Appendix — South Bend Community School Corp. v. Britton
Supreme Court brief1987
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AU
Iu The
JOSEPH F. SPANICL, JR.
. CLERK
Supreme Court of the Unite !
@ctober Germ, 1987
SOUTH BEND
COMMUNITY SCHOOL CORPORATION,
Petitioner,
v.
ELMER BRITTON, et al.,
Respondents.
SOUTH BEND
COMMUNITY SCHOOL CORPORATION, et al.,
Petitioners,
v.
JULIE ANDREWS, et al.,
Respondents.
APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
STANLEY C. FICKLE
Counsel of Record
FRANKLIN A. MorsE, II
Grecory L. KELLY
Lynn C. TYLER
BarNEs & THORNBURG
600 1st Source Bank Center
100 North Michigan Street
South Bend, Indiana 46601
Telephone: (219) 233-1171
August 14, 1987 Counsel for Petitioners
Pandick Technologies, Inc., Chicago @ (312) 236-0200
ow
i
TABLE OF CONTENTS
Constitutional and Statutory Provisions........... la
Judgment of Seventh Circuit Court of Appeals en banc
bi Fh ei ids we wean 2a
Opinion of Seventh Circuit Court of Appeals en banc
Ee tana n da hee ek te ee 4a
Order of Seventh Circuit Court of Appeals dated
I ED 5s 5s 4. 5-6 9d 4 oS DS ER ee 43a
Order of Seventh Circuit Court of Appeals dated
RI a ge ee ote 45a
Opinion of Panel of Seventh Circuit Court of Appeals
Ge I, is Ba 5k ko ho ene dca eames 46a
District Court Judgment dated September 26, 1984 . . 98a
Opinion of District Court dated September 25, 1984. . 99a
Resolution 1020 of the South Bend Community School
CIS -w Sie S SS e ore s Sao RES e O 118a
Consent Decree in United States v. South Bend
Community School Corporation dated February 8,
Article XXIII of the 1980-83 Collective Bargaining
Agreement between the NEA-South Bend and the
South Bend Community School Corporation....... 126a
la
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
U.S. Const. amend. XIV, sec. 1:
All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside. No
State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor deny
to any person within its jurisdiction the equal protection
of the laws.
42 U.S.C. § 2000e-2(a):
(a) It shall be an unlawful employment practice for an
employer —
(1)
(2)
to fail or refuse to hire or to discharge any in-
dividual, or otherwise to discriminate against
any individual with respect to his compensation,
terms, conditions, or privileges of employment,
because of such individual’s race, color, religion,
sex, or national origin; or
to limit, segregate, or classify its employees or
applicants for employment in any way which
would deprive or tend to deprive any individual of
employment opportunities or otherwise adversely
affect his status as an employee, because of such
individual’s race, color, religion, sex, or national
origin.
2a
JUDGMENT — ORAL ARGUMENT
No. 84-2841
——
United States Court of Appeals
For the Sebenth Circuit
Chicago, Illinois 60604
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
May 18, 1987.
Before
WILLIAM J. Bauer, Chief Judge
WALTER J. CUMMINGS, Circuit Judge
HARLINGTON Woop, JR., Circuit Judge
RICHARD D. Cupany, Circuit Judge
RICHARD A. Posner, Circuit Judge
JOHN L. Correy, Circuit Judge
JOEL M. FLauM, Circuit Judge
FRANK H. EASTERBROOK, Circuit Judge
THOMAS E. FAIRCHILD, Senior Circuit Judge
ELMER BRITTON, et al.,
Plaintiffs-Appellants, for the Northern Dis-
—_
Appeal from the United
States District Court
trict of Indiana, South
vs. Bend Division.
SOUTH BEND COMMUNITY 4 <i. nae
SCHOOL CORPORATION, et ” ihe aan
al.,
Defendants-Appelices_) Allen Sharp, Judge.
This cause was heard on the record from the United
States District Court for the Northern District of Indiana.
South Bend Division, and was argued by counsel.
On consideration whereof, IT IS ORDERED AND
ADJUDGED by this Court that the judgment of the said
a
3a
District Court in this cause appealed from be, and the
same is hereby, REVERSED, with costs, and the case is
REMANDED, in accordance with the opinion of this Court
filed this date.
4a
iu the
United States Court of Appeals
Bor the Seventh Cirrntt
No. 84-2841
ELMER BRITTON, et al.,
Plaintiffs-Appellants,
Vv.
SouTH BEND COMMUNITY SCHOOL CORPORATION,
et al.,
Defendants-A ppellees.
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
Nos. 82 C 283, 82 C 485—Allen Sharp, Chief Judge.
ARGUED May 28, 1985—REARGUED EN Banc OCTOBER 23, 1986
DECIDED May 18, 1987
Before BAUER, Chief Judge, CUMMINGS, Woop Jr.,
Cupany, POSNER, COFFEY, FLAUM, and EASTERBROOK,
Circuit Judges, and FAIRCHILD, Senior Circuit Judge.
PosnER, Circuit Judge. In 1982 the public school sys-
tem 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. In lay-
ing off only whites, the school board was acting pursuant
to a provision in its collective bargaining agreement with
the teachers’ union to the effect that no blacks would be
laid off until every white was laid off. The laid-off teachers
sued the school system under section 1 of the Civil Rights -
5a
2 No. 84-2841
Act of 1871, 42 U.S.C. § 1983, charging that the racially
preferential layoff provision violated the equal protection
clause of the Fourteenth Amendment, and seeking rein-
statement and damages. The district court, after a bench
trial, gave judgment for the board. 593 F. Supp. 1223
(N.D. Ind. 1984). The court thought the board’s adoption
of the provision a reasonable means toward the board’s
goal, which the court also thought reasonable, of raising
the percentage of black teachers in the South Bend school
system to that of black students. The board had resolved
“to increase the percentage of minorities [meaning blacks]
in its teaching force until that percentage equals the per-
centage of minorities in its student body. The Board
specifically resolved to increase the percentage of minority
pupils [sic—the judge meant ‘teachers’] because it deemed
it essential that the student population, both black and
white, have a sufficient number of minority teachers to
act as role models.” Jd. at 1225. “In cases dealing with
school corporations, it is proper to compare the percent-
‘age of minority faculty with the percentage of minorities
in the student body rather than with the percentage of
minorities in the relevant labor poo! . . . because of the
vital role teachers play as role-models for their students.
This is particularly true in the rise [sic—the judge ap-
parently meant ‘case’] of minority teachers since ‘societal
discrimination has often deprived minority children of
other role models.’”’ Jd. at 1230 n. 3.
The board appealed. A divided panel of this court af-
firmed. 775 F.2d 794 (7th Cir. 1985). The full court then
granted rehearing en banc. Before the case could be re-
argued, the Supreme Court decided a similar case in favor
of another group of white public school teachers. Wygant
v. Jackson Board of Education, 106 S. Ct. 1842 (1986).
Like the panel in the present case, the Sixth Circuit had
upheld the dismissal of the complaint. The Supreme Court
reversed. It rejected the “role models” rationale on which
the Sixth Circuit, like the district court in the present
case, had based its decision. The Supreme Court did not
remand for further proceedings to determine whether the
6a
No. 84-2841 3
plaintiffs’ constitutional rights had been violated; it held
they had been. When the present case was reargued to
us, the question no longer was reversal or affirmance; it
was whether to reverse outright, holding that the plain-
tiffs had proved a violation of their constitutional rights
and remanding only for the determination of the appropri-
ate remedy; or to remand for further proceedings in which
the board would have an opportunity to establish a ra-
tionale for racially discriminatory layoffs that would be
consistent with the Wygant decision.
The constitutional status of discrimination by public
bodies in favor of blacks and other members of minority
groups is contentious and unsettled; but with the Supreme
Court having spoken so recently to a set of facts so close
to those of the present case, the task for us is the inter-
pretation of the Court’s decision rather than the forging
of new constitutional law. Wygant came out of the public
school system of Jackson, Michigan. In 1968, the year be-
fore the Jackson board of education adopted a racially
preferential hiring plan, 4 percent of the city’s public
school teachers were black, compared to 15 percent of the
students. Wygant v. Jackson Board of Education, 746
F.2d 1152, 1156 (6th Cir. 1984), rev’d, 106 S. Ct. 1842
(1986). Because Michigan’s civil rights commission believed
that the disparity was due to discrimination against black
teachers (see 106 S. Ct. at 1854), the board of education
agreed to give preference in hiring to blacks until the
percentage of black teachers was equal to that of black
students. By 1971, 9 percent of the teachers were black.
746 F.2d at 1156. That year it became necessary to lay
off some teachers. The board did this in the usual way—
reverse order of seniority. A disproportionate number of
those laid off were black, because so many blacks had
been hired recently and therefore had little seniority. The
racial situation in the Jackson public schools soon became
even more tense—became, indeed, violent. See 106 S. Ct.
at 1859. Expecting that additional layoffs would be neces-
sary in the near future, the board decided it must take
measures to make sure that such layoffs would not reduce
a
7a
4 No. 84-2841
the number of black teachers disproportionately. The board
felt it needed to have as many black teachers as possible
in order to quiet the schools and give black students role
models. It also feared that the hiring of blacks would be
impeded by strict adherence to the principle of laying off
teachers in reverse order of seniority, because new teachers
would know they would be the first to be laid off if there
was a reduction in force.
In 1972 the board negotiated with the teachers’ union an
agreement (which became Article XII of the collective bar-
gaining contract with the union) to deviate from the prin-
ciple of laying off teachers in reverse order of seniority,
but only to the extent necessary to preserve the existing
percentage of blacks (and other members of minority groups,
but we can ignore that feature of the case) in the teaching
force. So if 10 percent of the teachers were black, no more
than 10 percent of the teachers laid off could be black.
The collective bargaining contract in Wygant was rati-
fied by an overwhelming majority of the Jackson public
school teachers, most of whom were white. Nevertheless,
in a suit by white teachers laid off because of Article XII,
the Supreme Court held that the provision was a denial
of equal protection. Although there was no majority opin-
ion in Wygant, a “lowest common denominator” majori-
ty position can be pieced together. ““When a fragmented
Court decides a case and no single rationale explaining
the result enjoys the assent’ of five Justices, ‘the holding
of the Court may be viewed as that position taken by
those Members who concurred in the judgments on the
narrowest grounds.’ ”’ Marks v. United States, 430 U.S.
188, 193 (1977).
Justice Powell, writing in Wygant for three Justices,
opined that a public body may not use race as a criterion
for layoffs unless necessary to protect a proven victim of
discrimination, such as a black who if he had not been
discriminated against would have had as much seniority
as a white. See 106 S. Ct. at 1849-52. Justice White took
the same position, only more bluntly. See id. at 1857-58.
8a
No. 84-2841 5
Obviously if either of those opinions had commanded a
majority, we would have to reverse outright. But since
Justice O’Connor, the fifth and last member of the ma-
jority, concurred in the judgment of reversal on the nar-
rowest ground, her opinion is critical to our determining
the proper disposition of the present case.
She reserved the question whether a racially preferential
layoff plan might ever be a constitutionally permissible
measure “to correct apparent prior employment discrimi-
nation against minorities while avoiding further litigation,”
id. at 1854 (see also id. at 1857), and she noted in this
connection that the Jackson school board had “reasoned
that without the layoff provision, the remedial gains made
under the ongoing hiring goals contained in the collective
bargaining ment could be eviscerated by layoffs,”
id. at 1854. The fact that there had been no authoritative
determination of hiring discrimination and that the layoff
provision would not merely benefit victims of such discrim-
ination did not in her view automatically condemn the
plan. Nevertheless she agreed that the plan was uncon-
stitutional and that outright reversal was the proper dis-
position of the appeal, because the plaintiffs had
met their burden of establishing that this layoff provi-
sion is not “narrowly taiiored” to achieve its asserted
remedial purpose by demonstrating that the provision
is keyed to a hiring goal that itself has no relation
to the remedying of employment discrimination.
Id. at 1857. That is,
the hiring goal that the layoff provision was designed
to safeguard was tied to the percentage of minority
students in the school district, not to the percentage
of qualified minority teachers within the relevant
labor pool. The disparity between the percentage of
minorities on the teaching staff and the percentage
of minorities in the student body is not probative of
employment discrimination. . . . Because the layoff
provision here acts to maintain levels of minority hir-
ing that have no relation to remedying employment
9a
6 No. 84-2841
discrimination, it cannot be adjudged “narrowly tai-
lored”’ to effectuate its asserted remedial purpose.
Id. (citation omitted). The hiring goal in the present case
was likewise “tied to the percentage of minority students
in the school district.”
Justice Marshall, the author of the principal dissenting
opinion in Wygant (which Justices Brennan and Blackmun
joined), made two points that are particularly relevant to
the present case. First, he noted that an alternative to a
racially proportional layoff provision—such as Article XII,
which merely preserved the percentage of black teachers
achieved before the layoffs—“‘would have been a freeze
on layoffs of minority teachers. This measure . . . would
have been substantially more burdensome than Article XII,
not only by necessitating the layoff of a greater number
of white teachers, but also by erecting an absolute distinc-
tion between the races, one to be benefited and one to
be burdened, in a way that Article XII avoids.” Jd. at
.1865. That hypothetical “substantially more burdensome’”’
measure is the one the South Bend school board adopted.
Second, Justice Marshall took exception to the majority’s
refusal! to remand the case for findings on possible justi-
fications for Article XII other than those the majority had
rejected. The district court had granted summary judg-
ment for the Jackson board of education because the court
found, on the basis of evidence that a much higher per-
centage of students than of faculty was black, that favor-
ing blacks in layoffs was necessary both to give black
students adequate “role models” and to rectify “societal
discrimination” against black teachers (‘‘societal discrimi-
nation’”’ meaning a racial imbalance not caused by the
defendants’ own discriminatory acts). The defendants in
Wygant, perhaps foreseeing rejection of these unds,
submitted evidence relevant to other possible justifications
to the Supreme Court. The submission had no standing
as evidence, but it provided a reason for remanding the
case to give the lower courts a chance to consider it. The
rejection of Justice Marshall’s suggestion that the case
10a
No. 84-2841 7
be remanded has implications for the present case, which
the defendants have asked us to remand.
South Bend, Indiana, like Jackson, Michigan, had a lower
percentage of black teachers in its public schools than of
black students. In 1978, on the eve of adopting a racially
preferential hiring plan, the percentages were 10 and 22.
Although the 10 pene figure is more than twice the
percentage of black teachers in the Jackson public schools
at the corresponding period in the evolution of its program
of racial preferences, the South Bend school board was
not satisfied, and resolved to raise the percentage of black
teachers until it equaled that of black students. The layoff
plan ensured that if layoffs were necessary they would
not impede achievement of the board’s goal of racial parity
between teachers and students. Indeed, since no blacks
could be laid off if any whites had not yet been laid off,
the layoff plan (unlike the one in Wygant) was calculated
to increase rather than just maintain the percentage of
black teachers in the event that any layoffs became neces-
sary. By 1981, 13 percent of the teachers (and 25 per-
cent of the students) were black. As a result of the layoff
provision, the percentage of black teachers rose—to 14
percent—when it became necessary to lay off teachers,
since all of those laid off were white.
No one doubts that the signatories of the plurality opin-
ion in Wygant, plus Justice White (a total of four Justices),
would invalidate South Bend’s racially preferential layoff
plan. The plan goes further than the one struck down in
Wygant; unlike Wygant there is no background of racial
violence; as in Wygant there is no evidence that any of
the black teachers who have benefited from the plan are
victims of racial discrimination that deprived them of
seniority they would otherwise have had. Conceivably
Justice O’Connor might approve a racially preferential lay-
off plan of some sort (a critical qualification, as we shall
see) if she were convinced that the purpose of the plan
was to correct previous hiring discrimination by the school
board. There was some evidence in the record before the
Supreme Court in Wygani that that had been the Jackson
lla
8 No. 84-2841
school board’s purpose; there is very little evidence that
it was the South Bend board’s purpose. The goal advanced
by the board in the district court—the goal to which all
of the board’s evidence was oriented—was to correct a
discrepancy between the percentage of black teachers and
the percentage of black students. Such a discrepancy is,
in Justice O’Connor’s view, “not probative of employment
discrimination,” 106 S. Ct. at 1857 (emphasis added), and
therefore cannot, in her view, justify racially discrimina-
tory layoffs. For her the proper comparison in deciding
whether black teachers have been discriminated against
is not between the percentage of black teachers and the
percentage of black students but between the percentage
of qualified black teaching applicants who are hired and
the percentage of qualified white applicants who are hired;
if 10 percent of the qualified blacks are hired but 20 per-
cent of the qualified whites are hired, this would be evi-
dence of racial discrimination in hiring. See id.; J. Edinger
& Son, Inc. v. City of Louisville, 802 F.2d 213, 216 (6th
Cir. 1986). Nowhere in the transcript of the trial or in
the trial exhibits do we find evidence that the purpose
of the South Bend school board in seeking to equate the
fraction of black teachers to the fraction of black students
was to remedy employment discrimination. The district court
did not overlook this theory of the defense; the theory simply
was not presented to the court. Cf. 593 F. Supp. at 1231.
The board put all its forensic eggs in the baskets labeled
“role models” and “racial imbalance.” The board’s counsel
said at trial, “statistical disparity, that’s all that’s neces-
sary ....So our evidence, Your Honor, in terms of justify-
ing this f eataeony is going to be that of showing the sta-
tistical f strc [sic] between the proportion of Biacks
in the teaching force of the corporation, and the propor-
tion of [black] students in the student body.”
The record contains some evidence bearing on discrimi-
nation against blacks, but because discrimination was not
the focus of the district court proceedings, the evidence
is sparse, and it is also ambivalent. Far from discriminat-
ing against black teachers, the South Bend schoo! board
12a
No. 84-2841 9
had for years been hiring a much higher fraction of black
than of white teaching applicants. As early as 1972—eight
years before the collective bargaining provision challenged
in this case—22 percent of all the new hires were black.
In 1974 this figure was 30 percent; in 1980, 55 percent.
Granted, this is not the complete picture. In 1975, five years
before the layoff provision at issue in this case was adopted,
HEW wrote a letter to the school board alleging racial
discrimination in the South Bend public school system.
However, the only concern expressed in the letter with re-
spect to discrimination in hiring involved the discrepancy
between the fraction of black students and the fraction
of black teachers—the theory of discrimination discredited
by Wygani. And the school board’s reply to the letter de-
tailed the board’s vigorous efforts to recruit black teachers,
efforts that included not only soliciting teaching applica-
tions from black colleges but also hiring a much higher
fraction of black than of white applicants. A second let-
ter that HEW wrote in 1975 is silent on discrimination
in hiring, and a third is a form letter apparently written
to all public school superintendents in the country. The
record also contains an unsworn, unsubstantiated, unelabo-
rated charge by a member of the audience at a public
meeting unrelated to this case, that the board had un-
justly refused to hire five (unnamed) black teaching ap-
plicants. Even if this accusation were accepted as true,
it would imply—in the context of uncontradicted evidence
that blacks were favored in hiring, consistently with the
board’s goal of raising the percentage of black teachers
to the percentage of black students—a mistaken person-
nel decision rather than an act of deliberate discrimina-
tion. Finally, Brown v. Weinberger, 417 F. Supp. 1215,
1221 (D.C. Cir. 1976), noted that HEW had years ago ac-
cused the South Bend board of some unspecified form of
racial discrimination, but the opinion does not suggest that
the accusation is true, or concerned discrimination in hir-
ing. And HEW never did bring suit.
South Bend may have engaged in a different form of
discrimination—assigning black teachers to teach black
13a
10 No. 84-2841
students—for which the proper remedy would be to en-
join this practice, as a consent order did in 1980. The
order said nothing about giving blacks superseniority, for
that would not be a logical remedy for Paevtainstion in
assigning teachers. That Indiana had a segregated school
system almost 40 years ago is another fact that pertains
to discrimination in assigning, not in hiring, teachers.
Steering black teachers to black schools could actually lead
to hiring more black teachers than if there were no steer-
ing, by earmarking all teaching slots in black schools for
blacks. Granted, in 1964 only 4 percent of the teachers
in the South Bend public school system were black, yet
there is no evidence that this was due to discrimination
in hiring or assigning; the percentage of blacks in South
Bend was also lower then.
Given the long history of discrimination against black
people, in Indiana as elsewhere, we cannot exclude the
possibility that the South Bend school board, perhaps until
fairly recently, discriminated against black teachers in hir-
ing and that the layoff provision challenged in this case
was adopted, in part at least, to correct that discrimina-
tion by protecting newly hired black teachers against be-
ing laid off in the event of an economic downturn. One
would think, however, that if this were so, the board
would have argued the point in the district court; for
while Wygant, decided later, withdrew certain justifica-
tions for such provisions, it did not create a new one (cor-
recting previous discrimination). The board had every in-
centive to assert all its possible defenses in the district
court; any not asserted would ordinarily be deemed waived.
See, e.g., National Fidelity Life Ins. Co. v. Karaganis,
811 F.2d 357, 360-61 (7th Cir. 1987); Benzies v. Illinois
Dept. of Mental Health & Developmental Disabilities, 810
F.2d 146, 149 (7th Cir. 1987). The Supreme Court did not
remand Wygant, as Justice Marshall had suggested it do,
to permit the Jackson board of education to prove that
its layoff provision had been designed to rectify previous
discrimination in hiring—of which the board had in fact
been accused.
14a
No. 84-2841 11
Despite all this it might be arguable as an original mat-
ter that the evidence of remedial purpose, although weak,
is stronger than in Wygant pol that the South Bend
school board should have a chance to shore up that evi-
dence on remand—were it not for Justice O’Connor’s in-
sistence that even a remedial layoff plan be “narrowly
tailored,” a requirement that the plan in this case flunks
even more decisively than the plan in Wygant. Recall that
Justice O’Connor was willing to accept the possibility that
the layoff plan had been adopted in order to correct the
Jackson school board’s “apparent prior discrimination.”
But that wasn’t good enough; the plan was invalid be-
cause tied to an improper hiring goal, that of equating
the fraction of black teachers to the fraction of black stu-
dents. The plan in the present case is tied to the same
goal, and really no more need be said to condemn the
plan. But there is more: enough more, indeed, that even
Justice Marshall and the two Justices who joined him
might think South Bend had gone too far, by erecting an
absolute racial preference for blacks. That goes further
than necessary to preserve blacks’ gains in times of eco-
nomic downturn, and further than the proportional prefer-
ence struck down in Wygant.
Between 1979 and 1981 the South Bend school board
hired 62 blacks, and it was the 48 most recently hired of
these blacks, 41 of whom had been hired since 1980, who
would have been laid off under a racially neutral layoff
plan. Thus, no matter how recently hired a black was,
he was placed on the seniority ladder above every white
teacher. In addition to giving every black an absolute
preference over every white, the plan ties the percentage
of black teachers to such irrelevant and unpredictable cir-
cumstances as the economic health and school-age popula-
tion of South Bend; the plan uses economic downturns and
shrinkages in the student population as fulcrums for arbi-
trarily increasing the percentage of black teachers in the
public school system. A plan with such effects cannot be
held to be ‘‘narrowly tailored’’ to the goal of remedying
previous discrimination, even if that was the board’s goal,
15a
12 No. 84-2841
of which there is, as we have said, almost no evidence
in the record, and even if such a goal could save a layoff
plan tied to a hiring goal of equating the percentage of
black teachers to the percentage of black students, which
Justice O’Connor (and a fortiori the other four Justices
in the majority in Wygant) believed it could not.
The school board has argued (though not until reargument
en bane was granted) that it didn’t really lay off these
whites, because it offered them substitute positions, though
at reduced compensation. But the board’s counsel acknowl-
edged at argument that his client would have violated. the
equal protection clause if it had tried to solve its finan-
cial problems by cutting just white teachers’ wages or
fringe benefits (estimated to be worth between $2,000 and
$4,000 a year), without laying off anybody. Yet that is
what he says the board actually did, by offering to hire
the laid-off whites as substitute teachers at a reduced
level of compensation.
. The judgment of the district court is reversed, and the
case is remanded for further proceedings consistent with
this opinion.
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 narrow-
ly tailored because it created an absolute preference 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 stand-
ards that govern our consideration of the constitutionality
16a
No. 84-2841 13
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 Protec-
tion Clause, if the court first determines that the em-
ployer adopted the plan to achieve a “compelling pur-
pose.” Remedying its own past discrimination is indis-
putably one such purpose.! 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] war-
ranted,” Wygant, 106 S.Ct. at 1856 (O’Connor, J., con-
curring 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 neces-
sarily 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
* Remedying past discrimination is not necessarily the only gov-
= urpose sufficiently compelling to justify the remedial use
ye faculty diversity may be a second. Wygant, 106
S. Ct. at 1853 (O’Connor, J., concurring in part). There may be
“other pediatric interests . . [that are] sufficiently ‘important’
or ‘compelling’ to sustain the use of affirmative action policies.” Jd.
Sse eulogy
17a
14 No. 84-2841
“steering” of teachers. Although these facts do not con-
clusively 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, al-
though 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 Tran-
script 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 dis-
crimination 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 (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 (1976) (A collective bar-
gaining agreement may ‘‘enhanc{e] the seniority status of
certain employees . . . to the end of ameliorating the ef-
fects 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, 107 S.Ct. 1053 (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.
Il.
On remand, the district court must make an individual-
ized assessment of the compensatory and equitable relief
to which each plaintiff is entitled. The court should grant
18a
No. 84-2841 15
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 in-
jury. Moreover, any award of compensatory relief should
reflect the mitigation of damages resulting from the sub-
stitute teaching and recall provisions.
In determining the equitable relief to which the plain-
tiffs are entitled, I believe that the district court should
be guided by the existing case law concerning “‘compen-
satory 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 (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 (1984).
Ill.
The outcome in this case should not be construed as
a retreat from our belief that the eradication of racial bar-
riers 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. Charlotie-Meckienburg
Board of Education, 402 U.S. 1 (1971). Although we have
rejected the plan at issue, our result does not signal any
hesitation to uphold reasonable affirmative action pro-
grams, even if “innocent persons [are] called upon to bear
some of the burden of the remedy,” Wygant v. Jackson
Board of Education, 106 S.Ct. 1842, 1850 (1986) (plurality).
Our efforts as a society to remedy the appalling legacy
of discrimination are far from finished.
19a
i6 No. 84-2841
CuMMINGS, Circuit Judge, with whom Judges Woop, JR.,
CuDAHY, and FAIRCHILD join, dissenting. While fully join-
ing 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 govern-
ment bodies, including courts, may constitutionally employ
racial classifications essential to remedy unlawful treat-
ment of racial or ethnic groups subject to discrimination.”
United States v. Paradise, 107 S. Ct. 1053, 1064 (plurality
opinion); Local 28 of the Sheet Metal Workers’ Int'l Ass’n
v. EEOC, 106 S. Ct. 3019, 3052 (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 racia! discrimination,
even those effects not attributable to the entity’s own
practices. Johnson v. Transportation Agency, 107 S. Ct.
1442, 1456-1457; United Steelworkers v. Webber, 443 U.S.
193, 208. This concern rises to the level of a constitutional
duty to take affirmative action when the lingering dis-
criminatory effects are due to a public employer’s own
past discrimination. Wygant v. Jackson Board of Educa-
tion, 106 S. Ct. 1842, 1856 (O’Cennor, J., concurring);
Keyes v. School District No. 1, 413 U.S. 189, 200; Swann
v. Charlotte-Mecklenburg Board of Education, 402 U.S.
1, 15; Green v. County School Board, 391 U.S. 430, 437-
438. Today’s treatment of the layoff plan of the South Bend
Community School Corporation (the “School Corporation”’)
will unjustifiably discourage public employers from volun-
tarily 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 stand-
ard 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
20a
No. 84-2841 17
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 Corpora-
tion’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., concurr'ng). 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 sys-
tem—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 predomi-
nantly black schools, which received less maintenance and
substantially less financial support, and that black teachers
had little opportunity for promotion. Jd. In 1975, the Of-
fice for Civil Rights of the Department of Health, Educa-
tion 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, 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 dis-
mantle its dual school system. Jd. at 92. In May 1978,
a
2la
18 No. 84-2841
the State of Indiana Office of Schoolhouse Planning for-
bade construction of new facilities until the School Cor-
poration addressed the problem of racially identifiable
schools. Jd. 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 gov-
ernment 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 govern-
ment its total faculty, by race, until the end of 1983. Jd.
3 at ¢ 8, 4 at ¥ 10(a). In May 1980, the School Corpora-
tion 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. Here the School Cor-
poration waited for more than 20 years after Brown v.
Board of Education, 347 U.S. 483, 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 in-
quiry into the constitutionality of the layoff provision does
not end with the simple observation that the School Cor-
poration’s provision barred the laying off of any black
teachers while Wygant struck down a plan merely requir-
ing 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 dis-
senting opinion herein at pp. 27-28 (Cudahy, J.), here a trier
of fact could find that the School Corporation reasonably
believed that such immediate action was necessary to
22a
No. 84-2841 19
maintain the present number of black teachers. The pro-
vision enabled the School Corporation to preserve its af-
firmative action hiring gains and to counter the linger-
ing 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 con-
stitutional obligations—to teachers and students—to “elimi-
nate[ ] root and branch” any vestiges of past discrimina-
tion. Paradise, 107 S. Ct. at 1066 n.20, 1067-1074; Green,
391 U.S. at 437-489. The temporary layoff provision was
not only a remedy for past discrimination against black
teachers, but also was part and parcel of the School Cor-
poration’s constitutionally mandated efforts to replace its
dual school system with an integrated learning environ-
ment.
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. 11. The hir-
ing policy, Resolution 1020, which mentioned the percent-
age 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, 106 S. Ct. 1842.
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. Aliso, 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
23a
20 No. 84-2841
hiring goal. Jd. 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 prob-
able 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 per-
centage 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 con-
currence 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, by in effect espous-
ing 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 program will then depend on how
one chooses to define the benefits bestowed by that pro-
gram. Any advantage bestowed on a minority by an af-
firmative action program can be characterized as an ‘‘ab-
solute 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, ap-
parently the plurality and concurrence would invalidate
the remedy if they chose the referent as the 8 promo-
tions to corporal rank set aside for blacks but would up-
hold it if they chose the referent as promotion to the cor-
poral rank because blacks had no absolute preference for
the remaining 8 openings. See 107 S. Ct. at 1071-1072 and
n.30, 1073 (plurality opinion). In Sheet Metal Workers, the
Supreme Court upheld the court-ordered establishment of
24a
No. 84-2841 21
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 minor-
ities to be union members, as opposed to fund benefici-
aries. 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 posi-
tions 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 pro-
vided substitute positions to many of those who were
affected.
It is true that Justice Marshall’s Wygant dissent em-
ployed the phrase “absolute distinction between the races”
to argue that the Wygant layoff provision was less bur-
densome 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 “‘ab-
solute 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 ‘“‘ab-
solute 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 in-
nocent non-minorities, and the adequacy of less onerous
alternatives. Here remand is required because, unlike
Wygant, it cannot be decided if this provision is narrow-
ly tailored without first resolving factual questions which
will determine a proper appraisal of all three of these fac-
tors.
In the present case the temporary no-minority layoff
provision, as drastic as it is, may be necessary to elimi-
25a
22 No. 84-2841
nate the effects of the School Corporation’s past discrimi-
nation and continued default of its constitutional obliga-
tions. 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 Corpora-
tion’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 immedi-
ate 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 com-
ing forward with ‘a plan that promises realistically to
work, and promises realistically to work now.” Green, 391
U.S. at 439 (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 provide that integrated learning environ-
ment.
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 1068-1070, 1071-1072 (plurality opin-
ion). The Court concluded that “ijt would have been im-
proper for the District Judge to ignore the effects of the
Department’s delay and its continued default of its obliga-
tion to develop a promotion procedure, and to require only
that, commencing in 1984, the Department promote one
black for every three whites promoted.” Jd. at 1072. In-
26a
No. 84-2841 23
stead, the 50% promotion quota ‘“‘provided an accelerated
approach to achieving [the 25%] goal to compensate for
past delay” and was consistent with its school desegrega-
tion cases which have “recognized the importance of ex-
pediting elimination of the vestiges of longstanding
discrimination.” Jd. at 1072 n.30 and n.31. In the present
case a trier of fact could justifiably conclude that plain-
tiffs failed to prove that the layoff provision was not nar-
rowly tailored to ending the School Corporation’s long-
standing default of its constitutional affirmative duty to
dismantle all vestiges of discrimination. No less burden-
some 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 im-
posed; therefore, remand is necessary.
The efforts of the School Corporation to meet its con-
stitutional 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 employ-
ees, 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 provi-
sion cannot be masked by reliance on talismanic factors
shortcutting important factual determinations and yielding
clear yet erroneous results. Therefore I respectfully dis-
sent.
CuDAHY, Circuit Judge, with whom Judges CUMMINGS,
Woop, JR., and FAIRCHILD join, dissenting:
We are dealing here with a race-conscious layoff plan,
voluntarily adopted by a schoo! board under heavy govern-
ment fire for past discrimination and ratified by secret
_
—— Ci
27a
24 No. 84-2841
ballot by the teachers affected.1 What is most striking
about this case is the kaleidoscope of legal scenery against
which the facts have been projected at various times in
the process. The adoption of the plan and its review by
the district court and by the panel of this court all oc-
curred at times when the Supreme Court was providing
little guidance about the legal bounds of such a plan. It
is therefore not surprising that in the district court the
judge and the school board were looking over their shoul-
ders at the “role model” theories espoused by the district
court in Wygant v. Jackson Bd. of Educ., 546 F. Supp.
1195 (E.D. Mich. 1982). Britton, 593 F. Supp. 1223 (N.D.
Ind. 1984). On appeal, the panel majority, for which I wrote,
was most concerned with Janowiak v. Corporate City of
South Bend, 750 F.2d 557 (7th Cir. 1984), vacated and
remanded, 55 U.S.L.W. 3675 (U.S. Apr. 6, 1987), an af-
firmative action case in which the same district court that
decided Britton had recently been reversed. The panel
majority certainly did not rely on a role model theory and,
in fact, expressly renounced reliance ‘‘on any particular
theory of role modeling.” Britton, 775 F.2d 794, 800 n.8
(7th Cir. 1985). Subsequently, the Supreme Court reversed
Wygant in a series of opinions, none of which commanded
a majority, that present a confusing array of essentially
new law. 106 S. Ct. 1842 (1986). Among other things, the
plurality opinion soundly rejected the role model rationale.?
1 The panel opinion affirming the district court in this case is
found at 775 F.2d 794 (7th Cir. 1985). It contains an extensive
statement of the background of this case, including the facts of
past discrimination, and I rely on it here particularly in that re-
spect.
2 A majority of the Justices in Wygant also rejected the require-
ment in Janownak that affirmative action programs “be based upon
findings of past discrimination by a competent body,” 750 F.2d
at 561. See infra pp. 26-27. The Court has recently vacated the
judgment in Janowiak and remanded the case to this court “for
further consideration in light of Johnson v. Tra ion Agency,
[107 S. Ct. 1442 (1987)] and Wygant v. Jackson Bd. of Educ., (106
S. Ct. 1842 (1986)].”
28a
No. 84-2841 25
Soon thereafter, the Supreme Court decided four more cases
in which it upheld the validity of race-conscious remedial
plans and further elaborated on the standards for accept-
ance. Johnson v. Transportation Agency, 107 S. Ct. 1442
(1987); United States v. Paradise, 107 S. Ct. 1053 (1987);
Local Number 98, Int’l Ass’n of Firefighters v. City of
Cleveland, 106 S. Ct. 3063 (1986); Local 28 of the Sheet
Metal Workers’ Int’l Ass’n v. EEOC, 106 S. Ct. 3019
(1986). Because of the extreme fluidity of the law and the
consequent striking shifts in the relevance of various facts,
it would be much better practice to remand to the fact-
finder—the district court—to determine in the first in-
stance the disposition of this case in light of these recent
Supreme Court decisions. I therefore respectfully dissent
and join Judge Cummings and Judge Fairchild in their
dissents.
The plurality opinion here is at great pains to show that
this is a “‘worse’’ case than Wygant and hence more de-
serving of unceremonious reversal. In fact, now (and prob-
ably even more clearly after further fact-finding in the
district court) this case is unmistakably different from
Wygant. In the district court and in the court of appeals,
the record in Wygant was unambiguously that of a “role
model’”’ case. The record there provided a basis for in-
creasing the percentage of minority teachers only for the
purpose of furnishing enough role models for minority
children or, alternatively, to compensate for societal dis-
crimination. By contrast, in the case before us, there is
solid record support for the school board’s concerns in in-
stituting a plan to redress its own past discrimination
against black teachers in hiring.
Four of the five Justices voting to reverse in Wygant
expressly rejected the lower courts’ determinations that
the goals of providing role models and remedying societal
discrimination were sufficient to justify the challenged
layoff provision. 106 S. Ct. at 1847-48 (plurality opinion);
id. at 1854 (O’Connor, J., concurring). Seven Justices, how-
29a
26 No. 84-2841
ever, stated (and the remaining two Justices did not dis-
agree) that the elimination of the effects of a public body’s
own past or present discrimination is a constitutionally
valid purpose for that body’s use of a race-conscious rem-
edy. Jd. at 1848 (plurality opinion); id. at 1854-57 (O’Con-
nor, J., concurring); id. at 1863 (Marshall, J., dissenting).
Justice O’Connor, who cast the decisive fifth vote, sum-
marized what she viewed as the areas of Court ‘“‘consen-
sus” in Wygant:
The Court is in agreement that . . . remedying past
or present racial discrimination by a state actor is
a sufficiently weighty state interest to warrant the
remedial use of a carefully constructed affirmative ae-
tion program. This remedial purpose need not be ae-
companied by contemporaneous findings of actual dis-
crimination to be accepted as legitimate as long as
the public actor has a firm basis for believing that
remedial action is required.
Id. at 1853. Adoption of remedial measures does not de-
mand a contemporaneous finding by a court or other body
that the public actor actually discriminated. Jd. at 1848
(plurality opinion); id. at 1854-57 (O’Connor, J., concurring);
id. at 1863 (Marshall, J., dissenting); id. at 1867 (Stevens,
J., dissenting). As Justice O’Connor argues, requiring
public employers to make findings that they had in fact
illegally discriminated before they can undertake race-
conscious remedies would obviously put a high price on
remedial measures. Such employers would have a rough
road to follow in fulfilling their constitutional duty to take
affirmative steps to eliminate the continuing effects of past
discrimination. /d. at 1855-56 (citing Swann v. Charlotte-
Mecklenburg Bd. of Educ., 402 U.S. 1 (1971); Green v.
New Kent County School Bd., 391 U.S. 430 (1968)). Of
the eight Justices who comment on this issue in Wygant,
those who demand the most of the employer would not
require a dauntingly rigorous showing. They would de-
mand only that, if the lawfulness of a plan is later chal-
lenged, the employer present the trial court with suffi-
30a
No. 84-2841 27
cient evidence to allow the court to determine ‘“‘that the
employer had a strong basis in evidence for its conclu-
sion that remedial action was necessary.” Jd. at 1848
(plurality opinion).
The main reason the Supreme Court did not remand
Wygant to a lower court was that there the only evidence
of past hiring discrimination was contained in “lodgings”
submitted by the defendant after the case had been brought
up from the Sixth Circuit. The plurality refused to consider
the ‘“‘non-record documents that respondent has ‘lodged’
with this Court,” citing “the heretofore unquestioned rule
that this Court decides cases based on the record before
it.” Id. at 1849 n.5. The plurality said that, where the
defendant’s asserted purpose is to remedy its past discrim-
ination, ‘“‘there is no escaping the need for a factual deter-
mination below—a determination that does not exist [in
Wygant].”’ Id. In like vein, Justice O’Connor found that
it was unnecessary to remand because the layoff provi-
sion there acted “to maintain levels of minority hiring that
have no relation to remedying employment discrimina-
tion.”’ Jd. at 1857. She noted the obvious—that the
discrepancy between the percentage of black teachers and
black students, on which the defendant had relied in sup-
port of its role model theory, was ‘‘not probative of em-
ployment discrimination.” /d.
Not only was the record in Wygant devoid of any evi-
dence of past employment discrimination, but, in fact,
there had been two judicial findings that the school board
in Wygant had not engaged in past discrimination in em-
ployment. A Michigan court had found that it ‘ ‘ha{d] not
been established that the board had discriminated against
minorities in its hiring practices. The minority represen-
tation on the faculty was the result of societal racial dis-
crimination.’”’ Jd. at 1845 (plurality opinion) (quoting
Jackson Educ. Ass’n. v. Board of Educ., No. 77-011484CZ
(Jackson County Cir. Ct. 1979)). Earlier, in a suit brought
by laid-off minority teachers seeking to require the Jack-
son Board to observe the race-conscious preferential layoff
3la
28 No. 84-2841
provision, a federal district court concluded “that it lacked
jurisdiction over the case, in part because there was in-
sufficient evidence to support the plaintiffs’ claim that the
Board had engaged in discriminatory hiring practices prior
to 1972.” Jd. at 1845 (plurality opinion) (discussing Jackson
Educ. Ass’n. v. Board of Educ., No. 4-72340 (E.D. Mich.
1976)). No wonder Justice O’Connor felt no need to re-
mand Wygant for a determination of how the layoff pro-
vision related to apparently non-existent past discrimina-
tion in employment.
The situation in South Bend was markedly different.
The South Bend schools were racially segregated by stat-
ute until 1949—only five years before Brown v. Board of
Education—and continued as a dual system at least into
the mid-70’s. The Office for Civil Rights (the ‘“OCR’’) of
the then Department of Health, Education and Welfare
(““HEW’’) conducted on-site reviews of the South Bend
schools in 1969 and 1975. Defendants’ Exhibit (“Def. Ex.”)
M-3; Def. Ex. M-6. The OCR reviewed complaints it re-
ceived about the South Bend School Corporation’s discrim-
inatory practices as well as information supplied by the
School Corporation itself. Jd. The OCR came down with
a clear indictment of the School Corporation in a series
of letters in 1975 and 1976. A letter dated March 18, 1975
described evidence that the School Corporation discrimi-
nated against minorities in the recruitment, hiring and
promotion of teachers and that it maintained a dual school
system in which predominantly black schools received sub-
stantially less financial and other support than predomi-
nantly white schools. Def. Ex. M-6. The OCR wrote again
on October 6, 1975, bluntly conveying its finding that the
School Corporation had violated Title VI of the Civil
Rights Act of 1964 by creating racially identifiable schools
and therefore had ‘‘an obligation to undertake sufficient
remedial action to eliminate the vestiges of its racially
discriminatory teacher assignment policies and practices.”
Def. Ex. M-3, at 2. This letter ordered the School Corpo-
ration to submit within forty-five days a plan to remedy
32a
No. 84-2841 29
its violations. By a letter dated March 8, 1976, the OCR
specifically required that the plan include assurances that
the School Corporation would maintain nondiscriminatory
practices for the recruitment, hiring and assignment of
teachers. Def. Ex. M-2, at 4.
On July 20, 1976, the United States District Court for
the District of Columbia ordered HEW to commence en-
forcement D presen against the School Corporation
unless HEW determined that the Corporation was in com-
pliance with Title VI. Brown v. Weinberger, 417 F. Supp
1215, 1221, 1223-24 (D.D.C. 1976) (naming the School Cor-
poration as one of twenty-six districts “found in violation
of [Title VI] after HEW investigations, many of which
were very lengthy, as long as seven years in duration,
before being concluded with findings of default’’) (Brown
admitted as Def. Ex. M-7). Subsequently, the federal gov-
ernment determined that the School Corporation had not
taken adequate corrective measures and filed suit alleg-
ing that “‘the South Bend Community School Corporation
. . . ha{s] engaged in acts of discrimination which were
intended and had the effect of segregating students and
faculty on the basis of race in the school system.”’ Def.
Ex. C-1, at 1 (consent order). The School Corporation
agreed to a consent decree on February 8, 1980. In a
subsequent opinion, the district court noted that the de-
segregation plan adopted on February 21, 1981 ‘‘was the
first comprehensive plan of its nature ever adopted for
the benefit of students attending the schools within the
defendant corporation. The filing of the Plan of Desegrega-
- tion came twenty-seven years after Brown v. Board of
Education, during which period two generations of stu-
dents passed through the school system.” United States
v. South Bend Community School Corp., 511 F. Supp.
a 1356 n.4 (N.D. Ind. 1981), aff'd, 692 F.2d 623 (7th
ir. 1982).
The consent decree provided, inter alia, that ‘“{t]he
Board of School Trustees shall continue to pursue its pres-
ent affirmative action hiring policies,’ Def. Ex. C-1, at
33a
30 No. 84-2841
3, and report to the federal government for the next four
years “‘the total faculty, by race, of the School Corpora-
tion,” id. at 4. Thus, in 1980, when the provision at issue
here was adopted, the effect of past discrimination against
black teachers and job applicants was thought serious
enough to warrant the imposition of affirmative action pro-
grams for hiring black teachers. These programs were to
be monitored by the federal government until the end of
1983. Here, with plenty of record evidence of past discrim-
ination, the district court should be accorded an opportu-
nity to determine whether the level of minority hiring was
closely related to the goal of correcting past discrimination.
The plurality opinion here seeks to deny much of this
background by pretending that history began only in 1972
(or perhaps 1978). The plurality opinion cites hiring sta-
tistics achieved only under the federal lash in the 1970’s
as being somehow representative of the “past” in South
Bend. This is like starting the history of slavery. with the
Emancipation Proclamation. The Supreme Court has re-
peatedly chastised the lower courts for ignoring history.
The Court has charged school authorities with a continu-
ing affirmative duty to eliminate all vestiges of past racial
discrimination regardless of when the discriminatory acts
took place. In Keyes v. School Dist. No. 1, 413 U.S. 189
(1973), the Court stated:
The courts below attributed much significance to the
fact that many of the Board’s actions in the core city
area antedated our decision in Brown. We reject any
suggestion that remoteness in time has any relevance
to the issue of intent. If the actions of the school au-
thorities were to any degree motivated by segregative
intent and the segregation resulting from those actions
continues to exist, the fact of remoteness in time cer-
tainly does not make those actions any less “inten-
tional.”’
Id. at 210-11. Similarly, in Green v. County School Bd.,
391 U.S. 430 (1968), the Court rejected a desegregation
34a
No. 84-2841 31
plan that would give all students the freedom to choose
a public school because the plan did not fulfill the school
board’s ‘‘affirmative duty to take whatever steps mighi
be necessary to convert to a unitary system in which ra-
cial discrimination would be eliminated root and branch.”
Id. at 437-38; see also Wygant, 106 S. Ct. at 1856 (O’Con-
nor, J., concurring) (states have a “constitutional duty to
take affirmative steps to eliminate the continuing effects
of past unconstitutional discrimination’’) (emphasis in orig-
inal); Swann v. Charlotte-Mecklenburg Bd. of Educ., 402
U.S. 1, 15 (1971) (“The objective today remains to elimi-
nate from the public schools all vestiges of state-imposed
segregation.”) (emphasis added).
The plurality opinion, rather naively it seems to me, also
states that, although the School Corporation may have
engaged in racial “steering” by assigning black teachers
to black schools, this has nothing to do with discrimina-
tion in hiring. In fact, the lead opinion claims that segre-
gating black teachers in black schools may improve their
employment prospects. No doubt this was true during the
many years when legally segregated schools in the South
provided the only market for black teachers. But atti-
tudes, in most quarters at least, have changed markedly
since those Jim Crow days.
Under modern conditions, we may safely assume that
a dual school system presents an uninviting prospect to
black job applicants. When a school board maintains racial-
ly identifiable schools, provides the black schools with less
financial and other support than the white schools and
staffs the black schools with black teachers who are given
much less opportunity for promotion than are white teachers
in the white schools, the school board sends a message
that “blacks need not apply” for jobs. Systems where
blacks are treated equally obviously present more attractive
opportunities. The School Corporation failed to dismantle
its segregated system, ignoring the fact that “({mJore than
twenty years ago the Supreme Court expressed impatience
for what it considered to be intolerable delays in the face
ara
35a
32 No. 84-2841
of its clear and unambiguous decisions,’’ Wade v. Hegner,
804 F.2d 67, 72 (7th Cir. 1986). Because of this foot drag-
ging, the trier of fact could reasonably adopt a working
_ hypothesis that the resulting atmosphere of discrimina-
tion produced fewer black teachers than would have been
the case under a constitutional regime.
The Supreme Court has employed an analogous infer-
ence to justify the imposition of race-conscious remedies:
An employer’s reputation for discrimination may dis-
courage minorities from seeking available employ-
ment .... In these circumstances, affirmative race-
conscious relief may be the only means available “to
assure equality of employment opportunities and to
eliminate those discriminatory practices and devices
which have fostered racially stratified job environ-
ments to the disadvantage of minority citizens.”
Local 28 of the Sheet Metal Workers’ Int'l Ass’n v.
EEOC, 106 S. Ct. 3019, 3036-37 (plurality opinion) (quoting
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800
(1973)). In Sheet Metal Workers, the plurality relied on,
inter alia, the trial court’s “determination that the union’s
reputation for discrimination operated to discourage non-
whites from even applying for membership,” to uphold a
twenty-nine percent minority membership goal.
In the school desegregation context, the Supreme Court
has held that where a court finds that a school board has
intentionally segregated’ students on the basis of race in
a “meaningful portion” of a school system, any other seg-
regation existing in the school system will be presumed
the result of unlawful discrimination. Keyes, 413 U.S. at
208. The school authorities will then bear the burden of
rebutting the prima facie case of unlawful segregative in-
tent. The Court recognized that “there is high probability
that where school authorities have effectuated an inten-
tionally segregative policy in a meaningful portion of the
school system, similar impermissible considerations have
motivated their actions in other areas of the system.” Jd.
36a
No. 84-2841 33
The efforts of the plurality to uncouple discriminatory
hiring practices from other sorts of discrimination—pri-
marily segregative practices—is not only naive, it is dan-
gerous. It suggests the re-emergence (unintended I am
sure) of a Plessy v. Ferguson—separate but equa!l—sort
of approach. The long history of discrimination in this
country teaches that those who would keep blacks down
by keeping them apart are also likely to keep them away
in the first place. An intent to segregate operates in
tandem with an intent to exclude. Hence, all the evidence
of past discriminatory practices by the South Bend Com-
munity School Corporation weighs on the scales determin-
ing the need for remedial action.
The plurality asserts that, even if the record does con-
tain evidence of past discrimination by the School Corpo-
ration, the record contains no evidence, nor did the School
Corporation argue at trial, that the decision to adopt the
layoff plan was motivated by a desire to remedy that dis-
crimination. This is not correct. The School Corporation
argued at trial that a remedial purpose motivated the
adoption of Resolution 1020 calling for increases in minori-
ty hiring—remedial increases that the layoff provision was
designed to preserve. The School Corporation’s counsel
declared in his opening statement at trial:
We will have, perhaps, a bit of evidence with re-
spect to the relationship between that—no minority
layoff clause and what was referred to as Resolution
1020 which was a resolution of the Board of Trustees
passed in November or December of 1978 at which
time the School Corporation for the first time in any
formal sense adopted an employment policy reflecting,
in effect, or at least [an] antecedent of an affirmative
action plan.
It occurred at a time in the mid ’70’s following in-
quiries by State authorities and the Federal Justice
Department concerning the fact there was—there
were racially identifiable schools within the system
37a
34 No. 84-2841
and the focus of the entire community reflected by
the Board of Trustees and the administration cen-
tered upon rectifying that situation.
It ultimately culminated in litigation and a consent
order of which I am sure this Court is very familiar,
the consent order entered in the segregation case on
February 8, 1980.
Trial Transcript at 12 (Apr. 26, 1984).
Hollis Hughes, Jr., a member of the Board of Trustees
at the time of the adoption of the hiring goal, testified
at trial that he had believed “there was [a] need for an
Affirmative Action policy’ at the time Resolution 1020
was adopted. Jd. at 89. He said that the Board had
discussed at its meetings the fact that racially identifiable
schools existed, id. at 91; that the minority teachers were
concentrated along with minority students in racially iden-
tifiable schools, id. at 92; that attempts were made “‘in
approximately 76 to correct some of that imbalance, al-
though not very strong attempts it appeared,” id.; that
as a member of the Board he was familiar with the fed-
eral government’s concerns in the late 1970’s over the dis-
criminatory assignment policies, id.; and that ‘‘the School
Corporation was notified in May of 1978 by the [State of
Indiana] Office of Schoolhouse Planning that it could not
proceed with any construction of new facilities until such
time as it addressed the issue of racially imbalanced schools
in the district,” id. at 93. Hughes testified that the layoff
provision was intended to preserve the affirmative action
hiring gains. Jd. at 95-96. He also testified about the ori-
gins of the affirmative action hiring program: “The evolu-
tion of the Resolution 1020 started with a former Board
of Trustees member, Mrs. Eugenea Braboy, who upon leav-
ing the Board made a very strong statement to the ef-
fect that racial imbalance and the issue of racial impro-
prieties within the school district needed to be addressed.”
Id. at 90. The School Corporation also introduced at trial
documentary evidence of its remedial purpose, including
the correspondence between HEW and the School Corpo-
38a
No. 84-2841 35
ration and minutes of meetings at which the school board
heard testimony that qualified black applicants for
teaching positions had been refused employment because
of their race. Def. Ex. K-2.
Based on the evidence in the record, it is ridiculous to
claim, as does the plurality, that the School Corporation’s
layoff provision was, as a matter of law, not intended
to further a remedial purpose. The fact that the School
Corporation may also have been motivated by a non-
compelling interest, such as that supplied by a role model
theory, does not cance! out or dilute the compelling
remedial purpose.
The plurality erroneously suggests that only statistical
comparisons of hiring percentages with percentages of
qualified applicants within the relevant labor pool are pro-
bative of job bias. Of course, courts routinely consider
other, more direct, evidence of discrimination and, in fact,
permit the use of statistical evidence largely because it
is often the only evidence available. As the Supreme
Court noted, “Statistics showing racial or ethnic imbalance
are probative . . . only because such imbalance is often
a telltale sign of purposeful discrimination . . . . ‘In many
cases the only available avenue of proof is the use of racial
statistics to uncover clandestine and covert discrimination
by the employer or union involved.’ ”’ Jnternational Bhd.
of Teamsters v. United States, 431 U.S. 324, 339 n.20
(1977) (quoting United States v. Ironworkers Local 86, 443
F.2d 544, 551 (citing cases), cert. denied, 404 U.S. 984
(1971)). Although we have in the record minority teacher
percentages (e.g., 3.5% in 1963-64) that are, at least,
strongly suggestive, the record does not seem to contain
labor pool statistics. We do not know whether these sta-
tistics exist or what they would reveal if they do exist.
This is an inquiry which the trier of fact could reasonably
undertake on remand. The district court could also deter-
mine exactly how probative of past employment discrimi-
nation were the other facts of record, many of which we
have recited here.
39a
36 No. 84-2841
Justice O’Connor would require a remedial plan to be
“narrowly tailored’ to achieve its remedial purpose,”
Wygant, 106 S. Ct. at 1857; the plan must implement “‘that
purpose by means that do not . . . unnecessarily tram-
mel the rights . . . of innocent individuals directly and
adversely affected by a plan’s racial preference,” id. at
1853-54. And I certainly agree that this aspect of affir-
mative action is of crucial importance. In this connection,
the defendants described in their brief on rehearing en
banc additional facts that may now be relevant in light
of the Supreme Court’s recent affirmative action opinions.
Defendants’ Brief on Rehearing En Banc at 21-25. Those
facts include measures by the School Corporation to mini-
mize the impact of the iayoffs on white employees. For
example, the collective bargaining agreement provided that
any teacher laid off during the term of the agreement would
be recalled first when the School Corporation began hiring
teachers again. In addition, the agreement created fifteen
permanent substitute positions to be filled by the laid-off
white teachers in order of seniority and gave the laid-off
teachers preferential mghts to temporary substitute posi-
tions, for which they were paid a daily rate equal to the
amount of their permanent annual salary divided by the
number of days in the school year. The defendants con-
tend that only thirteen to sixteen of the plaintiffs would
not have been laid off under a straight seniority layoff
and that all laid-off teachers had the opportunity to sub-
stitute teach a high percentage of the time. Jd. at 23-24.
Given these facts, the defendants argue, the layoff pro-
vision for the three-year life of the agreement is narrowly
tailored to achieve the School Corporation’s goals of reme-
dying the effects of the prior racially discriminatory hir-
ing practices and achieving a racially integrated faculty.
If the case were remanded, the district court could ex-
plore the significance, if any, of these and other additional
facts relating to the layoff provision. And the court could
make findings about the appropriateness of the layoff pro-
vision measured against the court’s assessment of the pre-
cise nature of the School Corporation’s compelling pur-
pose.
SLE ar
40a
No. 84-2841 37
Permitting the district court to receive new evidence
does not give the defendants two bites at the apple. Be-
cause of the radical shift in legal premises between the
time of trial and the time of this en banc decision, the
defendants have been unfairly handicapped in their effort
to adduce relevant evidence. What evidence is relevant
has been a question with rapidly changing answers over
the life of this case. It is unfair to expect the defendants
to have presented all the best evidence against a backdrop
of rapidly changing legal rules.
I have no idea what conclusion the district court would
reach on remand. I have outlined some of the factors
which I think could figure in the making of additional find-
ings on remand as well as the areas where additional evi-
dence might be helpful. But I do think that the district
court that found the original facts, and that might have
found important additional facts, is in a better position
than we to apply in the first instance the new Supreme
Court law to those wide-ranging facts. This is the order-
ly and conservative method of addressing the issues.
There is no need for a rush to judgment.
We as a society still have a great deal of work to do
in remedying our legacy of discrimination against minor-
ities. But whatever we do must not unnecessarily or un-
fairly infringe on the rights of individual members of the
majority. The South Bend Community School Corporation
and its teachers deserve high commendation for their good
faith efforts to meet the obligations of justice in these
respects. As the Supreme Court continues to clarify the
boundaries of permissible action, I hope other employers
and their employees will undertake in good faith to set
right old wrongs in accordance with new, clearer and,
hopefully, more just rules.
I respectfully dissent.
FAIRCHILD, Senior Circuit Judge, with whom Circuit
Judges CUMMINGS, Woop, JR., and Cupany join, dissent-
ing. I address one additional facet of the case which |
find troubling.
38 No. 84-2841
The judges in the majority decline to direct the district
court on remand to decide whether the Board had an ade-
quate 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 agree-
ment went too far.
With all respect, it seems to me that if there were a
proper basis for remedial action, overbreadth of the for-
mula should not end the case.
Assuming that the majority is correct in determining
that the formula cannot be sustained, particularly under
worst-case scenarios, | 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 in-
creased 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 devel-
oped on remand and would justify affirmative action suf-
ficient to maintain 13%, only those plaintiffs who would
not have been laid-off if only the 138% level were main-
tained would be entitled to relief.
Put another way, if the formula went too far, then ac-
cepting the principle that properly based affirmative ac-
tion is permissible, Wygant, 106 S. Ct. at 1847, it seems
to follow that recovery in this case should be 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
42a
No. 84-2841 39
there is room to address whether, and to what extent,
the departures from strict seniority which actually oc-
curred were justified as a remedy for a level of minority
representation held down by past discrimination.
A true Copy:
Teste:
Oe ORE EE OO mee eee eeeeees
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA 79004—Midwest Law Printing Co., Inc., Chicago—5-1887—450
43a
United States Court of Appeals
Sor the Sebenth Circuit
Chicago, Mlinsis 60604
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
Hon.
February 12, 1986
Before
WALTER J. CUMMINGS, Chief Judge
WILLIAM J. BAuER, Circuit Judge
HARLINGTON Woo, JR., Circuit Judge
RICHARD D. Cupany, Circuit Judge
RICHARD A. PosNER, Circuit Judge
JOHN L. CorFey, Circuit Judge
JOEL M. FLaum, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
ELMER BRITTON, et al., Appeal from the United
Plaintiffs-Appellants, | States District Court
for the Northern Dis-
trict of Indiana, South
No. 84-2841 bia Bend Division.
SOUTH BEND COMMUNITY /
SCHOOL CORPORATION, et seat
al.,
Defendants-Appellees.) Allen Sharp, Judge.
ORDER
On consideration of the petition for rehearing and
suggestion for rehearing en banc filed by counsel for
the plaintiffs-
appellants in the above-entitled cause, and
the response therein filed by counsel for the defendants-
appellees, a vote of the active members of the court having
been requested, and a majority’ of the judges in regular
active service having voted to rehear this case en banc,
IT IS HEREBY ORDERED that the aforesaid petition
for rehearing and suggestion for rehearing en banc be, and
the same is, GRANTED.
IT IS FURTHER ORDERED that the panel opinion
and judgment entered October 21, 1985 are hereby
VACATED, and that this case will be reheard en banc at
the convenience of the Court.
“The Honorable Kenneth F. Ripple, an active member of the
Court did not participate in consideration of the petition for
rehearing en banc.
The Honorable Thomas E. Fairchild was a member of the
original panel, but he did not participate in the vote on sugges-
tion for rehearing en banc.
45a
JUDGMENT —- ORAL ARGUMENT
United States Court of Appeals
For the Sesenth Circuit
Chicago, Illinois 60604
October 21, 1985
Before
Hon. RicHarp D. Cupany, Circuit Judge
Hon. RicHARD A. Posner, Circuit Judge
Hon. THOMAS E. FAIRCHILD, Senior Circuit Judge
ELMER BRITTON, et al., > —— — the oo
er tates District Court
Plaintiffs-Appellants, for the Northern Dis-
; | trict of Indiana, South
No. 84-2841 vs. | Bend Division.
SOUTH BEND COMMUNITY ’ Nos. 82 C 283
SCHOOL CORPORATION, et | 82 C 485
al.,
Defendants-Appellees. Sean Rees Say
This cause was heard on the record from the United
States District Court for the Northern District of Indiana,
South Bend Division, and was argued by counsel.
On consideration whereof, IT IS ORDERED AND
ADJUDGED by this Court that the judgment of the said
District Court in this cause appealed from be, and the same
is hereby, AFFIRMED, with costs, in accordance with the
opinion of this Court filed this date.
46a
in the
United States Court of Appeals
For the Seventh Circuit
No. 84-2841
ELMER BRITTON, et al.,
Plaintiffs-Appellants,
v.
SouTH BEND COMMUNITY SCHOOL CORPORATION, et al.,
Defendants-Appellees.
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
Nos. 82 C 283 and 82 C 485—Allen Sharp, Judge.
ARGUED MAY 28, 1985—DECIDED OCTOBER 21, 1985
Before CUDAHY and POSNER, Circuit Judges, and FAIR.
CHILD, Senior Circuit Judge.
CupAnyY, Circuit Judge. This is a “reverse discrimina-
tion” case in which we are required to determine whether
a clause in a collective bargaining agreement between a
teachers’ union and a school district that prohibits layoffs
of ‘“‘minority” teachers, and layoffs of white teachers pur-
suant to that clause, violate either the Equal Protection
Clause of the Fourteenth Amendment or Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seg.
Although the district court relied on its earlier decision |
in Janowiak v. Corporate City of South Bend, 576 F.
Supp. 1461 (N.D. Ind. 1983), rev’d, 750 F.2d 557 (7th Cir.
1984), which we reversed after the district court issued
47a
its opinion in this case approving the clause, 593 F. Supp.
1223 (N.D. Ind. 1984), we affirm the district court.
I.
A
Between the years 1980 and 1983 teacher employment
in the South Bend public schools was governed by a col-
lective bargaining agreement between the South Bend
Community School Corporation (the “School Corporation’)
and the National Education Association of South Bend,
the exclusive bargaining represenative of teachers in the
South Bend public school system. Article XXIII of the
1980-83 Agreement was entitled “Reduction in Force—
Recall” and provided in Section 9: “‘No minority bargain-
ing unit employee shall be laid off.’”’ The term ‘“minor-
ity” in this “no minority layoff provision” (sometimes
simply the “provision” or “clause”’) referred only to black
teachers. The clause had not appeared in any prior col-
lective bargaining agreement between the School Corpo-
ration and NEA-South Bend.
Prior to and during the negotiations over the 1980-83
Agreement, the School Corporation anticipated the pos-
sibility of future layoffs because of declining school enroll-
ment and budgetary constraints. It proposed the no minor-
ity layoff provision to protect the gains it had made in
hiring black teachers to reach the goal, mandated by a
prior consent decree, of having the minority representa-
tion on the teaching staff approximately equal that of the
minority student population. The negotiations leading up
to the 1980-83 Agreement lasted two weeks. Represen-
tatives of NEA-South Bend met with the teachers after
the negotiations concluded to discuss the terms of the
Agreement. Article XXIII, Section 9 was discussed at
that meeting. 593 F. Supp. at 1226. The exact language
of the provision was not present<d at the meeting, but
the document distributed to the teachers listed changes
in articles from previous contracts and clearly indicated
that the clause would prefer blacks over whites in the
48a
event of layoffs. Teachers who were not members of the
NEA-South Bend (about one-fourth of the South Bend
teachers) were allowed to attend that meeting but were
not allowed to vote. Those teachers who were members
of the union ratified the Agreement by a subsiantial
margin. Inj. Tr. 83-88.! No member of the union ever filed
a grievance alleging that he or she was not fairly repre-
sented by the NEA-South Bend in the negotiations
leading up to the 1980-83 Agreement. 593 F. Supp. at
1226. .
Late in April of 1982, 188 white teachers were notified
that their contracts were being considered for cancella-
tion. After various proceedings including an all-night hear-
ing on June 1 to 2, 1982, the Board passed a resolution
on June 7 affirming the contract cancellations and laying
off the 188 teachers. See 593 F. Supp. at 1226-27. Pur-
suant to Article XXIII, Section 9 of the 1980-83 Agree-
ment, no black teachers were laid off. The number of
teachers laid off was subsequently reduced to 146 under
a consent order in South Bend Community School Corp.
v. National Education Association-South Bend, No. N-7015
(St. Joseph Cir. Ct., approved Sept. 29, 1982), in which
the School Corporation agreed to recall forty-two teachers.
593 F. Supp. at 1227 n.2. Because of the no minority layoff
provision, forty-eight black teachers with certifications
similar to, but with less seniority than, forty-eight of the
laid off white teachers remained on the job.
On June 11, 1982, two of the laid off white teachers filed
a class action suit in the United States District Court for
the Northern District of Indiana, alleging that the layoffs
discriminated against them on account of their race in
viclation of the Fourteenth Amendment, 42 U.S.C.
§§ 1981 & 1983, Title VII of the Civil Rights Act of 1964,
1 References to the transcript of the evidentiary hearing on the
preliminary injunction motion held on November 9 and 10, 1982,
will be designated “Inj. Tr.” References to the transcript of the
bench trial on liability heid on April 26 and 27, 1984, will be
designated “Tr. Tr.”
49a
42 U.S.C. § 2000e et seg., and the indiana Teacher Tenure
Act, IND. CoDE § 20-6.1-4-1 et seg. (1982). Britton v.
South Bend Community School Corp., No. S82-283 (N.D.
Ind. filed June 11, 1982). The complaint was amended to
delete the class action aspect, and eventually forty-one in-
dividual teacher plaintiffs were named instead.?
On October 5, 1982, the teachers filed an action in the
Indiana courts against the School Corporation and its
Board of Trustees (sometimes simply the “Board’’) for a
mandate under section 20-6.1-4-12 of the Indiana Code
based on alleged violations of the Indiana Teacher Tenure
Act, violations of rights resulting from the manner in
which the layoff hearings were conducted and other state
claims. Andrews v. South Bend Community School Corp.,
No. P-1077 (St. Joseph Cir. Ct. filed Oct. 5, 1982). The
defendants removed this case to federal court, where it
received case number S82-485 and was consolidated with
Britton.
Plaintiff teachers filed a motion for a preliminary injunc-
tion on October 5, 1982, Record Item 14, upon which the
court held an evidentiary hearing on November 9 and 10,
1982, and oral argument on December 2, 1982. Cf. 593
F. Supp. at 1228. The motion was denied by order on
December 15, 1982. The issue of liability was tried to the
2 All of the plaintiff teachers have duly complied with the admin-
istrative filing procedures requisite for bringing a Title VII race
discrimination suit and have received right to sue letters. Tr. Tr.
7; Record Item 28. A motion for partial summary judgment against
two plaintiff teachers, H. Keller and L. Edler, was filed on De-
cember 2, 1982. That motion was granted on March 10, 1983, and
those parties dismissed from the action. 593 F. Supp. at 1228.
Fifteen of the plaintiffs were actually recalled for the 1982-83
school year, but the remaining twenty-six were not. Thirteen of
those teachers not immediately recalled apparently had enough
seniority to withstand the layoffs but for the no minority layoff
provision. The remaining thirteen would need to prevail on their
various pendent state ciaims as well as on the federal claims in
order to establish a right to reinstatement or damages. Pl. Br.
at 8; App. 41.
court in a two-day trial on April 26 and 27, 1984. Both
sides submitted post-trial briefs and proposed findings of
fact and conclusions of law. Oral argument was heard on
August 3, 1984.
On September 25, 1984, the district court entered a
memorandum and order. 593 F. Supp. at 1223. In its deci-
sion the district court found for the defendants on the
federal claims, holding the no minority layoff clause to
be constitutional and permissible under Title VII. The
court declined to exercise its pendent jurisdiction over the
plaintiffs’ state law claims, and dismissed them without
prejudice. The teachers appeal, arguing that the no minor-
ity layoff clause (and the layoffs they suffered pursuant
to it) violate (1) the Equal Protection Clause of the Four-
teenth Amendment, (2) Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e et seg., and (8) the Indiana
Teacher Tenure Act, IND. CoDE § 20-6.1-4-1 et seg. (1982).
B.
The long history of racial segregation and discrimina-
tion in Indiana is chronicled in detail in United States v.
Board of School Commissioners of Indianapolis, 332 F.
Supp. 655, 658-77 (S.C. Ind. 1971), aff'd, 474 F.2d 81 (7th
Cir.), cert. denied, 407 U.S. 920 (1972); see also Note, In-
dianapolis Desegregation: Segregative Intent and the In-
terdistrict Remedy, 14 IND. L. REv. 799, 803-04 (1981).
Slavery and legally sanctioned discrimination against blacks
existed during Indiana’s territorial period and during its
early history as a state. 332 F. Supp. at 659-61, 663. Even
in the pre-Civil War years Indiana’s public schools were
segregated or simply excluded black children. Jd. at 663.
Ratification of the Fourteenth Amendment had little ef-
fect in Indiana’s schools; the state passed a statute in 1869
authorizing black children to attend school, but requiring
segregated systems. /d. at 663-64. Indeed, the statutes
of Indiana required segregated schools up until 1949. Act
of March 8, 1949, ch. 186, 1949 Ind. Acts 603 (present ver-
sion codified at IND. CoDE § 20-8.1-2-1 et seg. (1982)).
5la
Our review of the record indicates that the earliest
period for which there is information about the percent-
age of minority teachers is 1963-64. For that period the
minority teaching staff in South Bend was only 3.5% of
the total teaching staff. Def. Ex. H. In 1968-69 minority
teachers accounted for a slightly increased 6.8% of the
teaching staff.? Jd. For 1969 and later years, the record
includes more expansive evidence of past discrimination
by South Bend in the recruitment, hiring and promotion
of minority teachers. On March 13, 1975, Kenneth Mines,
director for Region V of the Office for Civil Rights of the
then Department of Health, Education, and Welfare, sent
a letter to the Superintendent of the School Corporation.
Def. Ex. M-6. The letter refers to an October 1969 on-
site review of the School Corporation’s compliance with
Title VI of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000d. The review encompassed complaints by several
groups and individual citizens of discriminatory and
segregative practices,5 and other aspects of the School
Corporation’s compliance. The letter listed five areas in
which the Office for Civil Rights found evidence of racial
discrimination on the part of the School Corporation. Two
of these areas were recruitment of minority teachers and
3 In 1968-69 minority students comprised sixteen percent of the
student body. Def. Ex. H. The corresponding figure for 1963-64 is
not in the record.
4 The focus of the dissent is on the better documented years
around and after 1978. This approach, however, hardly provides
an adequate perspective on the relevant history.
5 The dissent says that ‘there need be no correlation between”
segregation and discrimination against black teachers. Whatever
may be the merit of this proposition as a bit of abstract logic,
we think it is unsupportable in the real world. Of course, legally
segregated schools in the South before Brown v. Board of Educa-
tion may have created a unique demand for black teachers, but
this says little about racial dynamics in South Bend, Indiana. In
oneal. we think the vagaries of numbers and ratios in various
real and hypothetical situations are less restrictive than the simple
history of black teacher participation (or non-participation) in the
South Bend schools.
52a
promotions for black and female teachers. The letter also
stated that the Office had reviewed recent (January and
October 1974) statistical forms completed by the Super-
intendent’s office. According to the letter, these forms “‘in-
dicate little improvement with regard to hiring and pro-
motion of minority teachers.” Def. Ex. M-6, at 2.
Superintendent Dake responded in a lengthy letter of
April 11, 1975. Def. Ex. M-5. Among other things the let-
ter detailed the School Corporation’s efforts to recruit
minority teachers, which included visits to a number of
predominantly black colleges and universities in 1971-72,
and more in 1973. The letter listed the number of new
minority staff hired for the seven academic years 1968-69
to 1974-75 (totalling 165) and tried to explain the small
change in total minority staff by the number of minority
+9 resignations (109) over the same period.® Def. Ex.
-5, at 6-7.
In August 1975 the Regional Office of the OCR sent
a letter to many school districts, including South Bend.
Def. Ex. M-4. The letter concerned the possible discrimi-
natory impact of layoffs carried out pursuant to seniority
rules. The letter stated that seniority rules were not
racially unbiased if they perpetuated the effect of past
discriminatory personnel practices in recruitment, hiring,
promotion and assignment. The letter noted that in the
case of school districts that had failed to hire minority
teachers until recent years, and so would have a dispro-
portionate number of such persons with low seniority
status, the use of a system-wide standard would have a
disproportionate—and hence potentially discriminatory—
effect on minority group persons. Def. Ex. M-4, at 1-2.
6 The letter did not compare the resignation rate of black teachers
to that of white teachers or otherwise attempt to explain the
number of resignations of black teachers. There was testimony at
one of the Board’s 1978 meetings that the turnover of black teachers
—e = _— was comparable to that of white teachers. Def.
x. K-3, at 1.
53a
The Office for Civil Rights conducted a second on-site
review in 1975, but remained unsatisfied. By letter of Oc-
tober 6, 1975, the Office informed the School Corporation
that it had determined that the School Corporation was
not in compliance with the provisions of Title VI. Def.
Ex. M-3. In particular, the letter remarked on the racially
discriminatory teacher assignment practices of the School
Corporation, and required the School Corporation to sub-
mit within forty-five days a plan that would eliminate any
vestiges of past discrimination. Def. Ex. M-3, at 3. After
further consultation and correspondence with the School
Corporation, the Office for Civil Rights, by letter of March
8, 1976, directed the School Corporation to submit a com-
pliance plan that included an assurance that the Corpora-
tion would in the future maintain non-discriminatory
a hiring and assignment practices. Def. Ex.
-2, at 4.
Meanwhile, a number of individuals had filed an action
in the United States District Court for the District of Co-
lumbia seeking an injunction directing the Department of
Health, Education, and Welfare to commence enforcement
proceedings against several school districts that had been
found by HEW not to be in compliance with Title VI.
Among the named school districts was the South Bend
Community School Corporation. The District Court found
that the School Corporation had been found in violation
of Title VI and that neither voluntary compliance had
been achieved nor enforcement proceedings had been in-
stituted, and ordered HEW to commence enforcement pro-
. Brown v. Weinberger, 417 F. Supp. 1215 (D.D.C.
1976).
In 1978 the Board of Trustees considered certain aspects
of past discrimination in the school system and ways to
eradicate its effects. The discussions began when, at the
last meeting during her term as a member of the Board,
held on pon 19, 1978, Ms. Eugenia Braboy moved that
the Board adopt a resolution setting a five-year goal
within which to adopt and implement programs to reduce
the racial imbalance in the school system (and especially
that associated with racially identifiable schools). The pro-
posed resolution passed unanimously. Def. Ex. K-1.
Discussions were held at several subsequent Board
meetings focusing on prior discrimination manifested in
the extremely low percentages of minorities on the School
Corporation’s teaching staff. Tr. Tr. 90-91; Def. Exs. K-1
to K-5 (minutes of school board meetings); 593 F. Supp.
at 1225. Past discrimination in the recruitment, hiring and
assignment of minority teachers was said to be reflected
in and to be the cause of the gross disparity between the
percentage of black teachers employed by the School Cor-
poration and the percentage of blacks in either the stu-
dent body or local community. Def. Exs. E-1, E-2. The
percentage of blacks in the student body and in the com-
munity approximated 22% in late 1978 while the percent-
age of black teachers was only 10.4%.
The statistical evidence presented was not merely of a
present disparity between the percentages of minority
teachers and minority students. Rather it ranged over a
period of at least eight years. See e.g., Def. Ex. K-3; at
2; see also Def. Exs. E-1, E-2.
Although no statistics were presented to the effect that
the School Corporation had been hiring a disproportionate-
ly small number of black teachers,’ there was testimony
that there was no shortage of qualified black applicants
for teaching positions. Def. Ex. K-2. There was testimonial
evidence that implied that five particular qualified black
applicants had not been hired because of their race. Def.
Ex. K-2, at 2. Testimonial evidence also established that
7 At oral argument counsel for the plaintiff teachers stated that
records on the race of applicants is only available for one year.
Def. Ex. K-3, at 6. Counsel for the School Corporation stated that
figures on the national or state pool of qualified black teaching
applicants were probably not available. This is apparently one of
the reasons Resolution 1020 as adopted set the goals in terms of
the percentage of minority students in the school district; the
rg re had those figures readily available. Def. Ex.
-5, at 10.
55a
the School Corporation had a practice of posting full-time
vacancies so they could be filled by hiring substitute
teachers already employed by the School Corporation, and
that principals’ requests that a particular substitute be
hired for a vacancy were often honored. Only if no can-
didate could be found within the School Corporation would
the position be advertised and recruiting from the out-
side take place. Def. Ex. K-3.
As a result of the discussions at the meetings held dur-
ing the fall, on December 18, 1978, the Board adopted
Resolution 1020. App. 31-34.8 Resolution 1020 states that
“{pjroviding the community with quality education should
be the top priority in the schools,” App. 31, and sets out
the School Corporation’s policies and employment goals.
Two of the goals adopted in Resolution 1020 were (1) that
the School Corporation would strive to increase the
percentage of minorities in its teaching force until that
percentage “approximately correspond[ed]’ to the percent-
age of minorities in its student body, and (2) that the
School Corporation would “endeavor to exceed each year
the previous year’s employment figures for minority per-
sonnel .. . until the minimum desired percentages [were]
reached.” App. 34. In the three years following the adop-
tion of Resolution 1020 the School Corporation hired a
greater percentage of black teachers than it had in any
comparable prior period. As a result, the percentage of
black teachers rose from 10.4% for the 1978-79 academic
year to 13.0% for the 1981-82 academic year. During the
latter year black pupils made up 25.42% of the student
population. 593 F. Supp. at 1225.
The Department of Justice filed suit against the School
Corporation on February 8, 1980. United States v. South
8 An additional reason given for the adoption of Resolution 1020
was that students, both black and white, needed a sufficient
number of minority teachers to act as role models. See Inj. Tr.
103; Def. Ex. H, at 2; App. 31. We, of course, do not rest our
decision on any particular theory of role modeling and the dissent’s
emphasis on this subject is misplaced.
56a
Bend Community School Corp., No. S80-35 (N.D. Ind. filed
Feb. 8, 1980).° Its complaint alleged that the School Cor-
poration had engaged in acts of racial discrimination in-
tended to have and having the effect of segregating stu-
dents and teachers on the basis of race. Among these acts
were the hiring, promotion and assignment of faculty on
the basis of race. Appended to the complaint was a cer-
tificate by the Attorney General (as required by 42 U.S.C.
§ 2000c-6(a)) stating that he had received complaints of
racial discrimination and school segregation and had in-
vestigated the complaints and determined that they were
meritorious.
The case was settled by a consent order the same day
it was commenced. Def. Ex. C-1, App. 35. As in most con-
sent decrees, the defendant Schoo! Board denied that it
had engaged in intentional acts of racial discrimination.’°®
The consent order required the School Corporation to
develop a specific desegregation plan for student assign-
ments by September 1, 1980. The consent order also re-
quired the School Corporation to rectify the effect of past
discrimination against teachers, and provided:
6. By the beginning of the 1980-81 school year, the
faculties of each school operated by the School Cor-
poration shall be appropriately adjusted so that each
8 The district judge below took judicial notice of the record in
the desegregation case, over which he had presided. Inj. Tr. 100.
10 The present Assistant Attorney General for Civil Rights makes
much of this denial in a misleading footnote to his amicus brief.
U.S. Br. at 5 n.4. The government neglects the fact that almost
all consent decrees take the form ‘We didn’t do it. We agree not
to do it again.’”’ The reasons for this, at least in the discrimina-
tion context, are compellingly set out by Justice Blackmun in his
opinion in United Steelworkers v. Weber, 443 U.S. 193, 209-11
(1979) (Blackmun, J. concurring). Further, the government ignores
the fact that it alleged that there had been such discrimination,
and must have had what it considered to be strong evidence of
this because the Attorney General certified that the complaints
of discrimination were meritorious and the department brought
suit.
PEE TIN Bian ORCA OTERO AMET I RRL I Pt HBLIRN mre ond cnae se Ne
57a
approximately reflects the average racial composition,
teaching experience, and teaching disciplines of the
faculty of the school system as a whole. Educational
and extracurricular programs shall be equal for each
—— ‘serving similar grade levels and similar student
needs.
8. The Board of School Trustees shall continue to
pursue its present affirmative action hiring policies.
Consent Order at 3, App. 37. The Board’s affirmative ac-
tion policy was set out in Resolution 1020. Thus, the con-
sent order, by mandating continuation of that policy, re-
quired the Board to continue to increase the percentage
of minorities on its teaching staff until that percentage
equalled or roughly approximated the percentage of minor-
ity pupils in the student body, and to endeavor to exceed
each year the previous year’s employment figures for mi-
nority personnel. And it was in furtherance of that policy,
in light of expected school enroliment and budgetary con-
straints, that the no minority layoff clause was proposed
by the School Corporation, agreed to by the teachers’
negotiators and strongly ratified by the union teachers.!!
11 There is no evidence at all that the teachers did not know what
they were doing or could not make their views felt—as the dis-
sent suggests. There is no reason to believe that the teachers did
not or were not abie to press their views about key provisions
on the leadership. It is much more likely that the white teachers
recognized the educational importance of adequate minority repre-
sentation on the teaching staff and were willing to go to the
unusual lengths of putting their own interests at risk in support
of that principle.
We are not insensitive to the painful impact of the seniority pro-
visions on a number of white teachers. But the teachers were not
oblivious of these possibilities when they voted for the provision.
Apparently they recognized that to set right longstanding injustice
some sacrifice by the majority was inescapable.
58a
II.
The Supreme Court has consistently held that a govern-
mental body may use race-conscious plans to eradicate the
effects of past discrimination. Fullilove v. Klutznick, 448
U.S. 448 (1980); Regents of the University of California
v. Bakke, 488 U.S. 265 (1978); United Jewish Organiza-
tions v. Carey, 430 U.S. 144 (1977); Swann v. Charlotte-
Mecklenburg Board of Education, 402 U.S. 1 (1971);
McDaniel v. Barresi, 402 U.S. 39 (1971); North Carolina
Board of Education v. Swann, 402 U.S. 438 (1971). In
Bakke and Fullilove the court held that affirmative ac-
tion plans voluntarily adopted by governmental bodies are
not per se unconstitutional. Fullilove, 448 U.S. at 482;
Bakke, 438 U.S. at 287; see Janowiak v. Corporate City
of South Bend, 750 F.2d 557, 561 (7th Cir. 1984), petition
for cert. filed, 53 U.S.L.W. 3896 (U.S. June 10, 1985) (No.
84-1936). Similarly, the Court has held that employers may
adopt affirmative action plans to remedy past discrimi-
nation. United Steelworkers of America v. Weber, 443 U.S.
193 (1979); Janowiak, 750 F.2d at 561. Thus, race-conscious
programs do not, as a matter of law, violate either Title
VII or the Equal Protection Clause of the Fourteenth
Amendment. Janowiak, 750 F.2d at 561. The inquiry
before this court, therefore, is whether this particular af-
firmative action plan is valid under the constitution and
Title VII. We will begin with an analysis of the plan pro-
vision under Title VII.
ITI.
In United Steelworkers of America v. Weber, 443 U.S.
193 (1979), the Supreme Court provided guidelines for
analyzing the validity of an affirmative action plan under
Title VII. The Court declined in Weber to promulgate a
general test to distinguish between permissible and im-
permissible affirmative action plans. Weber, 443 U.S. at
208. However, the Court did find that the plan before it
lay on the permissible side of the line. Jd. The plan had
been entered into by the employer and the union in order
14
59a
to “eliminate conspicuous racial imbalances in Kaiser’s
then almost exclusively white craftwork forces,” 443 U.S.
at 198, by reserving for blacks half the openings in newly-
created in-plant training programs. Prior to initiation of
the in-plant training programs, Kaiser had only hired as
craft-workers for its plants persons with prior craft ex-
perience (who were almost all white because craft unions
had long excluded blacks). Jd. The Court took judicial
notice of the fact that craft unions excluded blacks. 443
U.S. at 198 n.1 (“Judicial findings of exclusion from crafts
on racial grounds are so numerous as to make such ex-
clusion a proper subject for judicial notice.’’). Thus, the
purpose of the plan mirrored those of the statute, for it
was “designed to break down old patterns of racial segre-
gation and hierarchy.” 443 U.S. at 208. Second, the plan
did not “unnecessarily trammel the interests of the white
employees.” Jd. The Court concluded, therefore, that the
plan fell ‘within the area of discretion left by Title VII
to the private sector voluntarily to adopt affirmative ac-
tion plans designed to eliminate conspicuous racial imbal-
ance in traditionally segregated job categories.” 443 U.S.
at 209 (footnote omitted).
On its facts Weber dealt with whether and to what ex-
tent a private employer could adopt an affirmative action
plan consistent with Title VII. Title VII applies as well
to public employers, including states and their official agen-
cies. See 42 U.S.C. § 2000e(a), (b), (h) (codifying amend-
ments made by § 2(1), (2), (6) of the Equal Employment
Opportunity Act of 1972, Pub. L. No. 92-261, 86 Stat. 103).
The analysis from Weber has been applied to governmen-
tal employers, so that an affirmative action plan that satis-
fies the Weber criteria will insulate the employer from
Title VII liability for particular employment decisions pur-
suant to it. Janowiak, 750 F.2d at 562-63; Bushey v. New
York State Civil Service Commission, 733 F.2d 220, 227
n.8 (2d Cir. 1984) (“We reject Plaintiffs’ contention that
Weber . . . is inapplicable because the employer in Weber
was a private entity whereas here it is a public entity.”),
cert. denied, 105 S. Ct. 803 (1985); Bratton v. City of
60a
Detroit, 704 F.2d 878, 884 (6th Cir.), modified in other
respects, 712 F.2d 222 (6th Cir. 1983), cert. denied, 104
S. Ct. 703 (1984); La Riviere v. EEOC, 682 F.2d 1275,
1279 (9th Cir. 1982) (collecting cases); see Deveraux v.
Geary, 765 F.2d 268, 274 n.5 (1st Cir. 1985) (collecting ad-
ditional cases); see also United States v. City of Chicago,
573 F.2d 416, 423 (7th Cir. 1978) (Title VII standards do
not vary depending on whether defendant is a public or
private employer).
A.
Based on the Weber Court’s reliance on the employer’s
determination of a “conspicuous racial imbalance’’ in what
it took judicial notice to be a “traditionally segregated
job category,” this court has interpreted Weber as requir-
ing that governmental affirmative action plans “be based
upon findings of past discrimination by a competent body.”
Janowiak, 750 F.2d at 561; ef. Lehman v. Yellow Freight
System, Inc., 651 F.2d 520, 527 n.14 (7th Cir. 1981) (refus-
ing to decide whether objectives other than remedying
past discrimination would support private affirmative ac-
tion plans). In Janowiak, we determined that on a sum-
mary judgment motion it was improper to conclude that
as a matter of law an affirmative action plan survived a
Title VII challenge when the plan was adopted solely on
the grounds of a present statistical disparity between em-
ployees and the relevant labor pool and in spite of the
fact that two review boards had found the hiring prac-
tices reasonable. Janowiak, 750 F.2d at 562-63.
The first step in a Weber analysis under Janowiak is
to determine whether there has been a finding of past
discrimination “‘by a a body.” In Janowiak we
held that the South Bend Board of Public Safety was a
body competent both to make findings of past discrimi-
nation and to implement an affirmative action plan “‘be-
cause the Board is the ‘administrative body legally respon-
sible for the operation of the South Bend Fire Depart-
ment.’ ”’ Janowiak, 750 F.2d at 561 (quoting IND. CoDE
;
6la
ANN. § 36-8-3-2 (West 1983)).12 Here, of course, the
Board of Trustees is the body legally responsible for
operating the South Bend school district. Therefore it is
competent both to make findings of past discrimination
and to implement an affirmative action plan. But the
Board is not the only body involved here—the Office for
Civil Rights of HEW, the United States Department of
Justice, and the United States District Courts for the Dis-
trict of Columbia and the Northern District of Indiana
have been involved. The plaintiffs do not, as they could
not, argue that courts of the Office of Civil Rights or
the Department of Justice are not bodies competent to
make the required findings.
Rather, they argue that any findings that were made
by these bodies are not adequate. We disagree. None of
the findings here were based solely on evidence of a pres-
ent “statistical disparity between the percentage of minor-
ities employed and the percentage of minorities within the
community.” Janowiak, 750 F.2d at 562. Nor, of course,
12 Obviously this rationale would not apply to a private employer
for whom there is no administrative body legall egally responsible for
its operation. Presumably the employer is Yioct Sg. pm to make
a finding of past Gourbuination, or instance, by determining that
the job category is “traditionally segregated.
In holding that the South Bend Board of Public Safety was com-
petent to make findings of past discrimination, we were following
the Brennan plurality in rather than Justice Powell’s Bakke
opinion. One of the issues in Bakke was whether the Board of
Regents of the University of California was competent to make
findings of past discrimination. The Board was the “administrative
body legally responsible for the operation” of the University of
California at Davis Medical School. Justice Powell determined that
the Board was not competent to make the findings. Bakke, 438
U.S. at 309-10 (Powell, J. opinion). The Ruses a plurality deter-
mined that the Board was competent. Bakke, 438 U.S. at 366 n.42
(Brennan, White, Marshall and Blackmun, JJ. opinion). The School
Board here is analogous to the Board of Trustees in Bakke. There-
fore, under the approach of the Brennan plurality followed in
Janowiak, it is a body competent to make findings of past dis-
crimination.
62a
did the district court here approve the no minority layoff
provision as a matter of law on summary judgment.
The no minority layoff provision was adopted by the
Board and the teachers as a way to further Resolution
1020 in the face of possible layoffs necessitated by enroll-
ment decline and budget constraints. Resolution 1020 was
adopted by the Board after a series of meetings at which
it considered the problem of the vestiges of past discrim-
ination in the school system. It is true that the Board
received statistics concerning the percentages of minor-
ity teachers and pupils in the school system. The statistics
were not, however, merely for the current year, but cov-
ered a number of years. Further, the Board heard nonsta-
tistical evidence. There was testimony that there was not
a shortage of black applicants for teaching positions. Def.
Ex. K-2. There was also testimony that there were “at
least five people who have met the qualifications to be-
come a teacher and have applied for positions and have
not been hired, all blacks.” Def. Ex. K-2, at 2. Further,
there was testimony indicating that vacancies were first
posted so that substitute teachers could apply for them
before the vacancies were advertised outside the school
system, and that principals often requested that substi-
tutes be pwn | to vacancies. Def. Ex. K-3. Obvious-
ly, this hiring practice would tend to perpetuate the ef-
fects of any past discrimination in hiring substitute
teachers. We believe that this evidentiary basis meets
every test of legal sufficiency and is a broad foundation
on which the School Board was authorized and in fact re-
quired to adopt Resolution 1020. See Janowiak, 750 F.2d
at 564.
The difference between the evidence in this case and
in Janowiak is highlighted by a fact crucial to our deci-
sion in Janowiak. In that case a Minority Recruitment
Task Force and a Minority Recruitment Review Commit-
tee, both of which had been constituted by the South
Bend Board of Public Saftey to study the hiring pro-
cedures for the city’s fire department, reviewed the
department’s application and hiring procedures. Both the
63a
Task Force and the Review Committee found that the
application and testing procedures were reasonable and
not discriminatory and recommended that they be re-
tained. 750 F.2d at 558-59. Here, however, no task force,
review committee or other body ever studied the School
Corporation’s past recruitment and hiring practices and
determined that these were reasonable.
Indeed, the direct opposite is the case. The Office for
Civil Rights of HEW studied those policies and other
aspects of the operation of the school system, and con-
cluded that the School Corporation discriminated against
minority teachers on the basis of race. This conclusion
was, of course, based on more than a showing of present
statistical disparity between the percentages of minority
teachers and pupils. The OCR conducted two on-site in-
vestigations of the School Corporation and reviewed com-
plaints from individuals and organizations.
This administrative finding of past discrimination in the
recruiting and hiring of minority teachers was confirmed
in Brown v. Weinberger, 417 F. Supp. 1215 (D.D.C. 1976).
In Brown, the district court also found that the School
oer ag ag had not brought itself into compliance with
itle VI.
It was in response to the HEW and district court find-
ings, as well as in a response to the concerns of citizens,
that the Board began its consideration of minority hiring
practices that lead to the adoption of Resolution 1020.
Further, two years later the Attorney General certified
that he had investigated complaints of race discrimination
and school segregation and believed that the complaints
were meritorious. This investigation was the basis of the
Department of Justice suit that was settled by the con-
sent decree requiring the School Corporation to continue
its affirmative action hiring policies embodied in Resolu-
tion 1020. United States v. Bend Community School
Corp., No. S80-35 (N.D. Ind. Feb. 8, 1980).
We believe that the findings of past discrimination here
are clearly sufficient to support the School Corporation’s
64a
affirmative action policy, including both Resolution 1020
and the no minority layoff clause, in the face of a Title
VII challenge. See Kromnick v. School District of
Philadelphia, 739 F.2d 894, 904-06 (8d Cir. 1984), cert.
denied, 105 S. Ct. 782 (1985); Valentine v. Smith, 654 F.2d
503, 507-10 (8th Cir.) (equal protection), cert. denied, 454
U.S. 1124 (1981); see also part IV A, infra. Further, if
we felt it were necessary (which it is not because the find-
ings of past discrimination satisfy the Janowiak re-
uirements) we would not hesitate to follow the Supreme
urt’s lead and take judicial notice of the fact that teach-
ing is a “traditionally segregated job category.”!* A study
13. With respect to teaching, we mean by this that black teachers
traditionally taught in all black schools, primarily in states in which
schools were legally segregated by race. But, as noted supra, the
earliest available statistics in the record indicate that in 1963-64
the minority teaching staff in the South Bend schools amounted
to only 3.5% of the total teaching staff. Def. Ex. H.
Judicial findings of racial discrimination by public school systems
are legion. E.g., Dayton Board of Education v. Brinkman, 443
US. (1979); Columbus Board of Education v. Renick, 443 U.S.
449 (1979); Keyes v. School District No. 1, Denver, Colorado, 413
U.S. 189 (1973); North Carolina Board of Education v. Swann,
402 U.S. 48 (1971); Swann v. Charlotte-Mecklenburg Board of
Education, 402 U.S. 1 (1971); Green v. County School Board, 391
U.S. 430 (1968).
The appendices in Brown v. Weinberger, 417 F. aan 1215,
1223-24 (D.D.C. 1976) list six school districts found ineligible by
HEW for funding under an Emergency School Aid Act (Pub. L.
No. 92-318, Title VII, 86 Stat. 354 (1972), codified at 20 U.S.C.
§ 1601 et seq., repealed by Pub. L. No. 95-561, § 601(bX2), 92 Stat.
2268 (1978)), 26 school districts (including South Bend) found by
HEW to be in violation of Title VI, and 14 school districts under
investigation for possible violations of Title VI. The Chern
in Adams v. Richardson, 356 F. Supp. 92, 100-02 (D.D.C.), affd
as modified, 480 F.2d 1159 (D.C. Cir. 1978) (en banc) (per curiam),
a case similar to Brown, list ten states whose higher education
programs were found by HEW to violate Title VI, 85 school
districts with one or more schools of substantially disproportionate
racial composition, contrary to Title VI, and 42 school districts
found by HEW to be in presumptive violation of the Supreme
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vided that if no agreement on a recommendation could
be reached, the first thirty-five layoffs for the 1984-85
school year would be governed by the language of the
no minority layoff provision. If further layoffs were
necessary, they would be governed by the following lan-
guage.
The percentage of minority leiinitine unit employees
employed during a year in which staff reductions are
implemented shall reflect the same percentage of
minority bargaining unit employees employed during
the preceding year. This percentage shall be deter-
mined by dividing the number of minority bargain-
ing unit employees by the total number of bargain-
ing unit employees in the Corporation. The computa-
tion shall be mutually determined by the Association
and the Corporation on or before February 1 of each
year.
Id. In January 1984 the committee recommended the
adoption of the following substitute clause:
Affirmative action is defined as maintaining the same
percentage of minority teachers in each minority
classification throughout a period of reduction in force
as were e — prior to such a reduction. For the
purposes of this contract, minority shall be defined
as members of the Black and Hispanic Races.
593 F. Supp. at 1227-28 (quoting “Final Report of the
Minority Language Committee” (Pl. Ex. 12) p. 17 § 5;
App. 45).
In these circumstances the District Court was correct
to reject the plaintiffs’ characterization of the provision
as an ongoing racial-balance-maintenance measure. 593 F’.
Supp. at 1232. The provision was necessarily temporary
because it was incorporated in a collective bargaining
agreement of limited duration. See Kromnick v. School
District of Philadelphia, 739 F.2d 894, 911-12 (8d Cir.
1984), cert. denied, 105 S. Ct. 782 (1985). Further, the
changes proposed by the Minority Language Committee,
indeed the constitution of the committee itself, is strong
—
68a
evidence that the provision was always meant to be
temporary.
Nor did the provision require the discharge of white
teachers and their replacement by new black hires, or
create an absolute bar to the advancement of the white
teachers. It did require that some white teachers be laid
off who would not otherwise have been laid off. The forty-
eight white teachers who would not have been laid off
but for the provision made up 3.33% of the School Cor-
poration’s (before layoff) teaching staff of 1443 (and 3.77%
of the after-layoff staff of 1274). Those who were laid off
were at the head of the queue for rehire. And as the
plaintiffs admit, all but twenty of the teachers originally
laid off had been recalled by August 1984. 593 F. Supp.
at 1231-32.15 The provision did not affect the hiring or
promotion of whites, or of any teachers.
Furthermore, the district court found that testimony at
trial established that the provision was designed to do
nothing more than prevent the loss of the hiring gains
that had been achieved since the Board had resolved to
increase the percentage of its black teachers. 593 F. Supp.
at 1232. This finding is not clearly erroneous. As the dis-
trict court noted, in a period of “declining staff and stu-
dent enrollment, layoff provisions are the only means of
retaining any progress made in hiring procedures.” 593
F. Supp. at 1232.
The plaintiffs argue that two alternative methods could
have preserved this gain and show that the provision un-
necessarily trammel their rights. They claim that layoffs
could have been effected pursuant to the rest of the
seniority system, with black teachers recalled first, or that
layoffs could have been made proportionally, as under the
ew contract and in the form approved in Wygant v.
Jackson Board of Education, 746 F.2d 1152 (6th Cir.
15 At oral argument plaintiffs’ counsel stated that all but five of
the teachers had been recalled.
69a
1984), cert. granted, 105 S. Ct. 2015 (1985) (No. 84-1340).16
Layoffs pursuant to the rest of the seniority system would
have reduced the percentage of black teachers from 13.0%
to 10.8%, barely higher than the percentage of black
teachers on the staff at the time Sonsleiten 1020 was
adopted (10.4%). 593 F. Supp. at 1232. Layoffs under a
proportionate system would have kept the percentage of
black teachers at 13.0%. But Resolution 1020 also stated
that it was a goal of the School Corporation to increase
the percentage of minority employees every year, and
Wygant does not hold that greater than proportionate
layoffs are impermissible. In light of these factors we can-
not say the no minority layoff provision trammeled, much
less unnecessarily trammeled, the interests of the white
teachers merely because layoffs pursuant to it raised the
percentages of black teachers on the staff from 13.0% to
13.8%.
We conclude that the no minority layoff provision does
not unnecessarily trammel the interests of the white
teachers. And because the provision satisfies both prongs
of the Weber test, it does not violate Title VII.
C.
_ The plaintiffs argue that Firefighters Local Union No.
1784 v. Stotts, _._. ~-U.S. ___, 104 S. Ct. 2576 (1984),
16 The Supreme Court granted certiorari in Wygant to consider
whether the Constitution allows racial preferences for teacher
layoffs adopted by a public employer, in the absence of findings
of past discrimination, that are based solely upon the disparity be-
tween respective percentages of minority faculty members and
students. See 53 U.S.L.W. (subject matter summary of case
recently docketed); Deveraux v. Geary, 765 F.2d 268, 275 n.6 (1st
Cir. 1985). Here, as we discuss in parts III A and IV A, there
are adequate findings of past discrimination, and neither those find-
ings nor the layoff provision was based solely on a disparity in
the respective percentages of minority faculty members and
students. Thus the Supreme Court’s grant of certiorari in Wygant
should not affect our reliance on the Sixth Circuit’s decision or
our result in this case.
70a
shows that the no minority layoff provision violates Title
VII. In Stotts, the Supreme Court held that Title VII,
and in particular sections 703(h) and 706(g), 42 U.S. C.
§§ 2000e-2(h) & 2000e-5(g), barred a district court from
modifying a consent decree over one party’s objection and
ordering that layoffs be made so as to retain black hires
who had been the beneficiaries of that prior remedial con-
sent decree. The prior decree did not itself limit or modify
preexisting bona fide seniority rights. See Deverauzx v.
Geary, 765 F.2d 268, 272 (1st Cir. 1985); Vanguards of
Cleomendh v. City of Cleveland, 753 F.2d 479, 486-87 (6th
Cir. 1985); Kromnick v. School District of Philadel hia,
739 F.2d at 911; Grann v. City of Madison, 738 F 786,
795 n.5 (7th Cir.), cert. denied, 105 S. Ct. 296 (1984); see
also 593 F. Supp. at 1230.
Stotts is distinguishable on several grounds. First, sec-
tion 703(h), on which the Court relied and which protects
bona fide seniority systems that are not the result of an
intent to discriminate, is not applicable here. The union
and the School ade og ap ee the [no minor-
ity layoff provision] . . . in their ctive bargaining con-
tract, thereby agreeing that certain prerequisites of
seniority are to be qualified by that policy.” Kromnick
v. School District of Philadelphia, 739 F 2d at 911. Unlike
Stotts, there is no override of a bona fide seniority plan.
Deveraux v. Geary, 765 F.2d at 273; EEOC v. Local 638,
753 F.2d 1172, 1186 (2d Cir. 1985); Wygant v. Jackson
Board of Education, 746 F.2d at 1157-59; Kromnick v.
School District of Philadelphia, 739 F.2d at 911. Second,
Stotts concerned a court-imposed affirmative action plan.
Indeed, the no minority layoff plan there was imposed over
the objections of the city. The Court explicitly refused
to decide whether the pi would have been unable to
voluntarily adopt such a provision. Stotts, ____ U.S. at
104 S. Ct. at 2590; Turner v. Orr, 759 F.2d 817,
824-25 (11th Cir. 1985); Vanguards of Cleveland v. City
of Cleveland, 753 F.2d 479, 486 (6th Cir. 1985); Wygant
v. Jackson Board of Education, 746 F.2d at 1158. Third,
Stotts did not even purport to, much less actually, over-
7la
rule Weber. Deveraux v. Geary, 765 F.2d at 274; Van-
guards of Cleveland v. City of Cleveland, 753 F.2d at
487-88 & n.7; Wygant v. Jackson Board of Education, 746
F.2d at 1158. All the circuits that have considered the
issue have concluded that Weber remains good law.
Deveraux v. Geary, 765 F.2d at 274-75 (First Circuit deci-
sion collecting cases from Second, Third, Sixth, Seventh
and Ninth Circuits); see also Turner v. Orr, 759 F.2d at
825 (Eleventh Circuit). Finally, we note that in essence
Stotts was a case about a district court’s power to amend
a consent decree over the objections of one of the par-
ties. Stotts, __. U.S. at ___, 105 S. Ct. at 2594-95
(Stevens, J. concurring in the judgment); see Deveraux
v. Geary, 765 F.2d at 272-73; Grann v. City of Madison,
738 F.2d 795 n.5. Therefore, we agree with the district
court that Stotts does not decide this case. 593 F. Supp.
at 1230-31 & n.4. Indeed, the plaintiffs finally concede as
much. Pl. Br. at 17.17
We conclude that the no minority layoff provision of the
1980-83 Agreement does not violate Title VII.
IV.
Because the no minority layoff provision does not violate
Title VII, we must consider the plaintiffs’ claim that it
violates the Equal Protection Clause. The Supreme Court
has considered the merits of constitutional challenges to
17 An argument could be made that if Stotts decides this case
it compels affirmance rather than reversal. Stotts does not over-
rule Weber, and we have determined that the provision in ques-
tion here satisfies the Weber test and so does not violate Title
VII. The provision was incorporated in the collective bargaining
agreement and became effectively part of the seniority plan of the
School Corporation’s teachers. Because it is permissible under Title
VII it is presumably protected by section 703(h). If the district
court here had ordered the white teachers reinstated it would have
done so over the School Corporation’s objections, and been in a
position analogous to that of the district court in Stotts, whose
action the Supreme Court held to be prohibited by Section 706(g).
72a
affirmative action plans in Regents of the University of
California v. Bakke, 488 U.S. 265 (1978), and Fullilove
v. Klutznick, 448 U.S. 448 (1980). In neither case did any
opinion command the assent of a majority of the Court.
Thus the Court’s opinions do not provide the kind of
guidance in the constitutional area that its decision in
Weber does in analyzing Title VII challenges. Indeed, this
court has recently stated:
After reviewing the eleven separate opinions filed in
these two plurality decisions, this court agrees with
the Sixth Circuit that ‘“‘the only clear consensus to
be garnered from these various statements is that
in any affirmative action program (1) some govern-
mental interest must be served, and (2) the program
must somehow be directed toward the achievement
of that objective.”
Janowiak, 750 F.2d at 563 (quoting Bratton v. City of
Detroit, 704 F.2d 878, 885 (6th Cir.), modified in other
respects, 712 F.2d 222 (6th Cir. 1983), cert. ied, 104 S.
Ct. 703 (1984)); see Valentine v. Smith, 654 F.2d 503, 509
nn.11 & 12 (8th Cir.) (detailing the various positions of
the Justices on necessary finding of past discrimination
and appropriate standard of review), cert. denied, 454 US.
1124 (1981); United States v. City of Miami, 614 F.2d
1322, 1337 (5th Cir. 1980) (‘In over one hundred and fifty
pages of United States Reports [that make up the Bakke
opinions], the Justices have told us mainly that they have
agreed to disagree.’’), rehearing en banc, 664 F.2d 435
(5th Cir. 1981). But see infra at 32-33 & n.19.
A.
We first examine whether the no minority layoff clause
serves a governmental interest. There is some uncertainty
as to whether the governmental interest in remedying the
effects of past societal discrimination is a compelling in-
terest. See Valentine v. Smith, 654 F.2d at 508 n.5 (iden-
tifying — To of Justices in Fullilove and Bakke opin-
ions). There is not, however, any doubt that this interest
73a
is substantial and important enough to support affirmative
action plans. Fullilove, 448 U.S. at 453 (Burger, C.J. opin-
ion, joined by Powell and White, JJ.); id. at 519-20
shall, J. concurring in the judgment, joined by Brennan
and Blackmun, JJ.); Bakke, 438 U.S. at 307 (Powell, J.
re id. at 362 (Brennan, Marshall, Blackmun and
ite, JJ. opinion); Janowiak, 750 F.2d at 563. In order
to show that the affirmative action plan serves the sub-
stantial and important interest in remedying the effects
of discrimination, there must -be a finding of past discrim-
ination. Janowiak, 750 F.2d at 563-64; Valentine v. Smith,
654 F.2d at 508. Once again, the issue before us is
whether the findings of past discrimination are sufficient.
In Janowiak, we held that the “failure to put forward
any evidence other than evidence of statistical disparity
and [defendants’] own admissions that the hiring practices
appeared reasonably and non-discriminatory,” 750 F.2d at
564, was insufficient to constitute a finding of discrimi-
nation to 5 saa summary judgment for defendants as
a matter of law on a constitutional challenge to their af-
firmative action plan. But the evidence here was not a
mere present statistical disparity coupled with a finding
that the hiring procedures were reasonable and non-dis-
criminatory. See supra part III A. And, as previously
noted, the district court fo und for defendants not on sum-
mary judgment but after an evidentiary hearing and a
trial. We believe the findings were fully adequate.
Our conclusion that the findings here are sufficient to
enable the no minority layoff provision to withstand an
Equal Protection challenge is supported by Kromnick v.
School District of Philadelphia, 739 F.2d 894 (3d Cir.
1984), cert. denied, 105 S. Ct. 782 (1985), and Valentine
v. Smith, 654 F.2d 503 (8th Cir.), cert. denied, 454 U.S.
1124 (1981).
Valentine is on all fours with this case. The plaintiff,
Bonnie Valentine, alleged that the Arkansas State Univer-
sity had, in violation of the Equal Protection Clause of
the Fourteenth Amendment, refused to hire her because
74a
she was white.!® The Eighth Circuit acknowledged that
Valentine had been rejected because of her race, but af-
firmed a judgment for the university because ASU hired
the black applicant pursuant to its affirmative action plan.
Valentine, 654 F.2d at 507-11. The court required ASU
to predicate its affirmative action plan on a finding of past
discrimination. 654 F.2d at 508. (We relied on Valentine
for this requirement in Janowiak, 750 F.2d at 564.) The
Office of Civil Rights of HEW had conducted a compliance
review of ASU under Title VI in 1968. In. January 1969
HEW informed the governor of Arkansas that the state’s
universities, including ASU, were not in compliance with
Title VI. Voluntary compliance was not achieved, and in
February 1973 the District Court for the District of Co-
lumbia ordered HEW to commence enforcement pro-
ceedings against ASU so as to bring the university into
compliance with Title VI. Adams v. Richardson, 356 F.
Supp. 92 (D.D.C.), affd as modified, 480 F.2d 1159 (D.C.
Cir. 1973) (en banc) (per curiam). ASU finally submitted
a plan late in 1975 in response to the findings and the
action taken by the OCR. 654 F.2d at 505-06, 508-09. The
Eigtith Circuit held that these findings were adequate:
There is no consensus on what findings of past dis-
crimination justify remedial affirmative action. Never-
theless, the issue of whether the findings of past dis-
crimination made by the District of Columbia District
Court and HEW were adequate to justify a race-
conscious remedy is not even close. Findings of
previous statutory violations of title VI by a district
18 Valentine, a white, had taught at ASU from 1967 until 1974,
when she resigned for | seroma reasons. Her replacement, the only
black on the business faculty, resigned in 1976 and Valentine ap-
plied for her former position. She was rated the most qualified
candidate by the faculty search committee and the dean of the
college of business administration. The affirmative action officer
at ASU removed the names of all white candidates from the list,
including Valentine’s, and one of the two black applicants recom-
mended by the affirmative action officer was hired by ASU. Valen-
tine, 654 F.2d at 506-07.
75a
court and OCR justify the use of some type of race-
conscious remedy by a state to serve its constitu-
tionally permissible objective of remedying past dis-
crimination.
Valentine, 654 F.2d at 509 (footnote omitted).
Kromnick v. School District of Philadelphia arose from
a Title VI (and hence constitutional-standard-invoking)
challenge to a policy that sought to maintain a faculty
ratio at the relevant schools of between 75% and 125%
of the system-wide proportion of black and white teachers.
From 1978 to 1982 the Office for Civil Rights of HEW
required the school district to maintain this policy in or-
der to be eligible for federal funds under an Emergency
School Aid Act (Pub. L. No. 89-10, Title VI, 79 Stat. 55
(1965), Pub. L. No. 95-561, Title VI, 92 Stat. 2252 (1978),
codified at 20 U.S.C. § 3191-3207, repealed by Pub. L.
No. 97-35, § 587(a), 95 Stat. 480 (1981) effective Oct. 1,
1982). In 1982 the OCR for the Department of Education,
which had assumed compliance responsibility, found the
district in compliance with its regulations and no longer
required the proportionality policy. The school district con-
deal the policy voluntarily.. 739 F.2d at 897-900.
The district court held that there was inadequate evi-
dence that the 75%-125% policy continued to serve a
remedial purpose. The Third Circuit reversed:
The district court apparently believed that once the
School District was relieved by the OCR in 1982 of
the obligation to maintain the 75%-125% policy, its
action in continuing that policy ceased to be remedial.
The district court ignored the 15 year history of state
proceedings against the School District, which are “a
pending in state court, directed to effecting inte
tion of the Philadelphia public school system.
long history of Philadelphia public schools as “racially
identifiable” as either “white schools” or “black
schools” cannot be gainsaid. As early as 1969 the
School District was operating under a consent decree
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77a
v. Metropolitan Dade County, 723 F.2d 846, 851-52 (11th
Cir.), cert. denied, 105 S. Ct. 220 (1984); Bratton v. City
of Detroit, 704 F.2d 878, 885-87 (6th Cir.), modified in
“cher respects, 722 F.2d 222 (6th Cir. 1983), cert. denied,
104 S. Ct. 703 (1984); Valentine v. Smith, 654 F.2d at 510:
see also Paradise v. Prescott, ___ F. 94 (slip op. at
5784-86 (llth Cir. 1985); Wy gant v. Jackson Board of
Education, 746 F.2d 1152, 1157 (6th Cir. 1984), cert.
granted, 105 S. Ct. 2015 (1985); United States v. City of
Alexandria, 614 F.2d 1358, 1366 (5th Cir. 1980).
We agree with the recent statement of the Eleventh
Circuit that “the differences between the various ap-
proaches are more of phraseology than of substance.”’
Paradise v. Prescott, F.2d : (slip op. at
5786) (11th Cir. 1985).4° In any event, we need not choose
18 The Eighth Circuit, for example, held in Valentine v. Smith
that the plan must be “substantially related” to the objective of
remedying past discrimination. 654 F.2d at 510. The court then
defined “substantially related:’
A race-conscious affirmative action program is substantially
related to remedying past discrimination if (1) its implemen-
tation results or is Ms designed to result in the hiring of a suffi-
cient number of minority applicants so that the racial balance
of the employer’s work force approximates roughly, but does
not unreasonably exceed, the balance that would have been
achieved absent the past discrimination; (2) the plan endures
only so lon; bap is reasonably necessary to achieve its legitimate
goals; (3) the plan does not result in — unqualified appli-
cants; and (4) the onal does not completely bar whites from
all vacancies or otherwise unnecessarily or invidiously tram-
mel their interests.
Id. Valentine has been cited approvingly by a number of circuits
in this context. Palmer v. District Board of Trustees, 748 F.2d
595, 600 n.14 (1ith Cir. 1984); Wygant v. Jackson Board of Educa-
tion, 746 F =" 1152, 1157 (6th Cir. 1984), cert. granted, 105 S. Ct.
2015 (1985); Morgan v. O’Bryant, 671 F.2d 23, 98 (ist Cir.), cert.
denied, 459 U.S. 827 & 881 (1982). Indeed, in Morgan the First
Circuit stated that the First, Fifth, Sixth and Eighth Circuits were
“substantially in accord” on the proper test to be applied. Morgan
v. O’Bryant, 671 F.2d at 28.
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79a
of Resolution 1020, and so would survive scrutiny under
any of these standards.
First, the provision did not stigmatize any of the white
teachers who were laid off. The layoff was not related
to merit but was determined by the provision and other
aspects of seniority. Thus the teachers who were laid off
were not stamped as inferior. Bakke, 438 U.S. at 371
(Brennan, White, Marshall and Blackmun, JJ. opinion);
Fullilove, 448 U.S. at 484 (Burger, C.J. opinion); Wygant
v. Jackson Board of Education, 546 F. Supp. 1195, 1202
(E.D. Mich. 1982), aff'd, 746 F.2d 1152 (6th Gr 1984), cert.
granted, 105 S. Ct. 2015 (1985). Indeed, the teachers laid
off are no more stigmatized than any employees laid off
for lack of seniority under any other contractual seniority
system.?°
Second, the provision does not require the retention of
unqualified teachers. Bratton v. City of Detroit, 704 F.2d
at 891; Valentine v. Smith, 654 F.2d at 511; United States
v. City of Miami, 614 F.2d 1322, 1340 (5th Cir. 1980);
a v. Jackson Board of Education, 546 F. Supp. at
1202.
Third, the provision did not require the layoff of all
white teachers. The forty-eight teachers who would not
have been laid off but for the provision amounted to 3.77%
of the faculty of 1274. Thus, the provision did not in-
vidiously tramme! the interests of the white teachers or
act as an absolute bar to their employment. Fullilove, 448
20 As a general matter, though we need not rely on it here, the
self-esteem of whites is not endangered by attempts to remed
past acts unfairly militating in their favor. The B sag ve of suc
programs is to aid blacks, not to exclude whites. socially domi-
nant white majority is not being subject to what amounts to con-
stitutionally invidious stigma. Bratton v. City of Detroit, 704 F.2d
878, 891 (6th Cir.), modified in other respects, 712 F.2d 222 (6th
Cir. 1983), cert. denied, 104 S. Ct. 703 (1984); see T. Nagel Equal
Treatment and Compensatory Discrimination, 2 PHIL. & PUB.
AFF. ___ (1973), reprinted in EQUALITY AND PREFERENTIAL
TREATMENT 3 (Cohen, Nagel & Scanlon, eds. 1977).
80a
U.S. at 484; Valentine v. Smith, 654 F.2d at 511; United
States v. City of Miami, 614 F.2d at 1340; Wygant v.
Jackson Board of Education, 546 F. Supp. at 1202; see
Weber, 443 U.S. at 208-09. We agree with the district
court in Wygant that it is difficult to conceive how (ab-
sent a claimed breach of the duty of fair representation)
a plan which was voluntarily adopted by the membership
of the NEA-South Bend, a majority of whom were white,
could invidiously trammel their interests. 546 F. Supp. at
1202. In fact, this factor is one of the most decisive in
validating the challenged plan.
Fourth, the provision was a temporary measure not
designed to maintain a particular racial balance in the
teaching staff. See supra part III B. Bratton v. City of
Detroit, 704 F.2d at 892; Valentine v. Smith, 654 F.2d
at 511; United States v. City of Miami, 614 F.2d at 1340.
The teachers’ most serious claim is that a less burden-
some layoff procedure would have been possible, and so
the provision is not reasonable. It is true that considered
in the abstract it would have been possible to lay off by
seniority excluding the provision and rehire black teachers
first, or to engage in proportional layoffs (as is now the
case under the revised layoff provision). But the provi-
sion was designed to further the goals of Resolution 1020
and prevent the loss of the gains that had been made.
If layoffs had been effected without the provision, more
than one-quarter (27.3%) of the school district’s black
teachers would have been laid off, and almost one-third
(32.9%) of the laid off teachers would have been black.
Def. Ex. F-1. The reason for this is the usual and distress-
ing one that a disproportionate percentage of black
teachers had been only recently hired. Without the provi-
sion the percentage of black teachers would have dropped
from 13.0% to 10.8%, almost back to what it had been when
Resolution 1020 was adopted. At the same time the per-
centage of black students had risen from 22.1% to 25.8%.
Def. Ex. E-1. The plaintiffs apparently concede that a
8la
straight percentage layoff provision would have been
reasonable. See Pl. Br. at 14. Layoffs pursuant to such
a provision would have kept the percentage of black
teachers at 13.0%, while the actual layoffs pursuant to
the no minority layoff provision increased the percentage
to 13.8%. We do not believe this minor difference makes
the provision constitutionally unreasonable. This conclu-
sion rests on the fact that Resolution 1020 required that
the School Corporation strive to exceed each year the
minority employment oe of the previous year. Cf.
Vanguards of Cleveland v. City of Cleveland, 753 F.2d
479, 485 (6th Cir. 1985) (rejecting as “entirely too spec-
ulative” the argument that a district court may not ap-
prove a consent decree adopting an affirmative action plan
“simply because other measures may, over the course of
future years, achieve the same result” (emphasis in
original)); Kromnick v. School District of Philadelphia, 739
F.2d at 907 (“No Supreme Court opinion has required a
competent agency to undergo a convassing of alternatives
as a constitutional prerequisite for a legitimate remedial
action. The various opinions in Fullilove either express-
ly reject any requirement that the remedy chosen be the
least restrictive, or adopt a far less rigorous standard.”
(citations omitted)).
For all of these reasons we believe that the provision
sufficiently furthered the School Corporation’s legitimate
objective.?! Because it was also supported by adequate
21 The dissent’s reliance on Donovan v. Illinois Education Ass’n,
667 F.2d 638 (7th Cir. 1982), and Oliver v. Kalamazoo Board of
Education, 706 F.2d 757 (6th Cir. 1983) is misplaced. Donovan was
a labor case in which we found a violation of section 401(e) of the
Labor-Management Reporting and Disclosure Act of 1959, 29
U.S.C. § 481(e). That “case [did] not involve the legality of affir-
mative action. . . . Whatever may be the status of affirmative ac-
tion under civil rights statutes or the equal protection clause of
the Fourteenth Amendment, those laws [were] not involved in
[that] litigation.” Donor .», 667 F.2d at 640. Anything from
Donovan on which the dissent would rely today is mere dicta.
(Footnote continued on following page)
82a
findings of discrimination, it was valid and survives con-
stitutional challenge.
¥;
We now turn to the plaintiffs’ state law challenges to
the no minority layoff provision. Having found no merit
to the teachers’ federal claims, the district court declined
to exercise pendent jurisdiction over the state claims.22
The district court correctly noted that the decision
whether to entertain the state law claims was discre-
tionary, citing United Mine Workers v. Gibbs, 383 U.S.
715, 726 (1966), even after a trial on the merits in which
the federal claim has not been proven, citing Delcambre
v. Delcambre, 635 F.2d 407 (5th Cir. 1981) (per curiam).
The court then reasoned as follows:
The crux of the state claims in this case is the im-
pact of Article XXIII, § 9 on the plaintiffs’ seniority
rights under the Indiana Teacher Tenure Act. The
question of whether an affirmative action plan
violates the Teacher Tenure Act has not been ad-
dressed by Indiana courts. Therefore, where, as here,
the proper resolution of the state law question is
21 continued
Oliver involved a court-imposed layoff system that overrode a bona
fide seniority system over the objections of one of the parties to
the litigation. The court explicitly distinguished voluntary affir-
mative action plans. See Oliver, 706 F.2d at 763 n.6 & 765 n.9.
In Wygant v. Jackson Board of Education, which the dissent con-
cedes supports our position, the Sixth Circuit stated that Oliver
simply anticipated Stotts. Wygant, 746 F.2d at 1157-59. Oliver, like
=— was distinguishable from Wygant, and is from this case as
well.
22 The plaintiffs’ state-law claims below were, essentially, chal-
lenges to “(1) the validity of the School Board Meeting of June
1 and 2, 1982; (2) the Board’s decision with respect to seniority
claims advanced by plaintiffs Jan Meiss, Jeanne Reabarger,
Patricia Toth and Bonita Ujdak; and, (3) the ig 7 of the ‘no
minority layoff clause under the Teacher Tenure Act, I.C. § 20-6.1-4-1
et seg.” 593 F.2d at 1232-33.
83a
unclear, a federal court may properly decline to ad-
dress the pendent issues. Any judgment by this court
on this question would be purely advisory and of no
precedential value to the state court. 3
593 F. Supp. at 1233 (citation omitted). On appeal plain-
tiffs merely restate their argument concerning the merits
of their state claims. The correct standard of review is
abuse of discretion, however, not error on the merits. We
do not believe the district court abused its discretion in
declining to exercise pendent jurisdiction over the state
claims and dismissing them without prejudice. Gibbs, 383
U.S. at 726; Delcambre v. Delcambre, 635 F.2d at 408.
An affirmative action plan is a seri
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