Oliver v. Kalamazoo Bd. of Educ.

• Citation: 548 F. Supp. 646
• Decision Date: 07 October 1982
• Docket Number: No. K88-71 C.A.,K88-71 C.A.
• Parties: Michelle OLIVER, et al., Plaintiffs, and Kalamazoo Education Association and Michigan Education Association, Plaintiffs-Intervenors, v. KALAMAZOO BOARD OF EDUCATION, et al., Defendants.
• Court: United States District Courts. 6th Circuit. United States District Court (Western District Michigan)

548 F. Supp. 646

Michelle OLIVER, et al., Plaintiffs, and Kalamazoo Education Association and Michigan Education Association, Plaintiffs-Intervenors, v. KALAMAZOO BOARD OF EDUCATION, et al., Defendants.

No. K88-71 C.A.

United States District Court, W. D. Michigan, S. D.

October 7, 1982.

Michael W. Sussman, Brooklyn, N. Y., for plaintiffs.

Thomas A. Baird, Foster, Swift, Collins & Coey, Lansing, Mich., for KEA and MEA.

Arthur Staton, Ford, Kriekard, Staton & Allen, Kalamazoo, Mich., for KBE.

Richard Gartner, Asst. Atty. Gen., Lansing, Mich., for State of Michigan.

OPINION

FOX, Senior District Judge.

In an opinion dated September 30, 1980, this court ordered the Kalamazoo Board of Education (KBE) to recall all black tenured teachers which it had laid off in staff reductions due to declining enrollment and financial resources. 498 F.Supp. 732 (1980). The court also ordered KBE to implement a 4:1 ratio for further recalls. In so ordering, the court rejected both straight seniority recall, which was provided for in the contract and supported by the Kalamazoo Education Association (KEA), and plaintiffs' proposal to order all black faculty recalled. In its opinion the court stated:

To insure that the KBE maintains an upward thrust towards this 20% black faculty goal, this court holds that once the KBE has recalled all Black tenured teachers, then all future recalls are to be based on seniority, so long as at least 20% of all recalls in any one year are filled by Black employees. Where a seniority based recall would result in the return of less than 20%, then Black teachers must be recalled out of order to the extent necessary to achieve this percentage. If the district should ever reach a point where the only teachers left in the recall pool are either non-Black or Blacks who are not certified for available jobs, then it must recall no more than 80% non-Black, while hiring so as to achieve 20% Black

Id. at 754 (emphasis added). The order is on appeal to the Court of Appeals for the Sixth Circuit.

The issue emphasized in the above-quoted portion of the opinion is again before the court. Plaintiff-intervenors KEA and MEA have moved for a partial stay pending appeal. It appears that the KBE is prepared, on Thursday, October 14, 1982, to follow the court's order by hiring a new black, probationary teacher to fill a position for which no blacks in the recall pool are qualified, but for which there are qualified, tenured, white teachers still in the recall pool.

JURISDICTION

Plaintiffs oppose the motion on jurisdictional grounds, but Fed.R.App.P. 8 clearly requires an application for a stay pending appeal to be sought in the first instance in the district court.

STANDARDS FOR STAY PENDING APPEAL

As stated by this court in United States v. State of Michigan, 505 F.Supp. 467, 470 (W.D.Mich.1980):

To obtain a stay of a district court injunction pending an appeal, certain familiar tests must be met. The standard is set forth in Virginia Petroleum Jobbers Ass'n v. F.P.C., 259 F.2d 921 (D.C.Cir.1968), and may be paraphrased as follows:

(1) Has the petitioner made a strong showing that it is likely to prevail in the merits of the appeal?

(2) Has the petitioner shown that without such relief, it will be irreparably injured?

(3) Would the issuance of a stay substantially harm other parties interested in the proceedings?

(4) Where lies the public interest?

A. Likelihood of Success on the Merits.

The recent First Circuit decision in Morgan v. O'Bryant, affirming District Judge Garrity's orders of June 2 and July 9, 1981, in the Boston desegregation case, indicate a strong likelihood that this court's order will be affirmed on appeal. 671 F.2d 23 (1st Cir. 1982), cert. denied, ___ U.S. ___, 103 S.Ct. 62, 74 L.Ed.2d 64 (1982). Morgan is factually distinguishable: the orders go only to recalls and not to new hirings; require only ratio maintenance; and involve a district which has already reached its goal of 20% black teachers. However, the real issue, as stated by the First Circuit, is strikingly similar:

We understand, and sincerely regret, the fact that the expectations of certain teachers have been defeated, but the alternative would be to defeat the expectations of the plaintiff class of school children and their parents. The district court struck a reasonable balance between these competing interests, and we therefore see no reason to disturb it.

671 F.2d at 29. In footnote 7, which accompanied the above text, the First Circuit noted, in part, "the contracts alone cannot bar a federal court from granting effective relief for constitutional violations. See Arthur v. Nyquist, 520 F.Supp. 961 at 965, and cases cited therein." Here too, the court has struck a reasonable balance which will allow further progress towards the 20% black teaching staff required to cure the constitutional violations it identified.

Moreover, in reviewing the standards for equitable remedies in school desegregation cases, as set forth in Milliken v. Bradley, 433 U.S. 267, 280-281, 97 S.Ct. 2749, 2757-2758, 53 L.Ed.2d 745 (1977), the order appears particularly appropriate. First, "the remedy is related to `the condition alleged to offend the constitution ....'" Milliken, supra, at 280, 97 S.Ct. at 2757 (citations omitted; emphasis in original). The court has identified KBE's failure to seek and obtain qualified black staff as a constitutional violation. 368 F.Supp. 143, 176, 180 (W.D.Mich.1973), aff'd, 508 F.2d 178 (6th Cir. 1974), cert. denied, 421 U.S. 963, 95 S.Ct. 1950, 44 L.Ed.2d 449 (1975). The order of September 30, 1980 is certainly related to this condition.

Second, the order is "remedial in nature, that is ... designed as nearly as possible `to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct.'" Milliken, supra, 433 U.S. at 280, 97 S.Ct. at 2757 (citation omitted; emphasis in original). By requiring an upward thrust toward a 20% black teaching staff, the order restores the victims of the discriminatory conduct (students and their families), to the position they would have otherwise occupied.

Finally, the order "takes into account the interests of the state and local authorities in managing their own affairs, consistent with the constitution." Milliken, supra, at 281, 97 S.Ct. at 2758. The court's remedy allows and requires KBE to advance toward its own goal of 20% black teaching staff, a goal it otherwise may be unable to pursue given declining enrollment and funds. Cf. Morgan, supra, 671 F.2d at 29 (court adoption of School Committee's own proposal "cuts in favor of the district court's decision ...."). The court finds, therefore, that there is not a likelihood of plaintiff-intervenors' success on the merits such as to justify a stay pending appeal.

B. Irreparable Injury to Petitioner.

The second test turns on irreparable injury to petitioner KEA. At least one KEA member, and perhaps more, will not be recalled as a result of the court's order, now on appeal. This alone does not rise to the status of irreparable harm. It is truly unfortunate, with today's falling enrollment and revenues, that experienced and dedicated teachers should be laid off. And to the individual teacher the burden may not be light. However, petitioner has not demonstrated irreparable injury to the court. The general statements contained in petitioner's brief¹ demonstrate that an individual teacher may be harmed, but there is not a sufficient showing of irreparable harm to justify a stay.²

C. Harm to Other Parties.

Laid off teachers' expectations must give way to the constitutional rights of the long-suffering plaintiffs in this action. The lack of proven irreparable harm to the KEA, discussed above, is...