Wygant v. Jackson Bd. of Educ., Jackson, Mich., 82-1746

• Decision Date: 25 October 1984
• Docket Number: No. 82-1746,82-1746
• Citation: 746 F.2d 1152
• Parties: 36 Fair Empl.Prac.Cas. 153, 35 Empl. Prac. Dec. P 34,729, 53 USLW 2236, 20 Ed. Law Rep. 1124 Wendy WYGANT, Leonard Bluhm, Susan Lamm, John Krenkel, Florence Csage, Karen Smith, Susan Diebold, Deborah Brezezinski, Kathleen Crecine, Gordon Holton, Cheryl Zaski, Robert L. Staska, David P. Kiesel, Paula Janke, Martha Verhoeven, Perry Maynard, Mary O'Dell and Ruth Ann Anderson, Plaintiffs-Appellants, v. JACKSON BOARD OF EDUCATION, JACKSON, MICHIGAN, and Richard Surbrook, President and Don Penson, Robert Moles, Melvin Harris, Cecelia Fiery, Sadie Barham, and Robert F. Cole, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1152

746 F.2d 1152

36 Fair Empl.Prac.Cas. 153,

35 Empl. Prac. Dec. P 34,729, 53 USLW 2236,

20 Ed. Law Rep. 1124

Wendy WYGANT, Leonard Bluhm, Susan Lamm, John Krenkel,

Florence Csage, Karen Smith, Susan Diebold, Deborah

Brezezinski, Kathleen Crecine, Gordon Holton, Cheryl Zaski,

Robert L. Staska, David P. Kiesel, Paula Janke, Martha

Verhoeven, Perry Maynard, Mary O'Dell and Ruth Ann Anderson, Plaintiffs-Appellants, v. JACKSON BOARD OF EDUCATION, JACKSON, MICHIGAN, and Richard

Surbrook, President and Don Penson, Robert Moles,

Melvin Harris, Cecelia Fiery, Sadie

Barham, and Robert F. Cole,

Defendants-Appellees.

No. 82-1746.

United States Court of Appeals,

Sixth Circuit.

Argued Feb. 23, 1984.

Decided Oct. 25, 1984.

Thomas Rasmusson (argued), Joseph A. Warren, Lansing, Mich., for plaintiffs-appellants.

Jerome A. Susskind, Jackson, Mich., for defendants-appellees.

Before EDWARDS and WELLFORD, Circuit Judges, and PECK, Senior Circuit Judge.

GEORGE CLIFTON EDWARDS, Jr., Circuit Judge.

This is a school case tangentially involving segregation in public schools--this concerning a formula for layoff of teachers of minority races during economically required reductions in staff. The disputed formula is contained in the collective bargaining contract executed between the Jackson Teachers Association and the Board of Education of the City of Jackson, Michigan. It reads as follows:

ARTICLE XII.B.1. In the event that it becomes necessary to reduce the number of teachers through layoff from employment by the Board, teachers with the most seniority in the district shall be retained, except that at no time will there be a greater percentage of minority personnel laid off than the current percentage of minority personnel employed at the time of the layoff. In no event will the number given notice of possible layoff be greater than the number of positions to be eliminated. Each teacher so affected will be called back in reverse order for positions for which he is certified maintaining the above minority balance. (Emphasis added).

Appellants, who object to the Board's following this provision, contend that the quoted provision violates both federal and state statutory and constitutional provisions, including particularly the fourteenth amendment, Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e to 2000e-17 (1976 & Supp. V 1981); 42 U.S.C. Secs. 1981, 1983 and 1985 (1976 & Supp. V 1981).

While, at oral argument, this court was advised that due to somewhat improved economic conditions, only one teacher assignment is as a practical matter currently involved, the fundamental dispute over the validity of Art. XII.B.1. is still before us.

The District Judge who heard this case wrote a careful opinion upholding the validity of the layoff system adopted by the School Board and the Federation of Teachers. We quote in part Wygant v. Jackson Board of Education, 546 F.Supp. 1195 (E.D.Mich.1982) as follows:

"Plaintiffs argue first that they are entitled to summary judgment because an employer and a union cannot lawfully negotiate a voluntary affirmative action plan which gives preferential treatment to minorities, where there has been no judicial finding of past employer discrimination. Stated in other words, plaintiffs argue that societal discrimination, as opposed to identifiable employer discrimination, is not a lawful basis for the adoption of a voluntary affirmative action plan.

"United Steelworkers of America v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979) held that Title VII does not prohibit a private employer from voluntarily adopting an affirmative action plan 'to eliminate conspicuous racial imbalance in traditionally segregated job categories.' 443 U.S. at 209, 99 S.Ct. at 2730. In Weber, there was no judicial finding that the private employer, Kaiser Aluminum, had ever engaged in race discrimination. However, Kaiser's work force statistics for the years prior to the adoption of the affirmative action plan pointed up gross disparities between the number of blacks employed by Kaiser and the number of blacks in the relevant labor market. Thus, Weber stands for the proposition that Title VII does not require a judicial finding of employer discrimination before a private sector employer may adopt an affirmative action plan.

"Detroit Police Officers' Association v. Young, 608 F.2d 671 (6th Cir.1979), cert. denied, 452 U.S. 938, 101 S.Ct. 3079, 69 L.Ed.2d 951 (1981), extended this particular holding of Weber to public sector employers and to alleged Constitutional violations.

"In Young, the Detroit Police Department, after an internal determination that blacks were underrepresented in the department, voluntarily adopted an affirmative action program which promoted black patrolmen to sergeant ahead of white patrolmen who were higher on the eligibility list. The white officers challenged the affirmative promotion plan on Title VII and Equal Protection grounds. The Sixth Circuit relied on Weber to hold that the internal determination of racial disparities justified the voluntary plan, even though there had been no prior judicial determination of race discrimination.

"[D]iscriminatory acts which might not give rise to legal liability may nonetheless be sufficient to justify a voluntary remedial affirmative action plan... As Justice Blackmun noted in his concurring opinion in Weber, a preferential hiring plan which seeks to alleviate an imbalance caused by traditional practices of job segregation is a reasonable voluntary response 'whether or not a court, on these facts, could order the same step as a remedy'... Under Weber, the district court's holding that 'quota relief, when fashioned by the employer without the assistance and direction of the court, is not permitted ...' ... cannot stand as a matter of law. 608 F.2d at 689-90.

"Having thus held on the Title VII claim, the Young court applied the same principle to the Constitutional challenge.

"It was also error to require that there be judicial determination of past discrimination for a state to undertake a race-conscious remedy, as stated by the district court. This requirement would be 'self-defeating' and would 'severely undermine' voluntary remedial efforts. [Citing Regents of the University of California v. Bakke, 438 U.S. 265, 364, 98 S.Ct. 2733, 2785, 57 L.Ed.2d 750 (1978) ].

" Thus, it appears that plaintiffs' contention that the affirmative action plan at issue here cannot stand because there has been no prior judicial determination that the defendants engaged in racial discrimination, is without merit. Plaintiffs' motion for summary judgment on this ground is denied.

"b. Constitutionality of Affirmative Action Plan

"Having determined that a judicial finding that defendants engaged in race discrimination is not a prerequisite to adoption of the affirmative action at issue here, the court must still determine whether the plan is one permitted by the Constitution.

"As an initial matter, there must be some evidence that minority teachers have not enjoyed the same representation on the faculty of the Jackson Public Schools as have white teachers. Justice Brennan, for the majority in Weber, adhered closely to the facts of that case and framed this requirement in terms of 'conspicuous racial imbalance in traditionally segregated job categories.' 443 U.S. at 209, 99 S.Ct. at 2730. Justice Blackmun, in concurrence in Weber, held out for an 'arguable violation' standard. In other words, employers and unions which had committed 'arguable violations' of Title VII would be free to adopt voluntary affirmative action plans without fear of Title VII liability to whites.

"For purposes of the Equal Protection clause of the Constitution, the Young court stated this requirement as follows: 'whether "there is a sound basis for concluding that minority underrepresentation is substantial and chronic, and that the handicap of past discrimination is impeding access [and promotion] of minorities...," ' 608 F.2d at 694. The standard was adopted directly from the opinion of Justices Brennan, White, Marshall and Blackmun in Bakke.

"The Young court expressly held that: [I]t was error to require proof that the persons receiving the preferential treatment had been individually subjected to discrimination, for 'it is enough that each recipient is within a general class of persons likely to have been the victims of discrimination.' 608 F.2d at 694.

"The reason for this requirement is to permit the court to determine that the purpose of the affirmative action plan is legitimate. Valentine v. Smith, 654 F.2d 503, 508 (8th Cir.), cert. denied, 454 U.S. 1124, 102 S.Ct. 972, 71 L.Ed.2d 111 (1981).

"The requirement of some showing of previous underrepresentation of minorities must, of course, be adapted to the facts and circumstances of the particular case. In both Weber and Young it was appropriate, when searching for evidence of past discrimination, to compare the percentage of blacks in the employer's work force with the percentage of blacks in the relevant labor pool. For example, prior to the adoption of the affirmative action plan challenged in Weber, 1.83 percent of Kaiser-Aluminum's skilled workers were black while the relevant work force was 39 percent black. 433 U.S. at 198-99, 99 S.Ct. at 2724.

"However, in the setting of this case, it is appropriate to compare the percentage of minority teachers to the percentage of minority students in the student body, rather than with the percentage of minorities in the relevant labor market. It is appropriate because teaching is more than just a job. Teachers are role-models for their students. More specifically, minority teachers are role-models for minority students. This is vitally important because societal discrimination has often deprived minority children of other role-models. See, Oliver v. Kalamazoo Board of Education, 498 F.Supp. 732, 748 (W.D.Mich.1980) ('faculty ought to begin to approximate the...