# Appendix — South Bend Community School Corp. v. Britton

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0789%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1987
- **Citation:** 484 U.S. 925

## Text

EDITOR'S NOTE

PAGES WERE
FILMING.
BE OBTAINED,

THE FOLLOWING
AT THE TIME OF
BETTER COPY CAN
WILL BE ISSUED,

POOR
IF AND WHEN A

HARD COPY

A NEW FICHE

preme Uc

, mops i 5 Me =

FILED

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 —— — 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
(Footnote continued on following page)

PUBLISHER'S NOTE:

THE FOLLOWING PAGE IS UNAVAILABLE
FOR FILMING:
G5a

PUBLISHER'S NOTE:

THE FOLLOWING PAGE IS UNAVAILABLE
FOR FILMING:
6G~

67a

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

PUBLISHER'S NOTE:

THE FOLLOWING PAGE IS UNAVATLABLE

FOR FILMING:
DVGa

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.

(Footnote continued on following page)

PUBLISHER'S NOTE:

THE FOLLOWING PAGE IS UNAVAILABLE
FOR FILMING:
2G a

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 serious measure. It must
not be entered into without careful consideration of the
need for and the burdens of the plan. But the plan in-
volved here, Article XXIII, Section 9 of the 1980-83 col-
lective bargaining agreement between the South Bend
School Corporation and the NEA-South Bend, was care-
fully considered and reasonable under the circumstances.
We have concluded that it did not violate either Title VII
or the Equal Protection Clause of the Fourteenth Amend-
ment. We have also concluded that the district court did
not abuse its discretion in dismissing the pendent state
claims. For the reasons given above, the order of the dis-
trict court is AFFIRMED.

84a

POSNER, Circuit Judge, dissenting. The public school
system 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.
The school system was carrying out a policy of not lay-
ing off any blacks. This was racially discriminatory state
action and the question is whether it denied the 48 white
teachers the equal protection of the laws, in violation of
the Fourteenth Amendment.

Discrimination against whites, when connected in some
way, however tenuously, to the history of discrimination
by whites, is called “affirmative action,” or, less euphemis-
tically, “reverse discrimination.” The debate over its
legality is bounded by two positions. The first is that, like
discrimination against members of minority groups, it is
illegal per se; that since rights against discrimination are
personal rather than group rights, as emphasized in Con-
necticut v. Teal, 457 tS. 440, 453-54 (1982), membership
in a racial group confers no entitlements; and that to hold
that there is good racial discrimination and bad racial dis-
crimination and that only the bad is unlawful would make
the antidiscrimination principle too ag a too em-
pirical, too subject to judicial caprice, and at once too
heedless of the legitimate rights of white people and too
condescending toward black people. The second position
is that reverse discrimination is permissible if reasonable
in all the circumstances; that the law should be capable
of differentiating among types of discrimination that differ
in history, motivation, and consequence; and that inflexi-
ble commitment tothe idea of a color-blind Constitution
would prevent black people from overcoming the effects
of centuries of severe discrimination.

The choice between these positions is as contentious as
any issue facing the nation. The Supreme Court has
avoided it by steering a middle course, thus obliging us
to do likewise. The Court has refused to condemn reverse
discrimination outright, as discrimination against blacks
and other minority groups is condemned. See, e.g., Fulli-
love v. Klutznick, 448 U.S. 448, 482-83 (1980). But it has

85a

not treated it as permissively as purely “economic” dis-
crimination, such as exempting individuals from a personal
property tax, is treated. Compare id. at 519 (Marshall,
J., concurring), and Regents of, University of California
v. Bakke, 488 U.S. 265, 358-62 (1978) (separate opinion of
Brennan, J.), with Lehnhausen v. Lake Shore Auto Parts
Co., 410 U.S. 356, 359-60 (1973). All of the Justices seem
troubled by state action that draws racial lines, even if
the benefited group is a traditional target, rather than
a practitioner or a beneficiary, of discrimination. Yet all
seem also to believe that reverse discrimination is less
vicious and less harmful than discrimination against the
traditionally discriminated against. For even the severest
critics of reverse discrimination do not object to programs
for recruiting or training blacks and other minority per-
sons, though such programs create a racial preference, and
though a program for recruiting or training whites as such
would be viewed with the gravest suspicion.

So in evaluating what South Bend has done to these
white teachers we are not permitted by our judicial
superiors either to condemn it out of hand as illegal dis-
crimination because its motivation was racial or to evalu-
ate it under a standard of reasonableness whereby any-
thing goes that is not clearly arbitrary. We have to look
at it critically—to give it, in Justice Brennan’s words,
“strict and searching” review, Regents of University of
California v. Bakke, supra, 438 U.S. at 361-62 (separate
opinion)—and to adjudge it a denial of the equal protec-
tion of the laws if we cannot say that it is a well-tailored
means to a clearly lawful end.

There are two possible ends to which the laying off of
these teachers might conceivably be a proper means. The
first is to remedy a violation of law. Suppose South Bend
had formerly refused to hire black teachers, and tq cor-
rect the violation it not only hired blacks but jumped them
ahead of some white teachers on the seniority roster. This
remedy could be defended on the ground that, but for
the city’s past discrimination, the black teachers whom
it had hired recently would have been hired earlier and

_—eeadalia

86a

would thus have accumulated as much seniority as white
teachers—though the city would have to prove that the
particular black teachers given superseniority had in fact,
aS my example assumes, been victims of the city’s past
discrimination. See Firefighters. Local Union No. 1784 v.
Stotts, 104 S. Ct. 2576, 2588 (1984). Applied to this case,
the defense would fail for two reasons. There is no evi-
dence that the particular black teachers who received
superseniority had ever been discriminated against by the
South Bend school system. And the city put oak the black
teachers ahead of all the white teachers, thus giving them
more seniority than it is plausible to imagine they would
have accumulated had there never been discrimination
against blacks—giving them, in fact, what they could have
expected to get only in a world where whites were sys-
tematically discriminated against.

But forget all this; for the more fundamental point is that
this is not a case that arises out of discrimination in hiring,
whether against the particular black teachers who kept their
jobs when more senior whites were laid off or against any
other black candidates for teaching jobs in the South Bend
public schools. South Bend used to discriminate against
black teachers, it is true, but the discrimination lay in
assigning them to schools with a predominantly black stu-
dent population, not in refusing to hire them. The scanty
references in the record to “recruitment” are to the fact
that until the 1970s the school board did not make aggres-
sive efforts to recruit blacks. It did not make aggressive
efforts to recruit anyone. Affirmative action in hiring is
sometimes permitted, but it is not mandatory, and its ab-

snplieuna: Of such refusal I can find no indication in the
record except an unelaborated, unsubstantiated, unsworn
statement made by a black community activist at a public
meeting of the school board. My brethren describe this
statement as “testimony”; it is not testimony, and there
is nothing else.

My brethren may think that any school system that
segregated blacks and whites must have discriminated
against blacks in hiring too; but actually there need be

87a

no correlation between the two forms of discrimination.
Indeed, with complete segregation of whites and blacks,
and identical student-teacher ratios in black and white
schools, the ratio of black to white teachers would be
equal to the ratio of black to white students—which as
a matter of fact is the school board’s goal in this case.
There might be no hiring discrimination even if, with
segregated schools, the ratio of black to white teachers
was lower than the ratio of black to white students, as
apparently it has been throughout South Bend’s history.
Maybe there were fewer qualified black teachers than
white teachers; the school system therefore hired fewer
black teachers relative to black students than white teachers
relative to white students; so the student-teacher ratio
was higher in the black than in the white schools. There
would, if the schools were racially segregated, be discrimi-
nation, but not in hiring—a distinction fundamental to this
case..

The rational remedy for the discrimination in which
South Bend engaged—for school segregation as distinct
from refusal to hire qualified black teachers—is not super-
seniority for black teachers but equal assignments for
black teachers. It is therefore not surprising that the con-
sent decree entered in 1980 contained no provision for
superseniority. The defendants’ counsel conceded at oral
argument that no competent body had ever made a find-
ing that the school board had turned down a qualified
black applicant for a teaching job. I do not find this im-
portant concession remarked in the majority opinion.

Rather than discriminating against black teachers in hir-
ing, South Bend has discriminated in their favor since
before the consent decree was signed. This is a more per-
tinent fact than what Indiana did to blacks when it was
a territory, or before the Civil War, or even in 1949.
Whatever its past failure in the area of aggressive re-
cruiting of blacks, by 1978 South Bend (we were told at
argument) was hiring three times the fraction of black ap-
plicants for teaching jobs as of white applicants. True, the
fraction of black teachers was not yet so high as the frac-

88a

tion of black students, but that does not prove discrimina-
tion, any more than the ratio of the aprpre 4 of black
teachers (7 percent) to the percentage of black students
(16 percent) in 1968 proved discrimination—in hiring. The
proper comparison is not between the percentages of black
teachers and black students, any more than the ratio be-
tween the percentage of black employees of soft-drink
vendors and the percentage of soft-drink buyers who are
black would be relevant in a suit charging the vendors
with discrimination. The proper comparison is between the
number of biack teachers hired by the school district and
the number of qualified black teachers in the relevant
labor market, see Hazelwood School District v. United
States, 433 U.S. 299, 308 (1977)—a number that appears
nowhere in this record but that in the absence of evidence
is best approximated by the number of black teaching ap-
plicants. And in 1978 a black applicant had three times
the chance of being hired as a white applicant. It appears,
then, that two years before the consent decree went into
effect South Bend was hiring a larger fraction of qualified
blacks than qualified whites—and there is no evidence that
it had ever refused to hire qualified blacks. The record
will not sustain an argument that superseniority for black
teachers was necessary to eliminate a legal violation or
even keep the school board out of legal trouble, for there
is no evidence of a relevant violation, actual or arguable,
past or present. The lack of “fit” between the discrimina-
tion found and the remedy prescribed is complete, and
is not to be brushed aside by reference to the history of
school segregation in Indiana; for, as I have tried to em-
phasize, segregating the schools and refusing to hire quali-
fied black teachers are logically, and for all we know fac-
tually, distinct forms of racial discrimination.

The other ground for giving black teachers supersenior-
ity might be to preserve “role models” for the black students
in South Bend’s public schools, the theory being that
scholastic underachievement is one of the legacies of dis-
crimination against blacks. Although the defendants have
made little effort to establish this ground, I am willing

imeem

89a

to give them every benefit of the doubt and therefore con-
sider whether there is any possible basis for upholding
the grant of superseniority by reference to the need for
black role models.

At the time of the consent decree 11 percent of the
teachers in the South Bend public schools were black,
which was half the percentage of black students and was
thought to be too low. To raise this percentage it was
decided that half of the new hires should be black. By
the time the layoffs began 13 percent of the teachers were
black, and but for the grant of a Napa 4 in 1982 that
percentage would have fallen back to 11 percent because
many of the black teachers had been hired recently and
therefore had less seniority than white teachers.

It is plausible both that black teachers on average relate
better to black students than white teachers do and that
a significant presence of black teachers in a school is
necessary to legitimize educational achievement in the
minds of black students who come from educatiunally de-
prived homes. But it does not follow that every school
with black students ought to strive for the identical
percentage of black teachers at whatever cost to white
teachers. If these white teachers, who so far as appears
are neither practitioners nor beneficiaries of racial dis-
crimination and who I am sure are not the economically
most secure members of the community either, are to be
sacrificed as pawns in the struggle for racial justice
because they are, as my brethren put it, members of “the
socially dominant white majority,” there should be some
competent evidence—educational, psychological, or sociologi-
cal—that their sacrifice is necessary. Evidence, for exam-
ple, that the difference between 11 percent of the teachers
being black in a school 26 percent of whose students are
black and 13 percent of the teachers being black is educa-
tionally relevant. There is no such evidence and there are
no relevant findings of fact by the district judge, who
based decision on his earlier decision in a similar case,
the Janowiak case, which another panel of this court
reversed in a decision that my brethren are at pains to
distinguish.

90a

Even the point of comparing the percentage of teachers
who are black with the a of students whc are
black, rather than the number of black teachers with the
number of black students, is not apparent, and of course
is not explained. Comparing the number of black teachers
to the number of black students is relevant to the issue
of role models for black students because it indicates how
often a black student is likely to encounter a black
teacher. But comparing the percentage of black teachers
to the percentage of black students merely generates
paradoxes. Suppose that as a result of a sharp decline
in the number of teachers (because of layoffs), with no
decline in the number of students, the ratio of bleck
teachers to biack students fell because some black
teachers had been laid off, but the percentage of black
teachers (that is, black teachers as a percentage of all
teachers) rose because a higher fraction of white than of
black teachers had been laid off. The number of black role
models would have declined yet under the method of
calculation used by the defendants the black students
would be deemed better off. Actually they would be worse
off both because the student-teacher ratio was higher, so
that each student could expect less individual attention,
and because there would-be fewer black teachers for the
students to look up to.

Or suppose that for some reason the number of white
students in the school system increased and the number
of black teachers, black students, and white teachers re-
mained the same. The percentage of black teachers would
be the same but the percentage of black students would
be lower (because the percentage of white students would
be higher), so the ratio of the two percentages would be
higher. For example, if the number of white students in
the public schools of South Bend doubled, the percent-
age of black teachers would be roughly the same as the
percentage of black students (the latter percentage hav-
ing declined to roughly half of what it had been), and by
the defendants’ reasoning the black students would have
their full quota of role models. To be concrete, suppose

9la

we start with 9 white teachers, one black teacher, 80
white students, and 20 black students, so that the percent-
age of black teachers is 10 percentbut the percentage
of black students 20 percent, and then, we add 100 white
students. This would bring down the percentage of black
students to 10 percent, so that under the defendants’ view
the black students would now have enough black role
models, for there would be the same percentage of black
teachers as of black students. I am baffled by this logic.
The black students would have neither more black
teachers nor a higher percentage of black teachers; they
would just have more white fellow students.

The record contains what I have said is the more rele-
vant comparison—the ratio of black teachers to black
students, which ranged from 1 to 40 to 1 to 60 in the
relevant period. But the record contains no interpretation
of these ratios. I would like to know how many black
teachers the South Bend schools would have to have in
order to guarantee every black student at least two black
teachers a year, and I should like to have the opinion of
an educator or a sociologist as to whether black students
would benefit significantly from ere more role models
than that. Elever. -ercent, which is what the percentage
of black teachers in the South Bend public schools would
have been if they had not been given extra seniority, is
the approximate percentage of blacks in the nation’s
population. It is not obvious to me why a higher percent-
age is necessary to provide black students with enough
role models, even if the students happen to attend a
school where the percentage of blacks exceeds the national
average. Again I emphasize the lack of any evidence on
the point.

There is an insidious as well as arbitrary quality to “role
model” arguments that ought to make us insist that they
be backed by evidence. Supposing that black male students
need black male teachers as role models, should preference
be given to black male over black female applicants for
teaching jobs? Are whites entitled to white role models
in schools where black or Asian or Hispanic teachers are

92a

overrepresented? Must the teaching staff of every public
school in the United States reflect the racial, ethnic,
sexual, and religious composition of the student popula-
tion of the school? Should a school system assign only
black teachers to a school that has only black students?
See Morgan v. Kerrigan, 509 F.2d 580, 596 (1st Cir. 1974).
Would not the ‘“‘role model” argument, carried to an ex-
treme, carry us back to where Indiana was before 1949,
with a system of segregated schools, in which blacks at-
tended schools staffed (presumably) by black teachers? in
order to answer these heavily rhetorical questions ‘‘no”
yet accept the defendants’ role-model argument in this
case we need some evidence, and have none.

Even if the defendants had made a case for giving black
teachers some extra seniority, a policy of laying off only
white teachers is hard to describe as the equal protec-
tion of the laws, if as I assume the equal protection clause
requires careful scrutiny of discrimination directed against
any race, including the white race, though perhaps less
careful than if the grou Mucitasted inst were
smaller and less secure. The defendants’ policy amounts
to saying that every black teacher shall have more senior-
ity than any white teacher; that so far as seniority is con-
cerned the blacks shall constitute a separate and superior
caste. This seems to me a little like giving each black
citizen of South Bend two votes in elections to the school
board compared to one for whites—a discrimination that
I cannot imagine any court upholding.

The defendants’ policy has the curious effect of increas-
ing the percentage of black teachers in the public schools
of South Bend merely because economic conditions have
worsened. Suppose the South Bend schools had had to
lay off half their teachers; since no blacks could be laid
off, the percentage of blacks would have zoomed from 13
to 26 percent. The actual number of layoffs was not so
great, so that while the percentage of black teachers did
increase, the increase was only from 13 to 14 percent.
Still, laying off only whites seems a pretty weird mechan-
ism for creating more black role models. Even if the need

93a

for adequate role models required that the fraction of
teachers who are black equal the fraction of students who
are black, it does not follow that the proper means to that
goal is never to lay off a black. An alternative would be
to hire an even higher fraction of blacks. The adverse ef-
fect on the job security of whites would be less.

I am not much comforted by the point that the provi-
sion for racial preference expires with the collective bar-
gaining agreement, ar_ thus lasts only three years unless
renewed. Now as a matter of fact it has been renewed,
though only for a year. The union and the school system
are thinking of moving toward a system of racially pro-
portional layoffs, so that the fraction of black teachers in
the system would not rise because of layoffs. This would
still mean giving blacks more seniority than whites on
purely racial grounds, though not as much more as under
the 1980 agreement. So the discrimination will persist, in-
definitely perhaps, though in a somewhat milder form than
in its first four years. Collective bargaining agreements,
be it noted, almost always lapse after three years, but
no one is likely to argue that on that account unions and
employers should be free to write discriminatory provi-
sions into them.

Nor am I persuaded that since the union voted to give
the blacks superseniority, it must be okay, though my
brethren regard this point as “‘one of the most decisive
in validating the challenged pian.”

1. Under the collective bargaining arrangements be-
tween South Bend and the teachers’ union, only union
members can vote on whether to ratify a proposed col-
lective bargaining contract. A teacher who is not a
member of the union has no voice, and 28 percent of the
teachers, including some of the plaintiffs, were not
members of the union. If all the union members voted
and fewer than 70 percent of them voted for the contract,
then a minority of all the teachers voted for it. We do
not know what the vote was.

94a

2. Even the union members do not vote on particular
provisions, such as the provision that gives blacks super-
seniority; they vote the whole contract up or down. A
majority might have wanted the racial provision deleted
yet have voted for the contract because they liked the
remaining provisions or because they were fearful of |
working without a contract. This is conjecture, of course;
but the burden of justifying racial discrimination is on
those who do the discriminating, the defendants in this
case, who presented no evidence of consent by the vic-
tims of the discrimination beyond the bare fact of ratifica-
tion of the collective bargaining contract.

3. The provision on minority rights that appears in the
contract as ratified is worded differently from the provi-
sion that was in the draft of the contract submitted to
the members of the union to vote on. The record does
not contain the original wording.

4. We do not know the vote on the contract, as I said,
but it was not unanimous, and it is no answer to a charge
of racial discrimination that an electoral majority supports
it. See Alexander v. Gardner-Denver Co., 415 U.S. 36,
51-52 (1974). Suppose a majority of the black members
of the union had voted to lay off blacks first, regardless
of seniority. Would this mean that other black members
could not complain of racial discrimination? That black
nonmembers could not? My brethren say that “the teachers
were not oblivious of these possibilities [i.e., that they
might lose their jobs] when they voted for the provision.”
I would word it differently. I would say, more accurate-
ly than my brethren, that the teachers who voted for the
collective bargaining contract were, presumably, not
oblivious to the possibility that they might lose their jobs
because of the provision in the contract granting super-
seniority to blacks. We know that some of the plaintiffs
did not vote for the contract, because they were not mem-
bers of the union and therefore were ineligible to vote.
We do not know how many, if any, of the plaintiffs who
were members of the union voted for the contract and
as to those who did vote for it—if there were any plain-

95a

tiffs who did—we do not know whether they supported
superseniority for blacks or opposed it but thought that
on balance it was better to have a discriminatory contract
than to have no contract.

5. Could a teacher dissatisfied with the racial provision
in the collective bargaining agreement have filed a griev-
ance, as my brethren suggest? No. The agreement defines
a grievance as a claim “that there has been a violation,
misinterpretation or misapplication of any provision of this
Agreement.” The only remedy against a prov’sion itself
is the inadequate electoral remedy.

To take away a public employee’s job because of his
racial identity is a serious step. It ought not be taken
as lightly as it was here. This is not to say that it is the
worst form of reverse discrimination that can be imagined.
Hiring unqualified blacks in lieu of qualified whites is a
worse affront to the merit principle and to social efficien-
cy. For seniority is not a meritocratic principle, so that
laying off more senior ahead of less senior workers need
not reduce the quality of the work force, and may increase
it. But job rights are precious commodities to workers
(the Supreme Court, of course, views tenure, which these
plaintiffs had, as “property” within the meaning of the
due process clauses of the Fifth and Fourteenth Amend-
ments, see, e.g., Perry v. Sindermann, 408 U.S. 598, 599,
601-02 (1972)), and the deprivation of those rights on
nakedly racial grounds is a sufficient affront if not to the
merit principle than to the ideals of racial equality and
of judgment in accordance with individual worth to re-
quire something more than the slapdash effort at rational-
ization attempted by the defendants in this case; at least
our judicial superiors seem to believe that.

It is not enough that South Bend once discriminated
against black teachers on grounds unrelated to anything
for which superseniority would be a rational corrective
and that there are valid educational reasons for wanting
to expose black students to black teachers. This would
be enough to justify efforts to recruit more black teachers

96a

but it is not enough to justify taking away (whether tem-
porarily or permanently, depending on economic condi-
tions) white teachers’ jobs. Cf. f. Kromnick v. School Dis-
trict, 739 F.2d 894, 902 (3d Cir. 1984). For that a more
particularized showing of need is required than was
attempted.

My brethren’s scrutiny of the defendants’ conduct is not
“strict and searching’’; it is not brief, but it is casual, and
although supported by the Sixth Circuit’s decision in
Wygant v. Jackson Bd. of Educ., 746 F.2d 1152 (6th Cir.
1984), cert. granted, 105 S. Ct. 2015 (1985), is inconsis-
tent with the approach previously taken in this circuit,
see Janowiak v. Corporate City of South Bend, 750 F.2d
557, 563-64 (7th Cir. 1984), and Donovan v. Illinois Educa-
tion Ass’n, 667 F.2d 638, 641-42 (7th Cir. 1982), with the
spirit of the Supreme Court’s decisions in McDonald v.
Santa Fe Trail Transp. Co., 427 U.S. 273 (1976), and Fire-
fighters Local Union No. 1784 v. Stotts, supra, 104 S. Ct.
at 2584, 2588, with an earlier Sixth Circuit decision, Oliver
v. Kalamazoo Board of Education, 706 F.2d 757 (6th Cir.
1983), and with the evident seriousness with which all of
the Supreme Court Justices regard any form of racial dis-
crimination. Even Wygant provides only limited support
for the decision today. Wygant did not involve a policy
of not laying off any blacks—it just provided that no
higher percentage of blacks than of whites could be laid
oft the process for ratification of the collective bar-
gaining agreement was not (so far as remarked in the
opinions, anyway) flawed, as was the process here. No
case before today has upheld so harsh a form of reverse
discrimination. The plan of affirmative action upheld in
United Steelworkers v. Weber, 443 U.S. 193 (1979), for ex-
ample, did not involve discharging any workers. But I
shall not pretend that precedent dictates the outcome of
this case. We must distill principles, and apply them. The
principle I distill is that the kind of reverse discrimina-
tion involved in this case, which takes away job rights
and not just job opportunities, requires careful and critical
review; and it has not received it.

97a

The harshness of the discrimination practiced in this
case does not go completely unremarked by my brethren,
but they do not draw the obvious conclusion, which is that
the defendants, ought to be required to show that this
discrimination was necessary to achieve some clearly
lawful end. My brethren remark the painful character of
what the defendants have done to the plaintiffs, yes, but
the only solace they offer these plaintiffs, who have lost
their jobs, is to note that the loss is, for most of them
anyway, temporary; that many white teachers, though not
necessarily the plaintiffs, voted to give the blacks extra
seniority; and that in any event the plaintiffs, being white,
have not been “stigmatized” by being laid off. Although
man does not live by bread alone, neither does he live
by self-esteem alone, and it is small comfort to a person
who loses his job as a result of discrimination in favor
of a black to be told that he has, after all, the consola-
tion of being white, that most of the people who have
discriminated against him are themselves white, and that
he may get his job back some day soon—though some of
these plaintiffs have been waiting for three years. I am
willing to accept that the equal protection clause means
as a practical matter less for whites than for blacks but
not that it means nothing at all, which if this decision
stands will be the approximate situation in this circuit
after today.

A true Copy:
Teste:

Clerk of the United States Court of
Appeals for the Seventh Circuit

98a

United States Bistrict Court
Northern District of Indiana

South Bend Dibision

ELMER BRITTON et al

vs. . S$82-0283

Allen Sharp
SOUTH BEND COMMUNITY
SCHOOL CORPORATION

JUDGMENT IN A CIVIL CASE

Decision by Court. This action came to trial or hearing
before the Court with the judge named above presiding.
The issues have been tried or heard and a decision has
been rendered.

IT IS ORDERED AND ADJUDGED

that plaintiffs take nothing by way of their complaint
against the defendant, South Bend Community School
Corporation and its Board of Trustees, and judgment is
hereby entered in favor of the defendants and against the
plaintiffs. It is futher ordered that plaintiffs’ state law
claims be DISMISSED WITHOUT PREJUDICE.

RICHARD E. TIMMONS
Clerk

By: Karen L. Brickner September 26, 1984
Deputy Clerk

99a
ELMER BRITTON, et al.,

Plaintiffs,
v.

SOUTH BEND COMMUNITY
SCHOOL CORPORATION, et al.,
Defendants.

United States District Court,
N.D. Indiana,
South Bend Division
Sept. 25, 1984

MEMORANDUM AND ORDER
ALLEN SHARP, Chief Judge.

This action arises under the Fourteenth Amendment
to the Constitution of the United States, 42 U.S.C. 8§
1981, 1983 and Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. § 2000e, et seg., the Indiana
Constitution and the Indiana Teacher Tenure Act, I.C. 20-
6.1-4-1, et seg. Jurisdiction of this court is predicated upon
a federal rights question under 28 U.S.C. § 1331, civil
rights claims under 28 U.S.C. § 1343 and an employment
discrimination (Title VID) claim under 42 U.S.C. § 2000e-
5(f)(3). Jurisdiction over the state claims is grounded on a
theory of pendent claim jurisdiction. United Mine Workers
v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d
218 (1966). This case was tried before the court sitting
without a jury on April 26-27, 1984. Post-trial briefs and
proposed findings of fact and conclusions of law were sub-
mitted to the court by all parties on July 30, 1984. Final
argument was held in South Bend, Indiana, on August 3,
1984. This memorandum and order constitutes this court’s
findings of fact and conclusions of law for purposes of F.R.
Civ.P. 52(a).

100a
I.

This dispute has its genesis in the voluntary adop-
tion by the South Bend Community School Corporation
Board of Trustees (Board) of an affirmative action plan
(Resolution 1020) designed to increase the percentage
of minorities in the teaching force. The plaintiffs are
white teachers who were laid off by the South Bend
Community School Corporation (School Corporation) on
June 7, 1982. Resolution 1020 was adopted on December
18, 1978 after several discussions at Board meetings focus-
ing on the recruiting and hiring practices of the School
Corporation and the low percentage of minorities on the
School Corporation’s teaching staff. Over the course of
these discussions, statistics were presented to the Board
exhibiting the disparity between the percentage of blacks
in the student body.

One such presentation was made on October 7, 1978 by
Mr. William Roberts, acting Assistant of Superintendent
of Personnel. He introduced statistics showing the num-
ber of black teachers and the number of black employees
from 1970-1978. Statistics were also presented showing
the number of black teachers in each school in 1970 and
1978 and the number of blacks who had left the School
Corporation since 1975. Mr. Willie Green, a black com-
munity activist, presented other statistics comparing the
percentage of black students with the percentage of black
staff members.

Resolution 1020, as finally adopted, provides that the
School Corporation will strive to increase the percentage
of minorities in its teaching force until that percentage
equals the percentage of minorities in its student body.
The Board specifically resolved to increase the percentage
of mino:ity pupils because it deemed it essential that the
student population, both black cnd white, have a sufficient
number of minority teachers to act as role models.

During the next three school years, (1978-1979, 1979-

aa

101la

80 and 1980-81), the School Corporation hired a greater
percentage of black teachers then it had hired in any prior
three-year period since records have been kept regarding
the racial composition of the teaching force. From the
1978-79 school year to the 1981-82 school year, 63 out of
the i161 teachers hired were black. The percentage of black
teachers in the teaching force increased from 10.4% in the
1978-79 school year to 13% in the 1981-82 school year. The
percentage of black pupils in the School Corporation in the
; 1981-82 school year was 25.42%.

ee a ena |

On February 8, 1980, Resolution 1020 was incor-
porated into the Consent Order entered by this court in
United States of America v. South Bend Community School
Corporation, et al., Cause No. S 80-35.’ The United States
Department of Justice had commenced that action earlier

1The United States filed a suit in February 1980 against the
South Bend Community School Corporation, its Superintendent,
its Board of Trustees, individually and as a group, alleging that
defendants had engaged in various acts of discrimination with
the intent and effect of segregating students and faculty on the
basis of race in the South Bend, Indiana public school system.
The suit was brought under Section 407 of Title IV of the Civil
Rights Act of 1964 (42 U.S.C. § 2000c-6) and Section 207 of the
Equal Educational Opportunities Act of 1974 (20 U.S.C. § 1706).
The Government sought an injunction prohibiting defendants
from discriminating on the basis of race or color in operating
the schools within the territory of the School Corporation and
requiring defendants to develop and implement a desegregation
plan which should remove all vestiges of prior discrimination.

This court entered a consent order submitted by the parties
and calling for defendants to develop and implement a desegrega-
tion plan for student assignments by the beginning of the 1981-
82 school year on February 8, 1980. On February 26-27, 1981,
the Board of School Trustees passed a resolution adopting a
desegregation plan for student assignments. On February 27,
1981, the parties to the suit submitted to this court a proposed
consent order incorporating the plan. The plan was subsequently
revised, resubmitted to the district court on April 3, 1981, and
was adopted by this court on April 17, 1981.

(Footnote continued on the following page)

102a

on the same day. In its complaint, the Justice Department
alleged that the School Corporation had engaged in acts of
discrimination which were intended to segregate, and had
the effect of segregating, students and faculty on the basis
of race within the school system.

The Consent Order required the School Corporation
to formulate a specific desegregation plan for student as-
signment by September 1, 1980. In addition, the Order
required the School Corporation to continue to pursue its
present affirmative action hiring policies. Further the

1 (Continued)

On February 26, 1981 Clay Quality Education II, Inc. (Clay)
sought leave to intervene as a defendant. Clay was an
Indiana not-for-profit corporation whose members were parents
of children in the South Bend school system. On March 3,
1981 the South Bend Branch of the National Association for the
Advancement of Colored People (NAACP) also filed a motion to
intervene. On April 17, 1981, this court entered an order denying
the NAACP’s and Clay’s motions to intervene. A timely notice of
appeal was filed by Clay with respect to the order refusing inter-
vention. See U.S. v. South Bend Community School Corporation,
511 F.Supp. 1352 (N.D.Ind.1981).

On May 4, 1981, the NAACP filed a motion for reconsideration
of the April 17 order refusing intervention. Clay filed a notice
of appeal from that order on May 13, 1981. On May 27, 1981,
this court stayed the implementation of the April 17 consent
decree pending appeal. The School Corporation and the Justice
Department each filed motions to vacate the stay order on May
28 and 29, 1981, respectively. The NAACP motion for recon-
sideration, as well as the motions of the School Corporation and
the Justice Department for vacation of the stay, were denied by
this court on June 1, 1981. Thereafter, the School Corporation
and the Justice Department filed motions in the Court of Appeals
for the Seventh Circuit requesting that court to vacate the stay
pending appeal. That court did so on August 5, 1981. The Court
of Appeals subsequently affirmed this court’s denial of the mo-
tions to intervene on July 28, 1982. On motion of the defendants,
the Court of Appeals affirmed the order in a published order. See
United States v. South Bend Community School Corp., 692 F.2d
623 (7th Cir.1982).

103a

Consent Order contained the School Corporation’s denial
that it ever engaged in intentional discrimination. At no
time were findings made that the School Corporation had
engaged in intentional digcrimination against any black
applicant or teacher.

On May 16, 1980, the School Corporation entered into
a three-year Collective Bargaining Agreement with the
NEA-South Bend, the exclusive bargaining representative
for the School Corporation’s teachers. The Agreement,
in Article XXIII, § 9, provides that in the event of a
reduction in force, “No minority bargaining unit employee
shall be laid off.” The term “minority” referred only to
black teachers. The provision had not appeared in any
prior collective bargaining agreements between the School
Corporation and the NEA-South Bend.

Prior to and during the negotiations, the administra-
tion and the Board anticipated that the Board might have
to lay off teachers during the term of the 1980-83 Collective
Bargaining Agreement. Thus, the School Corporation ne-
gotiating team proposed the “no minority lay-off” clause to
maintain the success it had achieved in recruiting minority
teachers pursuant to Resolution 1020.

The negotiations which led to the 1980-83 Collective
Bargaining Agreement lasted two weeks. After the ne-
gotiations, representatives from the NEA-South Bend
met with the teachers to discuss the proposed Collective
Bargaining Agreement. Article XXIII, § 9 was discussed
at that meeting. Thereafter, the teachers ratified the
proposed agreement by a substantial argin. No member
of the Union ever filed a grievance alleging that he or she
was not fairly represented by the NEA in the negotiations
leading to the 1980-83 Collective Bargaining Agreement.

On April 26, 1982, the Board determined by resolution
to eliminate 232 teaching positions, necessitating an actual

104a

reduction in force of 188 teachers.? The Administration
promptly notified the 188 teachers, including the plaintiffs,
that their contracts were being considered for cancellation
as is required by LC. § 20-6.1-4-11. After receiving this
notice, certain teachers pursuant to I.C. 20-6.1-1-1 et seq.,
filed written requests for a statement of why the Board was
considering their contracts for cancellation. In compliance
with such requests, the Board advised those persons that
their contracts were being considered for cancellation be-
cause of an alleged justifiable decrease in the number of
teaching positions resulting from declining pupil enroll-
ment and increased operating expense. Certain teachers
also requested a hearing pursuant to I.C. § 20-6.1-4-11, on
the proposed reduction in force and the cancellation of their
contracts.

The Board scheduled the hearing for May 24, 1982. On
the day of the hearing, counsel for several of the teachers
asked for, and received, a continuance to better prepare
for the hearing. The Board rescheduled the hearing for
June 1, 1982 at 4:00 o’clock P.M. Counsel for the teachers
did not object to the appointed time of the hearing nor did
they seek any other continuance throughout the course of
the proceeding. The hearing, which was open to the public,
began at 4:00 o’clock P.M. and lasted until 6:00 o’clock A.M.
on June 2, 1982. The entire Board presided at the hearing
with Mr. Hollis Hughes, president of the Board, acting as
chief hearing officer.

The rescheduled hearing was conducted along

2The number of teachers who were laid off was subsequently
reduced to 146 pursuant to an agreement between the School
Corporation and the NEA-South Bend. The parties entered into
the agreement as part of a consent order by Special Judge, John
G. Baker, in an action entitled South Bend Community School
Corporation v. National Education Association South Bend, et
al., which was pending in St. Joseph Circuit Court and docketed
as Cause No. N-7015.

105a

guidelines adopted from materials obtained from the
Indiana State School Board Association and supplemented
by the advice of counsel for the Board. During the course of
the proceedings, several teachers individually challenged
their position on the seniority list. Further, the Board
refused to allow one witness to testify out of turn. This
ruling was in accord with an agreement entered into pre-
viously among the parties that no deviation in the proceed-
ings would occur absent agreement among the parties. The
Board also asked one of the witnesses for the teachers
to step down after the witness had ignored several ad-
monitions from the teachers’ counsel and from the hearing
officers to stop testifying about irrelevant matters.

Based on the testimony and evidence presented at the
hearing, the Board on June 7, 1982, entered Findings of
Fact and Conclusions of the Board. The Board found that
the proposed layoffs constituted a justifiable decrease in the
number of teaching positions and that the teachers chosen
for layoff were properly selected pursuant to the terms of
the Collective Bargaining Agreement entered into with the
NEA-South Bend. The Board also found that the teachers
who individually challenged their position on the seniority
list were not entitled to a change in seniority. Pursuant
to these findings, the Board on June 7, 1982 cancelled the
contracts of the teachers who attended the hearing and also
the teachers who had not attended the hearing but had
received notice of cancellation.

The Collective Bargaining Agreement went into effect
on August 15, 1980, and terminated on August 15, 1983,
and was superseded by a 1982-84 Collective Bargaining
Agreement with an identical “no-minority layoff” provi-
sion. However, the School Corporation formed a committee
to study the matter of minorities and reductions in force.
Such committee recommended in January 1984 the adop-
tion of the following substitute clause which reads:

Affirmative retention is defined as maintaining

106a

the same percentage of minority teachers in each
minority classification throughout a period of
reduction in force as were employed prior to such
a reduction. For the purposes of this contract,
minority shall be defined as members of the Black
and Hispanic Races. (P. 17, Sec. 5, “Final Report
of the Minority Language Committee”)

The plaintiffs allege that they were laid off in viola-
tion of the equal protection and due process clauses of the
Fourteenth Amendment of the Constitution of the United
States, the Civil Rights Act of 1861, 42 U.S.C. § 1981, the
Civil Rights Act of 1871, 42 U.S.C. § 1983, Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0789%3A2. Public record. Not legal advice.