discussing the application of the Court’s opinions in Wygant v. Jackson Bd. of Education, 476 U.S. 267, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986)
How later courts described this case
- discussing the application of the Court’s opinions in Wygant v. Jackson Bd. of Education, 476 U.S. 267, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986)
- discussing the importance of the “narrow tailoring” requirement for affirmative action plans
- "Remedying past discrimination is not necessarily the only government purpose sufficiently compelling to justify the remedial use of race.’’
Written by the judges who cited it.
The opinion
FAIRCHILD, Senior Circuit Judge,
with whom Circuit Judges CUMMINGS, WOOD, Jr., and CUDAHY join, dissenting. I address one additional facet of the case which I find troubling.
The judges in the majority decline to direct the district court on remand to decide whether the Board had an adequate basis for belief that affirmative action was required to remedy past discrimination. They consider that inquiry unnecessary because they conclude that in any event, the formula included in the 1980-83 collective bargaining agreement went too far.
With all respect, it seems to me that if there were a proper basis for remedial action, overbreadth of the formula should not end the case.
Assuming that the majority is correct in determining that the formula cannot be sustained, particularly under worst-case scenarios, I suggest that the focus should then be on whether the departure from strict seniority which actually occurred can, in whole or in part, be justified as affirmative action by finding whether the Board had an adequately based belief that past discrimination required remedial action.
We know that before the 1982 lay-off, 13.0% of the teachers were black. Upon the lay-off, the percentage increased to 13.8%. Did the Board then have an adequate basis for belief that there had been discrimination against blacks in the past? Did it have an adequate basis for belief that but for the discrimination, the percentage would have been 13 or some higher figure? If the facts were developed on remand and would justify affirmative action sufficient to maintain 13%, only those plaintiffs who would not have been laid-off if only the 13% level were maintained would be entitled to relief.
Put another way, if the formula went too far, then accepting the principle that properly based affirmative action is permissible, Wygant, 106 S.Ct. at 1847, it seems to follow that recovery in this case should be *786 limited to those plaintiffs whose lay-offs fell between what action would have been permissible and what was actually done.
I am aware that in Wygant the majority of the justices of the Supreme Court focused on the formula as is being done here. Respectfully, however, it seems to me that there is room to address whether, and to what extent, the departures from strict seniority which actually occurred were justified as a remedy for a level of minority representation held down by past discrimination.