Marsh v. Board of Educ. of City of Flint

• Decision Date: 07 March 1984
• Docket Number: No. 80-40349.,80-40349.
• Parties: Stuart MARSH, Plaintiff, v. BOARD OF EDUCATION OF CITY OF FLINT, a Public Corporation; Leo Macksood, individually and as President of the Board of Education of the City of Flint; United Teachers of Flint, Inc., a Michigan Corporation; Harold Keim, individually and as President of United Teachers of Flint, Inc.; Lane Hotchkiss, individually and as Chief Negotiator and Grievance Officer of United Teachers of Flint, Inc., Defendants.
• Court: U.S. District Court — Western District of Michigan

581 F. Supp. 614

Stuart MARSH, Plaintiff, v. BOARD OF EDUCATION OF CITY OF FLINT, a Public Corporation; Leo Macksood, individually and as President of the Board of Education of the City of Flint; United Teachers of Flint, Inc., a Michigan Corporation; Harold Keim, individually and as President of United Teachers of Flint, Inc.; Lane Hotchkiss, individually and as Chief Negotiator and Grievance Officer of United Teachers of Flint, Inc., Defendants.

No. 80-40349.

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

March 7, 1984.

COPYRIGHT MATERIAL OMITTED

Bruce A. Newman, Flint, Mich., for plaintiff.

C. Rees Dean, Flint, Mich., Thomas A. Baird, Lansing, Mich., for defendants.

MEMORANDUM OPINION AND ORDER

NEWBLATT, District Judge.

"Again and again Federal judges have spoken out, above a popular din or a Klansman's roar, as protectors of constitutional rights."¹

I FACTS

A glorious new era dawned in the history of the American federal courts on February 20, 1961. On that date the Supreme Court rendered its decision in Monroe v. Pape,² and thus raised up the sleeping Lazarus of 42 U.S.C. § 1983.

Monroe lit up the darkness that all too often descends when government power goes unchecked by the judiciary. Monroe signalled that individuals in America — by virtue of section 1983 — can obtain monetary and injunctive relief from the excesses of government.

It is not surprising that it has been the powerless — racial minorities, women, employees and prisoners — who have benefitted most from section 1983. It also is not surprising that section 1983 plaintiffs typically choose the federal courts as the forum in which to litigate their claims. Federal judges are insulated from political pressures by Article III of the constitution. In theory at least, society is prevented from intimidating federal judges from upholding the law. It thus is easy to understand why a lone plaintiff — supported by nothing more than the abstract principles codified in the constitution and civil rights laws — would assert to the limit his right to a federal court forum.

The case presently before this Court is a civil rights action. Stuart Marsh — the plaintiff — is a white man. But the constitution and the civil rights laws seem to guarantee that color is not relevant and that the government cannot confer benefits nor visit burdens on account of race. Stuart Marsh now asks the Court to make good on this guarantee.

Mr. Marsh, fifty-nine years of age, has been employed by the Flint Board of Education since 1965. After obtaining the appropriate credentials, he was promoted in 1969 to the position of counselor.

Mr. Marsh performed his duties ably and was continued in the counselor position until 1980. In that year, Mr. Marsh was suddenly informed that he would no longer occupy a counselor's position and that he would be required to resume duties as a classroom teacher.

Mr. Marsh's demotion resulted from the operation of an affirmative action program designed to maintain a specified quota of black counselors in the Flint secondary school system. The pertinent affirmative action provision is set out in Article XIV, section I-1(c) of the 1979-1982 collective bargaining agreement³ entered into by the Flint Board of Education and the United Teachers of Flint. Under this provision, the racial composition of the counselor and librarian staff of the Flint secondary school system is targeted to match the racial composition of the entire secondary teaching staff which in turn is to reflect the student racial composition. In order to maintain the specified quota, at least four black persons with less seniority than Mr. Marsh were retained as counselors in the 1980-1981 school year. It is not contested that these individuals were retained as counselors over Mr. Marsh on account of race.

In an effort to obtain redress, Mr. Marsh filed this lawsuit suing the following defendants: the Flint Board of Education; Leo Macksood, the President of the Board of Education; the United Teachers of Flint; Harold Keim, the President of the United Teachers of Flint; and Lane Hotchkiss, the chief negotiator and grievance officer of the United Teachers of Flint. Plaintiff's claims against Messrs. Keim and Hotchkiss have been dismissed in earlier orders of the Court. The remaining defendants are the Flint Board of Education, Mr. Macksood and the United Teachers Union.

Plaintiff has asserted 42 U.S.C. §§ 1981, 1983 and 1985(3) claims against the Board of Education and Mr. Macksood. Plaintiff alleges that the Board and Macksood applied an explicit racial classification in employment thereby violating both section 1981 and the equal protection clause of the Fourteenth Amendment. Plaintiff asserts his equal protection clause claim by way of 42 U.S.C. § 1983. Plaintiff also alleges that the Board and Mr. Macksood conspired to deprive him of rights protected by 42 U.S.C. § 1985(3). Finally, plaintiff alleges that the union — defendant United Teachers of Flint — violated 42 U.S.C. § 1981 by entering into the race based affirmative action agreement.

There are only minor disputes in the facts,⁴ and since the essential facts relative to plaintiff's legal theories are beyond doubt established, it is entirely appropriate to resolve now, without a trial, the issue of whether plaintiff is or is not entitled to relief. Pending herein are motions for summary judgment filed by the three remaining defendants. The thorough and scholarly briefs filed by the very able counsel have been read. The Court also has ever so carefully studied and reflected upon the applicable body of law in dealing with the pending motions which are now before the Court.

II LEGAL ANALYSIS

A. Plaintiff's 42 U.S.C. § 1985(3) Claim Against Defendants Board of Education and Macksood

Plaintiff contends that the affirmative action plan at issue here operated to violate 42 U.S.C. § 1985(3). Resolving this issue requires construction of a statute famous for its opaque language. Assistance is afforded by some rather instructive precedent, for while section 1985(3) is not litigated as often as section 1983, it still has been the subject of a number of full Supreme Court opinions.⁵

Section 1985(3) protects against conspiracies aimed at certain classes of persons. Arguably there are two alternative reasons why plaintiff Marsh's section 1985(3) claim should be dismissed via summary judgment.

First, it is noted that plaintiff's section 1985(3) claim arises out of a so-called conspiracy to racially discriminate against him in employment. In the case of Great American Federal Savings v. Novotny, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979), the Supreme Court held that a person asserting a Title VII⁶ claim of employment discrimination cannot also assert a claim under 42 U.S.C. § 1985(3). The Novotny court's language provided that

"deprivation of a right created by Title VII cannot be the basis for a cause of action under section 1985(3)."⁷

Here, plaintiff never asserted a Title VII claim. Although Title VII — by dint of the 1972 amendments⁸ — has been extended to cover public employers, plaintiff Marsh chose to rely solely on sections 1981 and 1983 rather than section 1985.

If Novotny were read to encompass all employment discrimination claims, dismissal of the section 1985(3) claim outright would be compelled. But as mentioned, Novotny deals with rights created by Title VII. Here, plaintiff's asserted right was not created by Title VII. Plaintiff is here asserting his equal protection clause right to be free from race based governmental discrimination. The genesis of this right is, of course, the dictum in the famous (or more appropriately, infamous) Korematsu⁹ decision. By the time of the 1954 Brown v. Board of Education¹⁰ decision, the right was firmly embedded in the equal protection clause.

In sum, plaintiff's racial discrimination claim was created by the Constitution rather than Title VII. It follows that Novotny does not mandate dismissal of plaintiff's section 1985(3) claim.

A more formidable defense is that plaintiff — under the facts of this case — is not within the protective ambit of section 1985(3). Recently, in United Brotherhood of Carpenters and Joiners of America v. Scott, ___ U.S. ___, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983), the Supreme Court rendered an important opinion dealing with the protective scope of section 1985(3). Scott makes it clear that section 1985(3) only affords protection where the alleged conspiracy has a race or class based animus.

Section 1985(3) is the former section 2 of the Ku Klux Klan Act of 1871.¹¹ The Supreme Court has devoted hundreds of pages to analyzing the legislative history of this Act.¹² These discussions and this Court's own study of the 1871 Act¹³ leave this Court entirely convinced that the overriding purpose of the Act was to protect the newly freed blacks from Ku Klux Klan violence and intimidation.

Affirmative action is a modern phenomenon dating from the post World War II civil rights movement. Unlike the legislative debates surrounding Title VII of the 1964 Civil Rights Act, the debates concerning section 1985(3) do not reveal even a trace of concern over the issue of affirmative action. This is not to say that whites can under no circumstances enjoy the protection of this statute. Clearly, racial attacks against whites or other forms of concerted mob violence would be covered under section 1985(3). Here, however, the conclusion is compelled that it was not the statute's objective to strike down employment related affirmative action.

Before leaving this issue it is appropriate to stress that the Court is involved in statutory — rather than constitutional — interpretation. Consequently, attention is focussed solely on the intent of the 1871 drafters¹⁴ and on higher court interpretative decisions. The inquiry would be different were a constitutional provision at issue. This Court does not believe in strict historical interpretavism as championed...