Britton v. South Bend Community School Corp.

• Decision Date: 21 October 1985
• Docket Number: No. 84-2841,84-2841
• Citation: 775 F.2d 794
• Parties: 39 Fair Empl.Prac.Cas. 170, 38 Empl. Prac. Dec. P 35,679, 54 USLW 2235, 28 Ed. Law Rep. 92 Elmer BRITTON, et al., Plaintiffs-Appellants, v. SOUTH BEND COMMUNITY SCHOOL CORPORATION, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 794

775 F.2d 794

39 Fair Empl.Prac.Cas. 170,

38 Empl. Prac. Dec. P 35,679, 54 USLW 2235,

28 Ed. Law Rep. 92

Elmer BRITTON, et al., Plaintiffs-Appellants, v. SOUTH BEND COMMUNITY SCHOOL CORPORATION, et al., Defendants-Appellees.

No. 84-2841.

United States Court of Appeals Seventh Circuit.

Argued May 28, 1985.

Decided Oct. 21, 1985.

Daniel H. Pfeifer, Sweeney & Pfeifer, Donald E. Wertheimer, Harry Heppenheimer & Assoc., South Bend, Ind., Michael Carvin, U.S. Dept. of Justice, Washington, D.C., amicus curiae, for plaintiffs-appellants.

Franklin A. Morse, II, Barnes & Thornburg, South Bend, Ind., Elliot M. Mincberg, Hogan & Hartson, Washington, D.C., for defendants-appellees.

Before CUDAHY and POSNER, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

CUDAHY, Circuit Judge.

This is a "reverse discrimination" 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 pursuant 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. Sec. 2000e et seq. 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 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 collective bargaining agreement between the South Bend Community School Corporation (the "School Corporation") and the National Education Association of South Bend, the exclusive bargaining representative 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 bargaining unit employee shall be laid off." The term "minority" 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 collective bargaining agreement between the School Corporation and NEA-South Bend.

Prior to and during the negotiations over the 1980-83 Agreement, the School Corporation anticipated the possibility of future layoffs because of declining school enrollment and budgetary constraints. It proposed the no minority 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 representation on the teaching staff approximately equal that of the minority student population. The negotiations leading up to the 1980-83 Agreement lasted two weeks. Representatives 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 presented 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 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 substantial margin. Inj. Tr. 83-88. ¹ No member of the union ever filed a claim for unfair representation under the Indiana Code. See 4 Ind. Code Sec. 20-7.5-1-7(1982); 593 F.Supp. at 1226 (apparently mistakenly labeling the appropriate claim as a "grievance.")

Late in April of 1982, 188 white teachers were notified that their contracts were being considered for cancellation. After various proceedings including an all-night hearing 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. Pursuant to Article XXIII, Section 9 of the 1980-83 Agreement, 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 violation of the Fourteenth Amendment, 42 U.S.C. Secs. 1981 & 1983, Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq., and the Indiana Teacher Tenure Act, IND.CODE Sec. 20-6.1-4-1 et seq. (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 individual teacher plaintiffs were named instead. ²

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 injunction 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 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 decision 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 minority layoff clause (and the layoffs they suffered pursuant to it) violate (1) the Equal Protection Clause of the Fourteenth Amendment, (2) Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq., and (3) the Indiana Teacher Tenure Act, IND.CODE Sec. 20-6.1-4-1 et seq. (1982).

B.

The long history of racial segregation and discrimination 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, 413 U.S. 920, 93 S.Ct. 3066, 37 L.Ed.2d 1041 (1973); see also Note, Indianapolis Desegregation: Segregative Intent and the Interdistrict 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. Id. at 663. Ratification of the Fourteenth Amendment had little effect in Indiana's schools; the state passed a statute in 1869 authorizing black children to attend school, but requiring segregated systems. Id. 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 version codified at IND.CODE Sec. 20-8.1-2-1 et seq. (1982)).

Our review of the record indicates that the earliest period for which there is information about the percentage 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. ³ Id. 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. ⁴ 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. Sec. 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 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 Superintendent's...