School Corporation discussed the fact that racially identifiable schools existed and that minority teachers and students were concentrated in “black schools.” Trial Tr. 91-92 (testimony of Hollis Hughes, Jr., former member of the Board). In 1976, the School Corporation made only failed attempts, and “not very strong attempts,” to dismantle its dual school system. Id. at 92 . In May 1978, the State of Indiana Office of Schoolhouse Planning forbade construction of new facilities until the School Corporation addressed the problem of racially identifiable schools. Id. at 93 .

Under pressure from the State of Indiana and the federal government, the School Corporation finally took significant steps to dismantle its dual school system. In December 1978, it adopted an affirmative action hiring program, Resolution 1020. In February 1980, after the federal government had brought suit, the School Corporation entered a consent decree to desegregate its schools by changing its faculty and student assignment policies. Def. Ex. C — 1. That consent decree required it to continue its affirmative action hiring programs and report to the federal government its total faculty, by race, until the end of 1983. Id. 3 at 118, 4 at 1110(a). In May 1980, the School Corporation entered a 3-year collective bargaining agreement that included the no-minority layoff provision.

Therefore, the trier of fact on remand could find that the School Corporation had a firm basis for believing it necessary to adopt a remedy even as drastic as the 3-year no-minority layoff provision. For race-conscious remedies, “the nature of the violation determines the scope of the remedy.” Swann, 402 U.S. at 16 , 91 S.Ct. at 1276 . Here the School Corporation waited for more than 20 years after Brown v. *776 Board of Education, 347 U.S. 483 , 74 S.Ct. 686 , 98 L.Ed. 873 , to begin to dismantle its dual school system and in the meantime continued its policies of maintaining racially identifiable schools until it was forced to change. Although facially appealing, our inquiry into the constitutionality of the layoff provision does not end with the simple observation that the School Corporation’s provision barred the laying off of any black teachers while Wygant struck down a plan merely requiring proportional layoffs. Unlike Wygant where there was no evidence of intentional discrimination, see Sheet Metal Workers, 106 S.Ct. at 3053 (plurality opinion); see also dissenting opinion herein at p. 780 (Cudahy, J.), here a trier of fact could find that the School Corporation reasonably believed that such immediate action was necessary to maintain the present number of black teachers. The provision enabled the School Corporation to preserve its affirmative action hiring gains and to counter the lingering discriminatory atmosphere traceable to its recently abandoned policy of assigning black teachers to “black schools,” and to do all this in an expedited manner in order to compensate for its past delays in meeting its constitutional obligations — to teachers and students — to “eliminate[ ] root and branch” any vestiges of past discrimination. Paradise, 107 S.Ct. at 1066 n. 20, 1067-74; Green, 391 U.S. at 437-39 , 88 S.Ct. at 1693-94 . The temporary layoff provision was not only a remedy for past discrimination against black teachers, but also was part and parcel of the School Corporation’s constitutionally mandated efforts to replace its dual school system with an integrated learning environment.

Rather than allowing the trial court to determine if plaintiffs have proven that the layoff provision was not narrowly tailored to its remedial purpose, the plurality here believes that the plan is “invalid because tied to an improper hiring goal.” Plurality opinion at p. 772. The hiring policy, Resolution 1020, which mentioned the percentage of minority students as a goal for the percentage of minority teachers, was a separate resolution of the Board of Trustees, and, unlike the one in Wygant , not part of, nor compelled by, the collective bargaining agreement. See Wygant v. Jackson Board of Education, 746 F.2d 1152, 1158 (6th Cir.1984), reversed, Wygant, 476 U.S.-, 106 S.Ct. 1842 , 90 L.Ed.2d 260 . That the provision was not tied to any hiring goal is made clear by the fact that any teachers laid off because of the agreement would be hired back first when new openings became available. Def. Brief on Rehearing En Banc 23. Because any gains in the percentage of black teachers would evaporate as soon as budgetary constraints eased, the hiring goal would not be furthered. Also, the small number of white teachers who but for the provision would not have been laid off — perhaps only 13 to 16 people — and the less than 1% increase in the fraction of black teachers belie the suggestion that the provision was tied to the hiring goal. Id. at 22-24. The School Corporation believes that it can present evidence that it considered in advance the “probable size of the anticipated layoff and the probable effects of [the layoff provision] on the laid-off teachers,” id. at 7 n. 2, which would not only establish that it was designed to be narrowly tailored, but also show that it was not intended to achieve the goal of equating the percentage of black teachers to black students. Thus further fact-finding, now made necessary by Wygant, could dispel this first objection of my brethren.

A second reason advanced by both the plurality and concurrence for holding that plaintiffs have proven that the provision was not narrowly tailored as a matter of law is that it erects an “absolute preference” between the races and places the “entire burden” on white teachers. Their opinions ignore our uncertainty over inter alia the extent of past discrimination and its lingering effects, a determination that defines the appropriate extent of the remedy, see Swann, 402 U.S. at 16 , 91 S.Ct. at 1276 , by in effect espousing a per se rule that affirmative action programs that can be characterized as creating an “absolute preference for minorities” can never be narrowly tailored.

The shortcoming of this approach is that the validity of an affirmative action pro *777 gram will then depend on how one chooses to define the benefits bestowed by that program. Any advantage bestowed on a minority by an affirmative action program can be characterized as an “absolute preference” if just that advantage is considered and as “not an absolute preference” if the chosen referent is the larger objective that the advantage is intended to help minorities obtain. Thus in United States v. Paradise, apparently the plurality and concurrence would invalidate the remedy if they chose the referent as the 8 promotions to corporal rank set aside for blacks but would uphold it if they chose the referent as promotion to the corporal rank because blacks had no absolute preference for the remaining 8 openings. See 107 S.Ct. at 1071-72 and n. 30, 1073 (plurality opinion). In Sheet Metal Workers, the Supreme Court upheld the court-ordered establishment of a fund which provided only minority youths with part-time and summer sheet metal jobs, counseling, tutorial services, and financial assistance during apprenticeship, stating that there was no absolute preference for minorities to be union members, as opposed to fund beneficiaries. 106 S.Ct. at 3030, 3053 (plurality opinion). Likewise, in the present case the layoff provision does not create an absolute preference for minorities because it did not prevent whites from teaching in the South Bend schools — the vast majority of those positions continued to be held by whites— or from being hired as teachers to fill positions when no qualified laid-off employee was available. Furthermore, the provision was effective for only three years, the School Corporation expected that few teachers would be affected by it, and the School Corporation provided substitute positions to many of those who were affected.

It is true that Justice Marshall’s Wygant dissent employed the phrase “absolute distinction between the races” to argue that the Wygant layoff provision was less burdensome than a no-minority layoff provision. 106 S.Ct. at 1865. But nowhere did he suggest that if an affirmative action program can be characterized as creating an “absolute distinction,” then it is not narrowly tailored as a matter of law. Such a per se approach is bothersome. Whether a plan can be characterized as creating an “absolute distinction” is but one fact to consider. Given that such a characterization is easily subject to manipulation to produce any desired result, it is not a very probative fact. We should instead weigh the extent of the public employer’s interest, the precise burdens imposed on innocent non-minorities, and the adequacy of less onerous alternatives. Here remand is required because, unlike Wygant, it cannot be decided if this provision is narrowly tailored without first resolving factual questions which will determine a proper appraisal of all three of these factors.

In the present case the temporary no-minority layoff provision, as drastic as it is, may be necessary to eliminate the effects of the School Corporation’s past discrimination and continued default of its constitutional obligations. The concurrence herein is willing to assume that a proportional layoff plan, or even a disproportional layoff plan, may have been supportable by the School Corporation’s remedial purpose. However, given the twenty-plus years of delay in dismantling its dual school system and the resultant discriminatory atmosphere discouraging blacks from teaching at its schools, the School Corporation could well have been justified in deciding that a drastic-but-temporary remedy was needed to bring about an immediate break with its segregationist past, even during times of a fiscal crisis. The School Corporation owed no less to its students and faculty and indeed had a burden of coming forward with “a plan that promises realistically to work, and promises realistically to work now.” Green, 391 U.S. at 439 , 88 S.Ct. at 1694 (emphasis in original). Reducing the number of black teachers at the very time it was attempting to dismantle its dual school system and provide its students with an integrated learning environment that they had been unconstitutionally denied for twenty-plus years would have undermined these efforts. The unconscionable delays in eliminating the vestiges of discrimination counseled against the School Corporation waiting for an end to its fiscal crisis to *778 provide that integrated learning environment.

The Supreme Court has recently recognized that drastic short-term remedies may be needed to compensate for lengthy delays in eliminating past discrimination. In United States v. Paradise, the Court upheld a court-imposed 50% promotion quota for black Alabama state troopers although the relevant labor pool was only 25% black. 107 S.Ct. at 1068-70, 1071-72 (plurality opinion). The Court concluded that “[i]t would have been improper for the District Judge to ignore the effects of the Department’s delay and its continued default of its obligation to develop a promotion procedure, and to require only that, commencing in 1984, the Department promote one black for every three whites promoted.” Id. at 1072. Instead, the 50% promotion quota “provided an accelerated approach to achieving [the 25%] goal to compensate for past delay” and was consistent with its school desegregation cases which have “recognized the importance of expediting elimination of the vestiges of longstanding discrimination.” Id. at 1072 n. 30 and n. 31. In the present case a trier of fact could justifiably conclude that plaintiffs failed to prove that the layoff provision was not narrowly tailored to ending the School Corporation's longstanding default of its constitutional affirmative duty to dismantle all vestiges of discrimination. No less burdensome layoff provision might bring about the same benefits as quickly, and the extent of the School Corporation’s past discrimination and delays could justify the burdens imposed; therefore, remand is necessary.

The efforts of the School Corporation to meet its constitutional obligation to replace its dual school system with an integrated learning environment and to eliminate the lingering effects of its discrimination against black teachers cannot be lightly dismissed. Without further fact-finding as to the extent of the School Corporation’s compelling interest, the burdens imposed on innocent white employees, and the adequacy of less onerous alternatives, this Court cannot determine whether the School Corporation’s layoff provision is narrowly tailored. Plaintiffs’ failure to meet their burden of proving the invalidity of the provision cannot be masked by reliance on talismanic factors shortcutting important factual determinations and yielding clear yet erroneous results. Therefore I respectfully dissent.