Wygant v. Jackson Bd. of Educ.

• Decision Date: 07 September 1982
• Docket Number: Civ. A. No. 81-60156.
• Citation: 546 F. Supp. 1195
• Parties: Wendy WYGANT, et al., Plaintiffs, v. JACKSON BOARD OF EDUCATION, et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

546 F. Supp. 1195

Wendy WYGANT, et al., Plaintiffs, v. JACKSON BOARD OF EDUCATION, et al., Defendants.

Civ. A. No. 81-60156.

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

September 7, 1982.

COPYRIGHT MATERIAL OMITTED

Joseph A. Warren, III, Lansing, Mich., for plaintiffs.

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

MEMORANDUM OPINION AND ORDER

JOINER, District Judge.

This action is brought by nineteen (19) non-minority school teachers employed by the Jackson Board of Education. Plaintiffs assert various constitutional and statutory claims against the defendants, the Jackson Board of Education and its individual members. The case is now before the court on cross-motions for summary judgment. For the reasons given below, defendants' motion is granted and plaintiffs' motion is denied.

FACTS

The roots of this case reach nearly thirty (30) years into the past. It will be helpful, in coming to grips with the problems posed by this case, to review that past. The following statement of facts is adapted from defendants' brief and is not disputed by the plaintiffs.

Before 1953, no black teachers were employed by the Jackson Public Schools. In that year, the first black school teacher was hired. She was one of sixty-one (61) new hires for the 1953-54 school year. By 1961, ten (10) teachers on a staff of 515 were minorities for a minority to majority ratio of 1.8 percent.

By 1969, black students constituted 15.2 percent of the total student population, while black teachers constituted only 3.9 percent of the total teaching staff. It appears that only in 1969 did the Jackson School District seriously turn its attention to the problem of underrepresentation of minorities on the faculty.

In October, 1969, the Superintendent's Professional Staff Ad Hoc Committee recommended that each of Jackson's 22 elementary schools include at least two minority faculty members within one year. The Executive Secretary of the Jackson Education Association (JEA) was a member of that committee.¹ Since only three of the 22 elementary schools then had at least two minority faculty members, implementation of the Committee's recommendation would have required the School Board to hire 40 new minority teachers within one year. The Committee's recommendation was rejected.

Over the next two years, a Citizens School's Advisory Committee, and a Professional Council made up of school administrators and representatives of JEA, studied the problem. By November, 1971, 15.9 percent of the student body was minority, while only 8.3-8.5 percent of the faculty was minority. At that time, the collective bargaining agreement between JEA and the Board of Education mandated that layoffs be imposed on a straight seniority basis. That is, the last hired were the first to be fired.

In January, 1972, the Minority Affairs Office of the Jackson Public Schools solicited the views of all teachers on the district's layoff policy. Ninety-six (96) percent of the teachers expressed a preference for the straight seniority system and opposed a system that would freeze minority layoffs. In this atmosphere, contract negotiations were commenced in the spring, 1972.

In retrospect, 1972 appears to have been a critical year for the Jackson School District. In February, race tensions boiled over and violence broke out at the Jackson High School. In the spring, a tentative agreement was reached by JEA and the Board of Education on a new contract, a contract which included increased protection from layoffs for newly hired minority teachers. In September, the teachers returned to work, even though the collective bargaining agreement had not yet been ratified. In the late fall, the teachers struck for a short period of time. Finally, in late fall, the contract for the 1972-73 school year was ratified.

The relevant provisions of that contract have been continued through to the contract challenged in this action and read as follows:

ARTICLE VII.D.1. The Board and the Association, in recognition of the desirability of multi-ethnic representation on the teaching faculty, hereby declare a policy of actively seeking minority group personnel. For the purposes of this contract, minority group personnel will be defined as those employees who are Black, American Indian, Oriental, or of Spanish descendancy. The goal of such policy shall be to have at least the same percentage of minority racial representation on each individual staff as is represented by the student population of the Jackson Public Schools. (Emphasis added).

ARTICLE VII.D.2. In order that this goal be expeditiously met, it is agreed that, for vacancies in school buildings in which this goal has not been met, the Board will actively seek, recruit, and hire qualified minority teachers for such vacancies. The Board will annually review each individual staff to ensure proper minority representation.

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 certificated maintaining the above minority balance. (Emphasis added).

In spring, 1973, layoffs were required and the contract language was followed. However, in spring, 1974, the School Board ignored the language of the contract in imposing layoffs. It retained tenured teachers and failed to maintain the percentage of minority personnel which existed at the time of the layoff. As a result, a group of minority teachers sued in federal district court. Judge DeMascio of the Eastern District of Michigan retained the civil rights claims but remanded the breach of contract claims to Jackson County Circuit Court.

In Jackson Education Association v. Board of Education of Jackson Public Schools, No. 77-0011484 CZ (Jackson County Cir. Ct., 1979), Judge Britten found that Art. XII.B.1. of the contract did not violate Title VII of the Civil Rights Act of 1964 or the Fourteenth Amendment.

Chastened, the Board apparently adhered to the letter of the contract when layoffs were next required. That course of action led to this lawsuit.

One group of plaintiffs — Wygant, Lamm, Krenkel, Csage, Smith, Diebold, Brzezinski, Crecine, Holton and Zaski — allege that on April 7, 1981, they were notified that they would be terminated for the 1981-82 school year and possibly indefinitely. They allege that they have been displaced by minority teachers or by the effects of the minority retention provisions of the collective bargaining agreement.

A second group of plaintiffs — Bluhm, Burnette, Staska, Kiesel, Janke, Verhoeven, Maynard and Odell — challenge layoffs which occurred much earlier. They allege that they were displaced by minority teachers with less seniority for various periods of time during the 1976-77 school year.

The plaintiff Ruth Ann Anderson is named in the caption to the complaint, but is not again mentioned. Presumably she belongs to one of the two groups described above, and she will be so treated.

Plaintiffs have challenged their layoffs on a variety of statutory and constitutional theories:

1. Equal Protection, U.S.Const. amend. XIV, § 1.

2. Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.

3. 42 U.S.C. § 1981.

4. 42 U.S.C. § 1983.

5. 42 U.S.C. § 1985.

6. Equal Protection, Mich.Const. art. I, § 2.

7. Elliott-Larsen Civil Rights Act, M.C. L.A. § 37.2101 et seq.

8. Teachers' Tenure Act, M.C.L.A. § 38.71 et seq.

9. Fair Employment Practices Act, M.C. L.A. § 423.301 et seq.²

The defendants have moved for summary judgment on or dismissal of all these claims on various grounds. Plaintiffs have countered with their own summary judgment motion. The parties are agreed that the relevant facts are not in dispute. Therefore, the various motions and countermotions will be addressed and ruled on point by point.

DISCUSSION

1. Equal Protection, U.S.Const. amend. XIV, § 1.

a. Prior Judicial Finding of Past Employer Discrimination as Prerequisite to Adoption of Affirmative Action Plan

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...