476 U.S. 267, 280 n.6 (1986)
In 1972 the Jackson Board of Education, because of racial tension in the community that extended to its schools, asked the Michigan State Board of Education to investigate the possibility of violations of the Michigan civil rights statutes by the Jackson School District.1 Following an investigation, the State Board found that there was no direct evidence of discrimination on the part of the Jackson Board.2 Nevertheless, because of the racial imbalance on the faculty as compared to the student population, the State Board suggested that the District might wish to consider some type of affirmative action program.3
The Board and the Jackson Education Association then negotiated the provision in the 1972 collective-bargaining agreement that is at issue in this case.4 That provision stated that in the event that it becomes necessary to reduce the number of teachers, those teachers with the longest seniority will be retained.5 The provision specified 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.6 In no event will the number of minority personnel employed be reduced below the number of minority personnel employed at the time of the layoff.7
When layoffs became necessary in 1974, it was evident that adherence to the collective-bargaining agreement would result in the layoff of tenured nonminority teachers while minority teachers on probationary status were retained.8 Rather than complying with the agreement, the Board retained the tenured teachers and laid off probationary minority teachers.9 The Union, together with two minority teachers who had been laid off, brought suit in federal court.10 After the federal court dismissed the action, the plaintiffs instituted a suit in state court, raising in essence the same claims.11
In entering judgment for the plaintiffs, the state court found that the Board had breached its contract with the plaintiffs and that Article XII did not violate the Michigan Teacher Tenure Act.12 In rejecting the Board's argument that the layoff provision violated the Civil Rights Act of 1964, the state court found that it had not been established that the board had discriminated against minorities in its hiring practices.13 The minority representation on the faculty was the result of societal racial discrimination.14 The state court also found that there is no history of overt past discrimination by the parties to this contract.15 Nevertheless, the court held that Article XII was permissible, despite its discriminatory effect on nonminority teachers, as an attempt to remedy the effects of societal discrimination.16
After the state-court decision, the Board adhered to Article XII.17 As a result, during the 1976-1977 and 1981-1982 school years, nonminority teachers were laid off, while minority teachers with less seniority were retained.18 The displaced nonminority teachers, petitioners here, brought suit in Federal District Court, alleging violations of the Equal Protection Clause, Title VII, 42 U.S.C. § 1983, and other federal and state statutes.19 On cross-motions for summary judgment, the District Court dismissed all of petitioners' claims.20 With respect to the equal protection claim, the District Court held that the racial preferences granted by the Board need not be grounded on a finding of prior discrimination.21 Instead, the court decided that the racial preferences were permissible under the Equal Protection Clause as an attempt to remedy societal discrimination by providing role models for minority schoolchildren, and upheld the constitutionality of the layoff provision.22 The Court of Appeals for the Sixth Circuit affirmed, largely adopting the reasoning and language of the District Court.23
Whether a school board, consistent with the Equal Protection Clause, may extend preferential protection against layoffs to some of its employees because of their race or national origin?24
Racial classifications by a governmental unit are subject to strict scrutiny under the Equal Protection Clause of the Fourteenth Amendment and must be justified by a compelling governmental interest and narrowly tailored to achieve that interest.
No. The Jackson Board of Education adopted the layoff provision in its collective-bargaining agreement with the Union without any finding of prior discrimination by the Board itself.25 The State Board of Education found no direct evidence of discrimination on the part of the Jackson Board.26 After the state court decision the Board adhered to the agreement and during the 1976-1977 and 1981-1982 school years nonminority teachers with greater seniority were laid off while minority teachers with less seniority were retained.27
The preferential layoff protection violates the Equal Protection Clause.28
Related opinions on this issue
Justice White concurs in the judgment and in Parts I, II, and III–A of the Court's opinion.29 He writes separately to note that he does not join Part III–B of the opinion.30 In his view, the Board's failure to identify specific past discrimination is dispositive.31
He also agrees that the role model theory is insufficient to justify the racial classification.32 The discharge of white teachers to make room for blacks, none of whom has been shown to be a victim of any racial discrimination, is quite a different matter from hiring goals.33 The layoff policy in this case has the same effect and is equally violative of the Equal Protection Clause.34
Justice O’Connor concurs in the judgment and joins Parts I, II, and III–A of Justice Powell's opinion.35 She agrees that the Board has not demonstrated a compelling interest in maintaining a certain percentage of minority teachers.36 The Board's interest in remedying societal discrimination is not sufficiently compelling to justify the use of racial classifications in this context.37
She also agrees that the layoff provision is not narrowly tailored.38 The District Court and the Court of Appeals clearly erred in relying on the purposes of remedying societal discrimination and providing role models.39 The hiring goal that the layoff provision was designed to safeguard was tied to the percentage of minority students, not to the percentage of qualified minority teachers within the relevant labor pool.40
In her view, the error of the lower courts can be explained by their assumption that in the absence of a specific, contemporaneous finding, any discrimination addressed by an affirmative action plan could only be termed societal.41
Whether the goal of providing minority role models for minority students justifies a racial classification in a teacher layoff provision?42
The goal of providing minority role models for minority students is not a compelling governmental interest sufficient to justify a racial classification. The theory bears no logical stopping point and permits racial balancing unrelated to any prior discrimination by the governmental unit.43
No. The District Court and Court of Appeals upheld the layoff provision on the theory that it provided role models for minority students by maintaining the percentage of minority teachers relative to the student population.44 This approach allows the Board to engage in racial preferences bearing no relationship to the number of minority students and requires year-to-year calibration of faculty composition.45 The role model theory has no logical stopping point and actually could be used to escape the obligation to remedy prior discriminatory hiring practices.46
The role model goal does not justify the racial classification in the layoff provision.47
Related opinions on this issue
Joined by Justices Brennan And Blackmun
Justice Marshall dissents and argues that the plan was a good-faith attempt to remedy the effects of past discrimination and to provide role models for minority students.48 The Court's decision will make it more difficult for school boards to address the continuing effects of racial discrimination in education.49 The plurality's requirement that a governmental unit must identify specific instances of past discrimination before it may adopt an affirmative action plan is unrealistic and contrary to precedents.50
School boards should have the flexibility to address the effects of societal discrimination in the educational system.51 The layoff provision is a narrowly tailored means of achieving the Board's important objectives because it affects only a small number of teachers and is limited in duration.52 The burden on nonminority teachers is not unconstitutional in light of the Board's compelling interests.53
Whether remedying societal discrimination justifies the use of racial preferences in layoffs by a public employer?54
Societal discrimination without more is too amorphous a basis for imposing a racially classified remedy and a governmental unit must identify specific past discrimination by the governmental unit itself before adopting racial preferences.55
No. The state court found that it had not been established that the board had discriminated against minorities in its hiring practices. The minority representation on the faculty was the result of societal racial discrimination and there is no history of overt past discrimination by the parties to the contract. The Board has not identified any particular past discrimination by the Board itself that would justify racial preferences in layoffs.56 Societal discrimination is insufficient and over-expansive as a basis for imposing discriminatory legal remedies that work against innocent people.57
Remedying societal discrimination does not justify the racial preferences in the layoff provision.58
Related opinions on this issue
Justice O’Connor agrees that the Board's interest in remedying societal discrimination is not sufficiently compelling to justify the use of racial classifications in this context.59 The District Court and the Court of Appeals clearly erred in relying on the purposes of remedying societal discrimination and providing role models. She believes that a public employer must have a firm basis for believing that remedial action is required before adopting an affirmative action plan.60
The imposition of a requirement that public employers make findings that they have engaged in illegal discrimination before they engage in affirmative action programs would severely undermine public employers' incentive to meet voluntarily their civil rights obligations.61
Whether a layoff provision that requires laying off nonminority teachers with greater seniority to retain minority teachers with less seniority is a narrowly tailored means to achieve any asserted governmental purpose?62
To survive strict scrutiny the means chosen must be narrowly tailored. A layoff provision that imposes the entire burden of achieving racial equality on particular innocent individuals by displacing them from existing jobs is not narrowly tailored when less intrusive means such as hiring goals are available.63
No. The layoff provision requires the layoff of nonminority teachers with greater seniority than some minority teachers imposing a substantial burden on innocent nonminority teachers.64 The Board could have achieved its purposes by less burdensome means such as the use of hiring goals rather than layoff preferences because layoffs disrupt settled expectations in a way that general hiring goals do not.65 The means chosen to achieve the Board's asserted purposes is that of laying off nonminority teachers with greater seniority to retain minority teachers with less seniority.66
The layoff provision is not a narrowly tailored means to achieve the asserted purposes.67
Related opinions on this issue
Justice Stevens dissents and concludes that the Board's policy is a reasonable response to the problem of racial tension and low minority representation in the teaching staff.68 The policy does not stigmatize or impose an undue burden on nonminority teachers.69 The Board's interest in maintaining a stable and diverse faculty is sufficient to justify the limited racial preference in layoffs.70
The Court's rigid application of strict scrutiny in this context is inappropriate.71 The Board's action was taken in good faith and is consistent with the goals of equal protection.72 In the context of public education, a school board may reasonably conclude that an integrated faculty will be able to provide benefits to the student body that could not be provided by an all-white faculty.73
It is one thing for a white child to be taught by a white teacher that color is only skin deep. It is far more convincing to experience that truth on a day-to-day basis during the routine learning process.74
Justice White concurs in the judgment.75 The discharge of white teachers to make room for blacks, none of whom has been shown to be a victim of any racial discrimination, is quite a different matter from hiring goals. The layoff policy in this case has the same effect and is equally violative of the Equal Protection Clause.
He cannot believe that it would be permissible to discharge whites and hire blacks to integrate a work force until the latter comprised a suitable percentage of the work force.76 None of the cases suggest that this would be permissible under the Equal Protection Clause.77