Amicus Curiae Brief — Wygant v. Jackson Board of Education

No. 84-1340

IN THE

Supreme Court of the Anuited

OCTOBER TERM, 1985

WENDY WYGANT, SUSAN LAMM, JOHN KRENKEL,

KAREN SMITH, SUSAN DIEBOLD, DEBORAH BREZE-

ZINSKI, CHERYL ZASKI, and MARY ODELL,

Petitioners,

v.

JACKSON BOARD OF EDUCATION, Jackson, Michigan,

RICHARD SURBROOK, President, DON PENSON, ROB-

ERT MOLES, MELVIN HARRIS, CECELIA FIERY,

SADIE BARHAM, and ROBERT F. COLE,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF OF ANTI-DEFAMATION LEAGUE

OF B’NAI B’RITH, AMICUS

CURIAE, IN SUPPORT OF PETITIONERS

ROBERT A. HELMAN

(Counsel of Record )

MICHELE ODORIZZI

DANIEL M. HARRIS

231 South LaSalle Street

Chicago, Illinois 60604

(312) 782-0600

Attorneys for Amicus Curiae

Of Counsel:

JUSTIN J. FINGER

MEYER EISENBERG

JEFFREY P. SINENSKY

Jit. L. KAHN

ANTI-DEFAMATION LEAGUE OF

B’NAI B’RITH

823 United Nations Plaza

New York, New York 10017

MAYER, BROWN & PLATT

231 South LaSalle Street

Chicago, Illinois 60604

i

QUESTION PRESENTED

In 1972, the Jackson, Michigan School Board decided that

the racial composition of the faculty in each of its elementary

and secondary schools ought to be the same as the racial

composition of the student body as a whole. In order to achieve

this goal, the School Board negotiated a collective bargaining

agreement with the teachers’ union under which minority

applicants were to be preferred for new positions until the

percentage of black teachers increased from its 1972 level of

approximately 8% to the level of black student enrollment

(approximately 16% in 1972). The agreement also provided

that layoffs would be according to seniority, except that more

senior white teachers would be laid off out of turn whenever

that was necessary to prevent the percentage of minority

teachers from declining.

In 1981, almost a decade after the adoption of this plan,

ten white teachers were laid off out of turn so that less senior

black teachers could be retained. The courts below held that

these layoffs did not violate the plaintiff teachers’ Fourteenth

Amendment rights to equal protection.

The question presented is whether a school board may

voluntarily adopt a racially segregated layoff system which

abrogates the seniority rights of innocent employees when

a) the record is devoid of any evidence that there had

been racial discrimination in hiring at any relevant time in

the past; and therefore

b) the plan was not tailored to ensure that only actual

victims of past discrimination in hiring were given prefer-

ential seniority rights.

‘3

TABLE OF CONTENTS

QUESTION PRESENTED 0.0... .ecescsesesececececececseneeeeceees

TABLE OF AUTHORITIES ..000...........ecececesesesesesececeeeeeees

ARGUMENT

I. The Jackson School Board’s " Discriminatory

Layoff Policy Was Not Remedial And Hence

Violates The Equal Protection Clause Of The

Il.

Fourteenth Amendment..

A.

The School Board’s Racial Preference Was

Not Designed To Eliminate A Conspicuous

Racial Imbalance Caused By Past In-

tentional Discrimination

The School Board’s Racial Preference Can-

not Be Upheld On The Basis Of Minority

Students’ Need For Minority Role Models..

The School Board’s Racial Preference Can-

not Be Justified As Necessary To Forestall

Racial Unrest sepinentineiimatin

The Racially Segregated Seniority System Un-

duly Trammeled The Rights Of Innocent Third

REL De a Acted a Ne a

The Remedy Was Not Appropriately Tailored

To Serve A Remedial Purpose ...............ccccccceeeeeee

SE iicensiciciendhieeebntornsidattnenectintinacnsetianinhettiemnsepseces

11

ad

18

20

TABLE OF AUTHORITIES

Cases

Adickes v. Kress & Co., 398 U.S. 144 (1970)...........

Blonder-Tongue Laboratories, Inc. v. University of

Illinois Foundation, 402 U.S. 313 (1971) ............

Boston Police Patrolmen’s Ass’n, Inc. vy. Castro,

a re CD thks nctttiiniscsenaictsttisciinrcessencse

Brown v. Board of Education, 347 U.S. 483 (1954)

Buchanan v. Warley, 245 U.S. 60 (1917) ......-:c00+

Capital Cities Cable Inc. v. Crisp, 104 S. Ct. 2694

Colorado Anti-Discrimination Commission v. Con-

tinental Air Lines, Inc., 372 U.S. 714 (1963) ......

County of Los Angeles v. Davis, 440 U.S. 625

Dayton Board of Education v. Brinkman, 433 U.S.

Ge Gee Dladceensctinnnenstpppevecccqenapqzeaqneavesnegenspeeseances

De Funis v. Odegaard, 416 U.S. 312 (1974)............

Fort Bend Indep. School Dist. v. City of Stafford,

651 F.2d 1133 (Sth Cir. 1981 )...........cccecccesseeeeeeees

Fullilove v. Klutznick, 448 U.s. 448 (1980).............

General Building Contractors Ass'n, Inc. v. Penn-

sylvania, 458 U.S. 375 (1982) 2... cccccecseeeseerseeneees

Goins v. Allgood, 391 F.2d 692 (Sth Cir. 1968).......

Hazelwood School District vy. United States, 433

OE I 6 BIG D cereeerrcnrenntanencsenencciancanmneesesiqneene

Hernandez v. Texas, 347 U.S. 475 (1954).........s000

Hirabayashi v. United States, 320 U.S. 81 (1943) ..

International Brotherhood of Teamsters v. United

States, 431 U.S. 324 (1977) ....cccccccccccccsscccssscesesees

iv

Jones v. Alfred H. Mayer, Co., 392 US. 409

Lee v. Washington, 390 U.S. 333 (1968)..............2.-

Los Angeles Dept. of Water & Power vy. Manhart,

Se ee Pe Ge aiteenittetichenccctncinnnntcinemicasecs

Loving v. Virginia, 388 U.S. 1 (1967) ........ccccccccseeees

McCabe v. A., T., & S.F. Ry. Co., 235 US. 151

ERE oO | See ae ee

McDonald v. Santa Fe Trail Transport Co., 427

SN SE OP UU dada ba cietitesncineeiihitieiencnsentinidnenenenenie

Memphis Fire Department v. Stotts, 104 S.Ct. 2576

Bree ncnciteesinectpecntinsiaevesiuclliiiatdmeal pisibiiemenemionns

Milliken v. Bradley, 418 U.S. 717 (1974) ....ccssssssee:

Newport v. Fact Concerts, Inc., 453 U.S. 247

TE eatailteittenteeietdatiateaittaciieenncectariineeneniiaaiacei

Oliver v. Kalamazoo Bd. of Educ., 706 F.2d 757

(6th Cir. 1983) NS NE

Palmer v. Thompson, 403 U.S. 217 (1971) ......c..000--

Palmore v. Sidoti, 104 S. Ct. 1879 (1984) ..............

Pasadena City Bd. of Education v. Spangler, 427

U.S. 424 (1976) ...... “a

Peters v. Kiff, 407 U.S. 493 (1972) cae

Plessy v. Ferguson, 163 U.S. 537 (1896) .......c.cces000-

Rogers v. Paul, 382 U.S. 198 (1965)..

Rose v. Mitchell, 443 U. S. 545 (1979).

Rucker v. Higher Educational Aids Bd., 669 F. 24

1179 (7th Cir. 1982) ...............

Runyon v. McCrary, 427 U.S. 160 ( 1976)... sacineainapdieied

San Antonio Ind. School Dist. v. Rodriguez, 411

CT OU GID ccisectesentostiiniorentnieiit estes

Setser v. Novack Inv. Co., 657 F. 2d 962 (8th Cir.

PAGE

2

19

22

18

22

2, 22

2, 8, 25,

PAGE

Shelley v. Kraemer, 334 U.S. 1 (1948) ......ccccccseeeeoes 2,22

Sullivan vy. Little Hunting Park, 396 U.S. 229

€ BODY ccecccsncecesenmnsmntecscejensengunennnssssnnnnssenseensconsecsessse 2

Sweatt v. Painter, 339 U.S. 629 (1950) .......sseeseeees 2

United Steelworkers of America v. Weber, 443 US.

BOD CBO Pscsccccscsscrssscesscceiennnsenssenccscsosscsssesseanensessee 2, 4, 5, 13,

20, 24

University of California Regents v. Bakke, 438 U.S.

DE CBI) rscctcsscseccinccecennssorssscccsiossesssscasecsssonsccesees a s Ow

27

Valentine v. Smith, 654 F.2d 503 (8th Cir.), cert.

denied, 454 U.S. 1124 (1981) ........ccccscceeeereeeessees 10

Watson v. City of Memphis, 373 U.S. 526 (1963)... 19

Williams v. City of New Orleans, 729 F.2d 1554

( Sela Cir. 1964) ...ccccccccceccsccssorscerccccccsccseccsveeccsoceocses 26

Wright v. Georgia, 373 U.S. 284 (1963) ..........ece0e0 19

Wygant v. Jackson Board of Education, 546 F.

Supp. 1195 (E.D. Mich. 1982) .........cccccseesseeeeeneees 3, 15,21

Wygant v. Jackson Board of Education, 746 F.2d

0152 (Geis Cie. 19GO) nccccccccscccscescccccccsscsssccsccescssseses 6, 11, 18

Other Authorities

Coleman Report on Equality of Educational

Opportunity ( 1966) .........cccsecseseererseesensenensenennees 17

Hanushek, Education and Race ( Heath 1972)........ 17

Hanushek, Throwing Money at Schools, | Journal

of Policy Analysis and Management 19 (1981)... 17

Hearings- before the Select Committee on Equal

Educational Opportunity of the United States

Senate, 91st Congress 1970, p. 108 ...........--seeseees 18

110 Cong. Rec. 7213 ( 1964) ........:ccscccseeeseneeeeerneeeees 23

R. Stern & E. Gressman, Supreme Court Practice

458-61 (Ste O06. 1976) ....ccccccccccccscesecsecccccccceccsessesee 13

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Sine Tit Ae:

IN THE

Supreme Court of the Gnited States

OcTOBER TERM, 1985

WENDY WYGANT, SUSAN LAMM, JOHN KRENKEL,

KAREN SMITH, SUSAN DIEBOLD, DEBORAH BREZE-

ZINSKI, CHERYL ZASKI, and MARY ODELL,

Petitioners,

v.

JACKSON BOARD OF EDUCATION, Jackson, Michigan,

RICHARD SURBROOK, President, DON PENSON, ROB-

ERT MOLES, MELVIN HARRIS, CECELIA FIERY,

SADIE BARHAM, and ROBERT F. COLE,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF OF ANTI-DEFAMATION LEAGUE

OF B’NAI B’RITH, AMICUS

CURIAE, IN SUPPORT OF PETITIONERS

CONSENT OF THE PARTIES

Petitioners and Respondents have consented to the filing of

this brief and their letters of consent have been filed with the

Clerk of the Court.

INTEREST OF THE AMICUS CURIAE

The Anti-Defamation League of B’nai B’rith was or-

ganized in 1913 as a section of B’nai B’rith, the oldest civic

service organization of American Jews, to advance good will

and mutual understanding among Americans of all creeds and

2

races and to combat racial and religious prejudice in the United

States. The Anti-Defamation League is vitally interested in

protecting the civil rights of all persons, be they members of a

minority or the majority, and in assuring that every individual

receives equal treatment under the law regardless of his or her

race or religion.

Among its many other activities directed to these ends, the

Anti-Defamation League has in the past filed amicus briefs in

this Court urging the unconstitutionality or illegality of racially

discriminatory laws or practices in cases such as Shelley v.

Kraemer, 334 U.S. 1 (1948); Sweatt v. Painter, 339 U.S. 629

(1950); Brown v. Board of Education, 347 U.S. 483 (1954);

Colorado Anti-Discrimination Commission v. Continental Air

Lines, Inc. 372 U.S. 714 (1963); Jones v. Alfred H. Mayer Co.,

392 U.S. 409 (1968); Sullivan v. Little Hunting Park, 396 US..

229 (1969); San Antonio Ind. School Dist. v. Rodriguez, 411

U.S. 1 (1973); De Funis v. Odegaard, 416 U.S. 312 (1974);

Runyon v. McCrary, 427 U.S. 160 (1976); McDonald v. Santa

Fe Trail Transport Co., 427 U.S. 273 (1976); University of

California Regents v. Bakke, 438 U.S. 265 (1978); County of

Los Angeles v. Davis, 440 U.S. 625 ( 1979); United Steelworkers

of America v. Weber, 443 US. 193 (1979); Fullilove v.

Klutznick, 448 U.S. 448 (1980); Boston Police Patrolmen’s

Ass'n, Inc. v. Castro, 461 U.S. 477 (1983); Palmore v. Sidoti,

104 S. Ct. 1879 (1984); and Memphis Fire Department v.

Stotts, 104 S.Ct. 2576 (1984).

In all of these cases, the Anti-Defamation League has

taken the position that each person has a constitutional right to

be judged on his or her individual merits, rather than as part of

a particular racial or ethnic group. A necessary corollary of this

view is that employment preferences can never be accorded to

ail members of a particular minority on a class-wide basis even

as a remedy for employment discrimination; instead, any such

preferences must be carefully limited to those who have in fact

been the victims of discrimination in employment.

3

The Anti-Defamation League shares the concern of the

courts below that school boards be permitted to build racially

diverse faculties responsive to the needs of all their students.

Alternatives supported by the Anti-Defamation League to

achieve this result include outreach programs to identifiable

underrepresented minorities, speciai training and educational

assistance for deprived applicants, and the consideration of

merit-based alternatives to strict seniority systems. However,

the Anti-Defamation League urges this Court to reject the

concept adopted in the decision below that a school board is

entitled to employ permanent quotas in order to create and

maintain racial proportionality between teachers and students.

Such a concept is wholly contrary to the basic con-

stitutional principles that all persons are entitled to be free from

discrimination on grounds of race, religion, creed, sex or

national origin, and that each person has a right to be judged

on the basis of his or her own individual merit — not on the

basis of the ethnic or racial group to which he or she happens to

belong. It is these fundamental principles that form the basis

for our argument for reversal of the decision below.

STATEMENT OF THE CASE

Jackson is a community of about 150,000 in south-central

Michigan. The district judge found that prior to 1953, there

were no black teachers employed by the Jackson public school

system. Wygant v. Jackson Board of Education, 546 F. Supp.

1195, 1197 (E.D. Mich. 1982). By 1969, 15.2% of the student

population and 3.9% of the faculty was black. At that point, the

School Board began considering increasing its hiring of minor-

ity teachers. Over the next two years, its efforts to hire

minorities increased the representation of minorities on the

faculty to between 8.3% and 8.5%; during that time the black

student population remained fairly constant. 546 F.Supp. at

1201. Although no evidence concerning work-force statistics

4

was introduced below, United States census figures show that in

1970 blacks comprised only 3.94% of the labor force in the

Jackson, Michigan standard metropolitan statistical area, 2.01%

of persons in that area with four years or more of college

education and 2.64% of the area’s elementary and secondary

school teachers. 1

In 1972, racial tensions led to violence at Jackson High .

School. A few months later, the School Board proposed a

collective bargaining agreement under which racial preferences

in hiring would be used to increase the percentage of black

teachers in each of its schools to match the percentage of

minority students in the Jackson school system as a whole. To

Protect these new minority hirees from layoffs, the Board

Proposed a change in the “last hired-first fired” provision of the

collective bargaining agreement, requiring white teachers to be

laid off out of turn when layoffs based on seniority would

reduce the percentage of minority teachers. Despite the

Opposition of 96% of its members to such a provision, the

teachers’ union finally agreed to this proposal and the collective

bargaining agreement was amended to provide as follows: ©

“Article XII.B.1 In the event that it becomes neces-

Sary to reduce the number of teachers through layoff from

employment by the Board, teachers with the most seniority

in the district shall be retained, except that at no time will

there be a greater percentage of minority personnel laid off

than the current percentage of minority personnel employed

at the time of the layoff.... Each teacher so affected will

be called back in reverse order for positions for which he is

" ' ). Census figures are

a proper subject for judicial notice. See Rose v. Mitchell, 443 US.

545, 571 n. 11 (1979); Castaneda v. Partida, 430 U.S. 482, 486 n. 6

(1977); Hernandez v. Texas, 347 US. 475, 480 n. 12 (1954); Goins v.

Allgood, 391 F.2d 692, 697 (Sth Cir. 1968) (“the courts take judicial

notice of the census figures”). See also United Steelworkers of

America v. Weber, 443 U.S. 193, 198 n. 1, 204 n. 4 (1979) (taking

judicial notice of exclusion of blacks from craft unions and of

unemployment statistics ).

5

certificated maintaining the above minority balance.” (Em-

phasis supplied. )

This provision remained in the collective bargaining agree-

ment throughout the 1970’s. Although it is not entirely clear

what statistics are in the record, it appears that the percentage

of minority teachers had increased to approximately 13.4% by

the 1981-1982 school year. By 1982, the minority student

population had increased to approximately 26%.? The 1980

census figures indicate that blacks were still a relatively small

percentage of the relevant work force—4.2% of elementary and

secondary school teachers—and an even smaller percentage of

college educated workers (2.96%) and of the workforce as a

whole (3.98%) in the Jackson area.

In 1981, ten white teachers were laid off out of turn solely

because of their race under the terms of the collective bargain-

ing agreement. They brought suit in the United States District

Court for the Eastern District of Michigan challenging their

layoffs as violative of the Constitution and the federal civil

rights laws.

The district court granted the School Board’s motion for

summary judgment, dismissing plaintiffs’ Title VII claims on

the ground that they had failed to exhaust their administrative

remedies and holding that the affirmative action plan did not

violate the Equal Protection Clause of the Fourteenth Amend-

ment. In ruling on plaintiffs’ equal protection claim, the court

applied the standard set forth in United Steelworkers of Amer-

ica v. Weber, 443 U.S. 193 (1979), for judging the legality of

privately negotiated affirmative action plans under Title VII,

holding that the School Board need only demonstrate that its

use of a racially segregated seniority system was “ ‘substantially

2 See Sixth Circuit Joint Appendix at 15; Table A to Petitioners’

Brief.

3 Plaintiffs also challenged their layoffs as violative of the Civil

Rights Act of 1866, 42 U.S.C. § 1981; the district court held that the

statute incorporated the constitutional standard and therefore dis-

missed that claim as well.

6

related’ to the objectives of remedying past discrimination and

correcting ‘substantial’ and ‘chronic’ underrepresentation” of

minorities. Jd. at 1202. In determining that there was

“substantial and chronic underrepresentation” of minorities on

the Jackson faculty, the court compared the percentage of

minority teachers to the percentage of minority students. It did

so on the ground that

“... teaching is more than just a job. Teachers are role-

models for their students. More specifically, minority

teachers are role-models for minority students. This is

vitally important because societal discrimination has often

deprived minority children of other role models.” 546 F.

Supp. at 1201.

On appeal, the United States Court of Appeals for the

Sixth Circuit affirmed, reasoning that the discriminatory layoff

policy was “a voluntary affirmative action plan designed to

remedy past obvious race discrimination and to meet the

practical problems posed by racial tensions engendered by that

history.” Wygant v. Jackson Board of Education, 746 F.2d 1152,

1159 (6th Cir. 1984). One judge concurred, noting that under

decisions of this Court and the Sixth Circuit itself, the student

population was the wrong yardstick by which to measure

discrimination in the hiring of teachers. Although acknowledg-

ing that the trial judge should have instead compared the

percentage of black teachers to the percentage of blacks in the

relevant labor force, the concurring judge voted to affirm

because there was no evidence in the record that there was not a

conspicuous disparity if this comparison were taken into ac-

count.

SUMMARY OF ARGUMENT

As set forth in the Statement of Interest, the Anti-

Defamation League has always opposed the use of quotas and

other types of class-wide racial preferences as remedies for past

7

discrimination because such remedies ignore the rights of

individuals, treating them only as components of a particular

racial or ethnic group. The race preferential practices instituted

in the Jackson School System are particularly disturbing be-

cause they illustrate the inevitable abuses which arise from the

croup rights concepts; these practices bear no relation to

legitimate affirmative action.

It is beyond question that the racial preference at issue here

was not and was no* intended to be a remedy for past

discrimination in hiring. here was no evidence in the record

below of any discrimination in the hiring of minority teachers at

any relevant point in time. On the contrary, when the proper

comparison is made between black teachers in the school

system and blacks in the workforce, there was not even a

statistical disparity in 1972 when the plan was adopted. Nor

was there any disparity in 1981 when the plaintiffs were laid off.

A fair inference from the opinions below is that the affirmative

action plan was adopted not to remedy discrimination in hiring

but rather to cool racial tensions in 1972.

The use of racial preferences cannot be justified by the fear

of student unrest. Nor can preferences designed to match the

percentage of black teachers to the percentage of black students

be sustained on the ground that black children need black

teachers as role models. At best, this is another form of the

argument that each racial group has a right to some type of

proportional representation in public employment. At worst, it

is a rejection of the concept of equality in education that lies at

the heart of this Court’s desegregation cases.

The preference at issue here also cannot be justified on the

theory that the Fourteenth Amendment protects only racial

minorities or that the white teachers as a group waived their

rights by agreeing to the collective bargaining agreement. The

Equal Protection Clause protects all individuals, regardless of

race, from state-sponsored racial discrimination. The rights

conferred by the Amendment are personal and cannot be

waived by others simply because they belong to the same racial

group.

Finally, even assuming that there had been some type of

past discrimination in employment for the School Board to

remedy in this case, the use of the class-wide preference at issue

here cannot be justified. Memphis Fire Department v. Stotts,

104 S.Ct. 2576 ( 1984), held that a court could not order the use

of a racially-segiegated seniority system in order to protect

gains in minority hiring achieved under a consent decree. We

urge the Court to apply the same principle to “voluntary”

affirmative action plans, allowing a public employer to extend

super-seniority only to those employees that it has appropriate-

ly determined to have been victims of past employment dis-

crimination.

9 /

ARGUMENT |

/

I. THE JACKSON SCHOOL BOARD’S DISCRIMI-

NATORY LAYOFF POLICY WAS NOT REMEDIAL

AND HENCE VIOLATES THE EQUAL PROTECTION

CLAUSE OF THE FOURTEENTH AMENDMENT.

The Jackson School Board’s layoff policy discriminated

against white teachers solely because of their race. It is beyond

dispute that such “[dJistinctions between citizens solely be-

cause of their ancestry are by their very nature odious to a free

people whose institutions are founded upon the doctrine of

equality.” Hirabayashi v. United States, 320 U.S. 81, 100

(1943). As a result, this Court has declined to uphold racial

preferences in employment absent a clear demonstration that

they are appropriately tailored to remedy past discrimination in

the workforce in question and do not unduly trammel the rights

of individual members of the race disfavored by the classifica-

tion.

Where the employer is a governmental entity and equal

protection principles therefore apply, this Court has required

the employer to bear a particularly heavy burden of justifica-

tion. As this Court has held, “A core purpose of the Fourteenth

Amendment was to do away with all governmentally-imposed

discrimination based on race... . Such classifications are sub-

ject to the most exacting scrutiny; to pass constitutional muster

they must be justified by a compelling governmental interest

and must be necessary... to the accomplishment’ of its legiti-

mate purpose.” Palmore v. Sidoti, 104 S.Ct. 1879, 1881-1882

(1984) (citations omitted and footnote omitted.)

It is not enough in such cases for the employer to show that

its plan tended to have a remedial effect; the plan must also be

based on findings by a competent body that discrimination did

in fact exist. As Justice Powell stated in University of California

Regents v. Bakke, 438 U.S. 265, 307 (1978), this Court has

10

“never approved a [government] classification that aids per-

sons perceived as members of relatively victimized groups at

the expense of other innocent individuals in the absence of

judicia', legislative, or administrative findings of constitutional

Or statutory violations.”

Very few racial classifications can survive the scrutiny

required by the Fourteenth Amendment. In fact, since approv-

ing the detention of Japanese-Americans during World War II,

this Court has approved only one law which discriminated on

the basis of race. In Fullilove v. Klutznick, 448 U.S. 448

(1980), this Court upheld a federal law that set aside 10% of

the federal funds granted for local public works projects for

minority contractors. This federal program, however, was

based on congressional findings that past intentional dis-

crimination against minorities had caused a “marked disparity

in the percentage of public contracts awarded to minority

business enterprises.” Jd. at 478. (Opinion of Burger, C. J.)§

“See also Valentine v. Smith, 654 F.2d 503, 508 (8th Cir.), cert.

denied, 454 U.S. 1124 (1981), where the court stated that:

“Because the justification for race-conscious affirmative action is

remedying the effects of past discrimination, a predicate for the

remedy is that qualified persons make findings of past dis-

crimination before the plan is implemented. Absent Jindings of

past discrimination, courts cannot ascertain that the purpose of the

affirmative action program is legitimate. Such findings enable

courts to ensure that new forms of invidious discrimination are

not approved in the guise of remedial affirmative action.”

(Emphasis supplied. )

5 In his concurring opinion, Justice Powell agreed that “purpose-

ful discrimination contributed significantly to the small percentage of

federal contracting funds that minority business enterprises have

received.” Id. at 506. He concluded that “enactment of the set-aside

is designed to serve the compelling governmental interest in redres-

sing racial discrimination.” Jd. at 508.

ll

A. The School Board’s Racial Preference Was Not Designed

To Eliminate A Conspicuous Racial Imbalance Caused By

Past Intentional Discrimination.

The Jackson layoff policy stands in marked contrast to the

affirmative action plan this Court approved in Fullilove. When

the Jackson racial quota was adopted, apparently in response to

student unrest, there were no findings by either the School

Board or anyone else that past intentional discrimination

against minorities had caused a manifest racial imbalance in the

Jackson teaching staff. Although they clearly bore the burden

of justification, the defendants also did not present evidence on

this issue in their motion for summary judgment.®

Furthermore, there was no conspicuous racial imbalance

on the faculty in any relevant year. The courts below concluded

that there was “obvious race discrimination” in hiring because

there was a significant disparity between the percentage of

blacks on the Jackson teaching staff and the percentage of

blacks in the Jackson student body. Wygant v. Jackson Board

of Education, 746 F.2d 1152, 1159 (6th Cir. 1984). There is no

reason, however, to infer discrimination in the hiring of teachers

from a difference between the percentage of minorities on the

faculty and minorities in the student population. Statistics are

considered relevant, although not dispositive, in employment

discrimination cases on the assumption articulated in Jnter-

national Brotherhood of Teamsters v. United States, 431 U.S.

6 As movants for summary judgment, the defendants bore the

burden of showing the “absence of a genuine issue as to any material

fact....” Adickes v. Kress & Co., 398 U.S. 144, 157 (1970). Thus,

defendants’ failure to tender employment statistics proving past

discrimination required the denial of their motion even though

plaintiffs also failed to provide the court with the appropriate

statistics. Jd. at 160 (“[W]here the evidentiary matter in support of

the motion does not establish the absence of a genuine issue, summary

judgment must be denied even if no opposing evidentiary matter is

presented.””) (emphasis in original, citation omitted )

12

324, 340-341 n.20 (1977), that even-handed hiring and promo-

tion will eventually produce a workforce that has approxi-

mately the same racial composition as the workforce at large.

Because teachers are selected from the relevant local labor

force, and not from the student population, it is to that

population that any comparison must be drawn.

In Hazelwood School District v. United States, 433 U.S.

299 (1977), this Court specifically rejected an attempt to use

the student population as a basis for comparison in an employ-

ment discrimination case, holding that the workforce was the

only relevant indicator.

“There can be no doubt... 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.” Id.

at 308. (Emphasis supplied. )

See also Oliver v. Kalamazoo Bd. of Educ., 706 F.2d 757, 762

(6th Cir. 1983), where the Sixth Circuit applied Hazelwood to

reverse the very district court decision on which the district

court in this case had relied as authority for the proposition that

the student population could be used to measure discrimination.

In the instant case, according to United States Census

figures, in 1970 the percentage of blacks in the “qualified public

school teacher population in the relevant labor market” was

between 2% and 3%. The percentage of blacks in the local

labor force as a whole was a little less than 4% in 1970. In

1969, however, 3.9% of the total Jackson teaching staff was

black; by 1972 the percentage of minorities on the Jackson

teaching staff had increased to between 8.3% and 8.5%. These

statistics do not evidence “obvious race discrimination” against

blacks. If anything, they suggest the opposite. Thus, there was

13

no evidence of prior discrimination to justify the imposition of a

“remedial” quota.”

Because there was no “conspicuous racial imbalance” on

the Jackson faculty, there was no remedial basis for a racial

preference under the analysis adopted in Fullilove. The same is

true even if this Court were to follow the iower courts and apply

the arguably more lenient standard set forth in United Steel-

workers of America v. Weber, 443 U.S. 193 (1979), in ruling on

plaintiffs’ claims under the Fourteenth Amendment.® In Weber

7 Even if there had been discrimination prior to 1969, the

adoption of the quota used in this case would be inappropriate. This

Court has held that a remedy must be designed “to restore the victims

of discriminatory conduct to the position they would have occupied in

the absence of such conduct.” Milliken v. Bradley 418 U.S. 717, 746

(1974). Given that the percentage of blacks in the relevant local

labor force was somewhere between 2% and 4%, it is plain that, even

if there had been findings of discrimination prior to 1969, the

remedial quota of 15.9% far overshot the mark. See Williams v. City

of New Orleans, 729 F.2d 1554, 1562 (Sth Cir. 1984) (en banc)

(“quota’s target of 50% blacks in all [police] ranks was unsupported

by the record . . .” where “even if hiring and promotions on the [New

Orleans Police Department] had been conducted free of racial

considerations, by 1980 blacks would have comprised only 40.7% of

all sergeants, 39.4% of all lieutenants, 37.4% of all captains, and 30%

of all majors.”)

® This Court has discretion to resolve this case on the basis of the

federal civil rights laws even though the statutory questions decided

below under Title VII and § 1981 were not included in the petition for

certiorari. See, e.g., Capital Cities Cable, Inc. v. Crisp, 104 S.Ct. 2694,

2699-700 { 1984); Newport v. Fact Concerts, Inc., 453 U.S. 247, 255-

57 (1981); Peters v. Kiff, 407 U.S. 493, 495 (1972); Blonder-Tongue

Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313,

319-21 (1971); R. Stern & E. Gressman, Suprem= Court Practice 458-

61 (Sth ed. 1978).

That discretion has been exercised in circumstances very similar

to those presented here. For example, in University of California

Regents v. Bakke, 438 U.S. 265 (1978), this Court decided a racial

(Footnote continued on following page.)

14

this Court held that a private employer subject to Title VII

could voluntarily adopt an affirmative action plan that used

racial classifications if the plan was “designed to eliminate

conspicuous racial imbalance in traditiorally segregated job

categories.” Jd. at 209. Courts interpreting Weber have made it

clear that under Title VII, as under the Fourteenth Amend-

ment, the employer must first demonstrate the remedial nature

of its plan. Thus, in Setser v. Novack Inv. Co., 657 F.2d 962,

968 (8th Cir. 1981), the court noted that:

“The first burden on the employer in a reverse dis-

crimination suit is to produce some evidence that its

affirmative action program was a response to a conspicuous

racial imbalance in its work force and is remedial. Some

indication that the employer has identified a racial imba-

lance in its work force is necessary to ensure that new forms

of invidious discrimination are not approved in the guise of

remedial affirmative action.” (Emphasis supplied. )

In this case, the School Board has utterly failed to meet its

burden to establish the remedial nature of its racial classifica-

tion.

B. The School Board’s Racial Preference Cannot Be Upheld

On The Basis Of Minority Students’ Need for Minority

Role Models.

The opinions below suggest that, even if there had not

been past discrimination in the hiring of minority teachers, the

School Board acted lawfully in laying off white teachers out of

turn because it had another “remedial” goal: to ensure that

( Footnote continued from preceding page.)

preference case on the basis of Title VI of the Civil Rights Act of 1964,

even though the California Supreme Court “focused exclusively upon

the validity of the special admissions program under the Equal

Protection Clause,” id. at 281, and “the parties neither briefed nor

argued the applicability of Title VI of the Civil Rights Act of 1964. ..

[until this Court] requested supplementary briefing on the statutory

issue.” Id. at 281.

15

disadvantaged black students had an appropriate number of

black teachers to serve as “role models.” As the district court

put it, “teaching is more than just a job. Teachers are role-

models for their students. More specifically, minority teachers

are role-models for minority students.” Wygant v. Jackson

Board of Education, 546 F.Supp. 1195, 1201 (E.D. Mich.

1982). Therefore, in order to assure students racially com-

patible teachers, “the ‘faculty ought to begin to approximate

the percentage of minority students in the district.’ ” Jd. at 1201.

It is beyond dispute that a school board may strive to

create an integrated faculty that reflects, to a certain extent, the

racial make-up of the community it serves. An integrated

faculty is important not only for minority children, but also to

give children of all races teachers of different racial and ethnic

backgrounds they can look up to and admire. In this case,

however, the School Board was not trying simply to create and

preserve an integrated faculty. Rather, it was attempting to

create and preserve a situation where the percentage of minor-

ity teachers would match the percentage of minority students.

It is difficult to imagine how respondents can demonstrate

a compelling state interest in having the percentage of black

teachers correspond exactly to the racial make-up of the student

body. Certainly, black students do not have a right wo have a

black teacher. On the contrary, this Court has held that

students have an affirmative right to non-discriminatory selec-

tion of their teachers because “racial allocation of faculty denies

[students] equality of educational opportunity. ...” Rogers v.

Paul, 382 U.S. 198, 200 (1965) (per curiam) (matching

9 Under Title VII the courts below have made it clear that

customer preference is no defense to a charge of racial discrimination:

“it is clearly forbidden by Title VII, to refuse on racial grounds to hire

someone because your customers or clientele do not like his race.”

Rucker v. Higher Educational Aids Bd., 669 F.2d 1179, 1181 (7th Cir.

1982) (unlawful to discriminate against white female counselor in

order to cater to the alleged preferences of black clientele for a

counselor of the same race. )

{

16 —

students and teachers on the basis of race violates constitutional

rights of students. ) 1°

The theory that the racial makeup of a faculty should

reflect the racial makeup of the student body is yet another

example of the assumption in many of the quota cases that have

come before this Court that each racial group has a right to its

proportionate share of public jobs. As Justice Douglas pointed

out in DeFunis v. Odegaard, this type of racial balance is simply

not an acceptable goal:

“The purpose of the University of Washington cannot be

to produce black lawyers for blacks, Polish lawyers for

Poles, Jewish lawyers for Jews, Irish lawyers for Irish. It

should be to produce good lawyers for Americans ....”

416 U.S. 312, 342 (Douglas, J., dissenting from dismissal

of case on mootness grounds).

The district: court’s justification of the need for racial

balance in the context of teachers and students is particularly

disturbing, however. Despite the obviously benign intent of the

role model theory, its basic assumption—that black students are

better off being taught by black teachers—bears an uncomfor-

table resemblance to the logic of Plessy v. Ferguson, 163 U:S.

537, 544 (1896), that segregated classrooms were desirable

from the point of view of blacks as well as whites. Taken to its

10 See also Oliver v. Kalamazoo Board of Ed., 706 F.2d 757, 762-

763 (6th Cir. 1983), where the court refused to sustain a court-

ordered minority faculty quota based on approximate black student

percentage, ruling that “[AjJll the remedy to which the students were

entitled [was the] ‘sustained good faith effort to recruit minority

faculty members so as to remedy the effects of any past discriminatory

practices’ ”; Fort Bend Indep. School Dist. v. City of Stafford, 651 F.2d

1133, 1137-1138, 1°40 (Sth Cir. 1981) (In determining whether a

school has achieved “unitary” status, a court should not compare the

racial composition of the school’s teaching staff to the racial com-

position of the student body. The proper test is whether there has

been “sustained good faith effort to recruit minority faculty members

so as to remedy the effects of any past discrimina[tion]. .. .”).

17

extreme, the role model theory could be used to justify the

alignment of faculty along racial lines and the concentration of

black students in particular classes for the purpose of ensuring

appropriate role models.

It should also be noted that the role model theory is of

doubtful validity as a matter of educationa! theory. The 1966

Coleman Report on Equality of Educational Opportunity found

a positive correlation between minority student achievement

and the teacher’s verbal skills and level of experience. The

Coleman Report also found that, even when controlling for

such factors as teacher experience and teacher verbal skills,

there was either no correlation or a slightly negative correlation

between minority student achievement and the proportion of

black teachers. Jd. at 316-319.

These findings were reconfirmed some six years later by

Professor Eric Hanushek of the University of Rochester in

Education and Race (Heath 1972). Professor Hanushek found

positive correlations between teacher verbal ability and minor-

ity student achievement and between the teacher’s level of

experience and minority student achievement. Jd. at 78-88.

Professor Hanushek also found a negative correlation between

minority student achievement and “the percentage of students

with a nonwhite teacher” in the previous year. Jd. at 88.

In 1981 Professor Hanushek reviewed some 130 studies

that followed up on the Coleman Report. See Hanushek,

Throwing Money at Schools, 1 Journal of Policy Analysis and

Management 19 (1981). He found that the “only reasonably

consistent finding seems to be that ‘smarter’ teachers do better

in terms of student achievement.” Jd. at 29.

This literature indicates that minority students perform

better academically when their teachers are chosen on the basis

of merit or seniority than they do when their teachers are

chosen on the basis of racial compatibility. Thus, far from

18

vindicating the rights of minority students, “racial allocation

of faculty denies them equality of educational opportunity.”

Rogers v. Paul, 382 U.S. 198, 200 (1965).*'

The district court’s role model theory, unsupported by the

record and limitless in its implications, cannot justify departure

from accepted principles of equal opportunity in education and

employment. Teachers, like parents and step-parents, may be

important role models for children, but the state has no

legitimate business assigning role models, on the basis of race.

See Palmore v. Sidoti, 104 S.Ct. 1879 (1984) (state may not

consider race of step-parent in deciding custody of step-child ).

See also Loving v. Virginia, 388 U.S. | (1967) (state may not

discriminate against interracial marriages).

C. The School Board’s Racial Preference Cannot Be Justified

As Necessary To Forestall Racial Unrest.

The courts below also attempted to justify the racial

preference at issue here as a legitimate way to meet “the

practical problems posed by racial tensions....” Wygant v.

Jackson Board of Education, 746 F.2d 1152, 1159 (6th Cir.

1984). The desire to avoid racial unrest is an inadequate

justification both on factual and legal grounds. As a matter of

fact, racial violence in 1972 can hardly be used to justify racial

discrimination a decade later. More importantly, this Court has

clearly rejected the notion that racial discrimination may be

justified by a desire to avoid racial unrest.

11 Professor James Coleman agreed whien he told a Senate

Committee in 1970:

“I don’t think it is a service to a child to have him subject to the

same homogeneous environment that he has experienced

throughout his early childhood, and that he experiences when he

leaves school every day.” ( Hearings before the Select Committee

on Equal Educational Opportunity of the United States Senate,

91st Congress 1970, p. 108.)

19

The reasoning of the courts below on this issue once again

bears a disturbing resemblance to the logic employed by the

Court in Plessy v. Ferguson, 163 U.S. 537 (1896). As in the

instant case, the Court in Plessy reasoned that racial classifica-

tions ir -e classroom would avoid racial tension and thereby

promote “the preservation of the public peace and good order.”

Id. at 550. In subsequent cases this Court has consistently

repudiated arguments based on the fear and speculation that

racial violence may occur unless a racial classification is im-

posed. See, e.g., Buchanan v. Warley, 245 U.S. 60 (1917),

where this Court invalidated a Kentucky law forbidding blacks

from buying homes in white neighborhoods:

“It is urged that this proposed segregation will promote the

public peace by preventing race conflicts. Desirable as this

is, and important as is the preservation of the public peace,

this aim cannot be accomplished by laws or ordinances

which deny rights created or protected by the Federal

Constitution.” Jd. at 81.

See also Watson v. City of Memphis, 373 U.S. 526, 535, 537

(1963); Wright v. Georgia, 373 U.S. 284, 293 (1963).'?

Similarly, plaintiffs in this case cannot lawfully be laid off

from their positions in the Jackson public school system on

account of their race in order to avoid the speculative possibility

of racially motivated disorder by others. “Private biases may

be outside the reach of the iaw, but the law cannot, directly or

indirectly, give them effect.” Palmore v. Sidoti, 104 S.Ct. 1879,

1882 (1984). “Public officials sworn to uphold the Constitution

may not avoid a constitutional duty by bowing to the hypotheti-

12 The only modern exception to this line of authority is Lee v.

Washington, 390 U.S. 333 (1968), which condemned racial segrega-

tion in prisons but implicitly authorized temporary racial classifica-

tions when necessary to prevent prison riots. Here, however, the

temporary racial classifications have lasted for thirteen years beyond

the last reported incident of unrest.

20

cal effects of private racial prejudice that they assume to be

both widely and deeply held.” Palmer v. Thompson, 403 U.S.

217, 260-261 (1971) (White, J. dissenting )

Il. THE RACIALLY SEGREGATED SENIORITY SYS-

TEM UNDULY TRAMMELED THE RIGHTS OF IN-

NOCENT THIRD PARTIES.

In addition to being remedial, a voluntary affirmative

action plan that employs racial classifications must also avoid

unnecessarily burdening the rights of innocent parties. As

Justice Powell stated in his concurring opinion in Fullilove:

“A race-conscious remedy should not be approved without,

consideration of an additional crucial factor—the effect of

the set-aside upon innocent third parties.” 448 U.S. at 514.

In the cases in which this Court approved race-conscious

remedial programs, it determined that any injury to white

employees’ expectations of future benefits was offset by the

need to counteract prior pervasive discrimination. The “ex-

pectations” that were frustrated involved an ability to compete

for certain benefits such as new jobs, promotions, future

contracts and the like. Thus, in Fullilove, Congress had

foreclosed white contractors from bidding on only 10% of new

federal contracts worth $4 billion, with waiver provisions in the

event that qualified minority contractors could not be found. In

his concurring opinion, Justice Powell concluded that any

“marginal unfairness to innocent nonminority contractors is not

sufficiently significant—or sufficiently identifiable—to outweigh

the compelling governmental interest in redressing the

[ purposeful ] discrimination that affects minority contractors.”

448 U.S. at 515.

Similarly, in Weber, white employees were foreclosed from

applying for half of the openings in a new craft training

program. Because the craft training program was new, it did

“not involve an abrogation of pre-existing seniority rights.” Id.

at 215 (Blackmun, J. concurring). Furthermore, far from

21

requiring the “discharge of white workers and their replace-

ment with new black hirees,” the plan offered new opportu-

nities to black as well as white workers. Under these circum-

stances and in light of its purpose to remedy a conspicuous

racial imbalance in traditionally segregated job categories, this

Court concluded that the plan did not “unnecessarily trammel

the interests of the white employees.” 443 U.S. at 208.

Defendants argue that in this case too there was no

improper burden imposed on innocent third parties. They point

out that, by the time this case was argued before the Court of

Appeals, only one white teacher, Wendy Wygant, “remained

unemployed as a result of” the discriminatory layoff policy.

Respondents’ Brief in Opposition to Certiorari at 6. Therefore,

defendants assert, the discriminatory policy “has worked to

protect a minority balance without doing harm to the white

majority.” Id. at 6. Defendants also assert that Wendy

Wygant’s right to be free from racial discrimination was waived

by her fellow white employees when they agreed to the

collective bargaining agreement. Defendants thus echo the

district court’s statement that “[i]t is difficult for the court to

conceive how a plan which has been voluntarily adopted by

members of the JEA can invidiously trammel the interests of

white teachers, a majority of the JEA.” Wygant v. Jackson

Board of Ed tion, 546 F.Supp. 1195, 1202 (E.D. Mich.

1982).

There are a number of flaws in defendants’ theory of group

waiver and group injury. First, it must be remembered that,

when originally polled, “[n]inety-six (96) percent of the

teachers expressed a preference for the straight seniority system

and opposed a system that would freeze minority layoffs.” Jd. at

1197. The teachers’ union accepted the policy only after an

unsuccessful strike. Jd. at 1198.19 Thus, the decision to sacrifice

the rights of the most junior white teachers can hardly be

13]t is unclear from the record below whether the seniority

provision was an issue in the strike.

22

described as a wholly voluntary act on the part of the teachers

as a group.

Second, the district court was wrong to regard “white

teachers” as if they were a single entity capable of suffering

injury or waiving their rights. Wendy Wygant is the plaintiff

here; not “white teachers” or the “white race.” The question for

decision is whether Wendy Wygant (and the other individual

plaintiffs) were discriminated against on the basis of their race

in violation of federal law, not whether whites.as a group were

disadvantaged. The federal civil rights laws, like the Con-

stitution, protect individuals, not racial groups. As the Court

held in Shelley v. Kraemer, 334 US. 1, 22 (1948), “The rights

created by the first section of the Fourteenth Amendment are,

by its terms, guaranteed to the individual. The rights estab-

lished are personal rights.” See also McCabe v. A., T., & S.F.

Ry. Co., 235 US. 151, 161-162 (1914); Los Angeles Dept. of

Water & Power v. Manhart, 435 U.S. 702, 708 (1978).

It would be a perilous course indeed for this Court to adopt

defendants’ logic and treat American citizens as if they were

simply components of a racial majority that is not entitled to

judicial protection because it is capable of protecting itself.

This Court has always held that the civil rights laws apply to

people of all races, protecting each individual’s right to fair

treatment. See McDonald v. Santa Fe Trail Transport Co., 427

US. 273 (1976). Telling individuals that they have no

personal rights and that to protect themselves from dis-

crimination they must rely upon their political or economic

power as a racial majority can only encourage them to ignore

legal remedies and rely on the exercise of the group’s power

instead. The end result would necessarily be inimical to the

goals of equal protection and individual liberty embodied in the

Fourteenth Amendment.

When viewed from the perspective of the individual white

teacher laid off out of turn, there is a drastic effect on the rights

of that teacher. The burdening of individual white teachers on

23

account of their race was clearly not necessary to protect the

rights of any individual who had been the victim of employ-

ment discrimination by the Jackson School Board. Even if such

discrimination had existed prior to 1969, there is no evidence

that any of the junior black teachers protected by the preference

in 1981 were the victims of that discrimination. Instead, it is

clear that the preference was created and drastic burdens

imposed on innocent white teachers in order to maintain a

certain type of racial balance.

Imposing burdens on public employees solely because of

their race for the purpose of protecting one racial group’s

supposed share of public jobs is simply not permissible under

our Constitution and civil rights laws.'4 Nor is it in the public

interest. For even if the intent is benign, the allocation of

benefits and burdens on a quota basis is inevitably destructive,

postponing rather than hastening the day “when no govern-

mental decision will be based upon immutable characteristics of

pigmentation or origin.” Fullilove v. Klutznick, supra, 448 U.S.

at 516 (Opinion of Powell, J.).

Ill. THE REMEDY WAS NOT APPROPRIATELY TAI-

LORED TO SERVE A REMEDIAL PURPOSE.

Where a court-ordered remedy is at issue, this Court has

always required that the decree be narrowly tailored to fit “the

nature and extent of the violation constitutionally” proved,

Dayton Board of Education v. Brinkman, 433 U.S. 406, 420

14 Title VII clearly prohibits the use of racially segregated

seniority systems to maintain racial balance. As Senators Clark and

Case, the bipartisan captains of Title VII, explained in their inter-

pretative memorandum, under Title VII, even an employer who has

discriminated before the effective date of the Act and as a result has

an all-white working force “would not be obliged—or indeed, per-

mitted—to fire whites in order to hire Negroes, ... or, once Negroes

are hired, to give them special seniority rights at the expense of the

white workers hired earlier.” Teamsters v. United States, 431 U.S. 324,

350-351 (1977), quoting from 110 Cong. Rec. 7213 (1964) (empha-

sis added ).

24

(1977); see also General Building Contractors Ass’n, Inc. v.

Pennsylvania, 458 U.S. 375 (1982). In Fullilove and Weber,

however, the Court took the position that where a voluntary

affirmative action plan was involved, a certain degree of

imprecision in the means of remedying past discrimination

could be tolerated. Nevertheless, even in the context of a

voluntary plan, there must be a reasonable relationship be-

tween the plan and “the objective of remedying the present

effects of past discrimination.” Id. at 480. (Opinion of Burger,

C.J.) In Fullilove, the Court found that the necessary con-

nection existed because “[t}]he percentage chosen for the set-

aside is within the scope of congressional discretion.... The

choice of a 10% set-aside . . . falls roughly halfway between the

present percentage of minority contractors and the percentage

of minority group members in the Nation.” Jd. at 513-514.

(Opinion of Powell, J.) Moreover, the Court emphasized the

temporary nature of the program: “As soon as the PWEA

[public works] program concludes, this set-aside program

ends. The temporary nature of this remedy ensures that a race-

conscious program will not last longer than the discriminatory

effects it is designed to eliminate.” Id. at 513. (Opinion of

Powell, J.)

Similarly, in Weber, the Court noted that the plan was “a

temporary measure; it is not intended to maintain racial

balance, but simply to eliminate a manifest racial imbalance.

Preferential selection of craft trainees at the Gramercy plant

will end as soon as the percentage of black skilled craftworkers

in the Gramercy plant approximates the percentage of blacks in

the local labor force.” Id. at 208-209.

In this case, the racial preference is neither temporary nor

tailored with an eye toward remedying the effects of past

discrimination. Instead, despite the fact that the percentage of

black teachers in the school already far exceeded the per-

centage of blacks in the local labor force, the School Board

decreed that the percentage of blacks should be increased to

25

15.9% in every school building and that to reach this quota, not

only should blacks be preferred for new vacancies, but more

seuior white teachers should be laid off out of turn in times of

cutback. In light of the fact that it was incorporated into every

collective bargaining agreement from 1972 on, one can only

assume that this “remedy” was intended to become a per-

manent feature of the Jackson school system. '

A permanent quota cannot be justified as “remedial.” As

this Court explained in Pasadena City Bd. of Education v.

Spangler, 427 U.S. 424, 436 (1976), when it invalidated a

similar attempt to maintain a permanent quota:

“(T]he District Court was not entitled to require the

[School District] to rearrange its attendance zones each

year so as to ensure that the racial mix desired by the court

was maintained in perpetuity.”

See also id. at 444 n. 1 (Marshall, J. dissenting, disapproving

permanent racial quota). So too in this case, the Jackson

School Board was not entitled to impose a permanent quota

disadvantaging white teachers in perpetuity under the guise of

remedying a prior “disparity.”

The “remedy” in this case was also not reasonably tailored

to cure the effects of past discrimination. In Memphis Fire

Department v. Stotts, 104 S.Ct. 2576 (1984), this Court struck

down a racially segregated seniority system imposed by court

order on the ground that under Title VII a court may award

super-seniority only to the identifiable victims of discrimination.

Stotts left open the question whether the City of Memphis, as a

public employer, could have voluntarily instituted a racially

segregated seniority system for the purpose of maintaining

gains achieved through an affirmative action pian.

Although Stofts is thus not controlling here, it does suggest

what effects of past discrimination are remediable. While a

court may accord a public employer a certain amount of

leeway, under the Svotts rationale there must at least be

26

evidence that the employer in question made a reasonable

attempt to identify the victims of discrimination and to give

only those victims special seniority rights. In this case, there

was no attempt whatsoever to connect the remedy to any

arguable discrimination in hiring. Furthermore, as noted

above, it is highly unlikely that the racial preference that was

invoked to lay off the plaintiffs out of turn in 1981 actually

assisted any person who had been a victim of discrimination

prior to 1969.

Because it has no discernible connection to any wrong

committed by the School Board, the remedy in this case must

be overturned. As Judge Higginbotham noted in his concurring

opinion in Williams v. City of New Orleans. 729 F.2d 1554, 1569

(5th Cir. 1984) (en banc), the goal of equal opportunity is not

served by remedies that simply create new wrongs:

“When we lose sight of the need to tie remedy to wrong,

we confound the very principles we are striving to vindi-

cate, because we impose burdens and confer benefits along

racial lines with no assurance that we are thereby undoing

the injustices of the past; rather ... we perpetrate new

injustices in derogation of the right of those benefited and

burdened alike to be treated as individuals.”

27

CONCLUSION

Whatever the limits of legitimate affirmative action, it is

plain that the Jackson quota plan and discriminatory layoff

policy exceed the constitutional and legal boundaries set by this

Court. Indeed, the scheme challenged here is not affirmative

action at all. Rather, it is a naked racial preference designed to

create and maintain a faculty whose racial make-up exactly

reflects the racial composition of the student body. This Court

has ruled it impermissible to use race as the determining factor

in hiring, placement, or retention decisions. See University of

California Regents v. Bakke, 438 U.S. 265 (1978); Memphis

Fire Department v. Stotts, 104 S.Ct. 2576 (1984). This is true

whether the intent is to discriminate against minorities or to

discriminate in their favor.

To strike down this scheme would still leave ample room

for appropriate remedial efforts. But to uphold it would open a

Pandora’s Box of racial preferences, under which individual

rights would disappear in favor of theoretical “fairness” to

racial or ethnic groups.

For the foregoing reasons, the judgment of the court below

should be reversed.

Respectfully submitted,

ROBERT A. HELMAN

(Counsel of Record )

MICHELE ODORIZZI

DANIEL M. Harris

231 South LaSalle Street

Chicago, Illinois 60604

(312) 782-0600 °

Attorneys for Amicus Curiae

Of Counsel:

JUSTIN J. FINGER

MEYER EISENBERG

JEFFREY P. SINENSKY

Jm._ L. KAHN

ANTI-DEFAMATION LEAGUE OF

B’NAI B’RITH

823 United Nations Plaza

New York, New York 10017

MAYER, BROWN & PLATT

231 South LaSalle Street

Chicago, Illinois 60604