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Court To Decide Constitutionality Of Voluntary Affirmative Action

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Washington--The U.S. Supreme Court agreed last week to decide whether the Constitution permits teachers' unions and school boards to agree voluntarily to set aside the seniority rights of white teachers in order to preserve the jobs of less senior minority teachers in times of layoffs.

The Court's decision to hear Wygant v. Jackson Board of Education (Case No. 84-1340) marked the first time in recent years that it has agreed to review the use of affirmative-action procedures by school officials.

During the past two years, the Justices have declined to hear three similar cases involving race-conscious layoff policies for teachers in Boston, Buffalo, and Kalamazoo, Mich., and a fourth case involving involuntary teacher transfers in Philadelphia. The employment practices were upheld by lower courts in the Boston, Buffalo, and Philadelphia cases; the Kalamazoo policy was invalidated.

Constitutional Implications

The decision also marked the first time the Court has agreed to rule on the constitutional implications of such affirmative-action agreements. Prior rulings by the Court, including its controversial holding last year in a case brought by white Memphis firefighters, rested on interpretations of Title VII of the Civil Rights Act of 1964.

Spokesmen for the Equal Employment Opportunity Commission and the Educa-tion Department's office for civil rights said neither agency keeps statistics on the number of school districts nationwide that practice some form of affirmative action in employment.

Although the precise number might not be known, "quotas and other racial preferences are pervasive in the police and firefighter context and they are rapidly spilling over into education," said one of the lawyers representing the 10 white Jackson, Mich., teachers who filed the lawsuit accepted by the Court.

The Reagan Administration has not filed a "friend-of-the-court" brief in the Wygant case, but lawyers for both parties in the case say such a move is inevitable. Since coming into office, Administration officials have been waging a campaign against race-conscious affirmative-action policies, which they maintain are illegal given the "colorblind" nature of Title VII and the 14th Amendment's equal-protection clause.

William Bradford Reynolds, the Justice Department's top civil-rights official, has stated on numerous occasions during the past year that the Court's June 1984 decision in the Memphis case, Firefighters Local Union No. 1784 v. Stotts, stripped federal courts of all authority under Title VII to order race-conscious hiring, promotion, and layoff policies in public employment. (See Education Week, Aug. 22, 1984.)

This month, Mr. Reynolds's office announced that it had sent letters to 51 state and local jurisdictions--including four school districts--notifying them that their court-ordered affirmative-action plans require modifications to bring them into compliance with the Stotts decision. The office recommended that the jurisdictions join with it in filing joint motions with the federal courts seeking such modifications. (See Education Week, April 10, 1985.)

Furthermore, in a speech in February before the Florida Bar Association, Mr. Reynolds encouraged the Court to accept a case, such as Wygant, challenging on constitutional grounds a public employer's voluntary adoption of a race-conscious employment policy.

"[I]nvalidation of a public employer's [voluntary] preferential employment plan which is grounded on race can, in my view, appropriately be anticipated once the constitutional issue is properly brought before the Court," he said.

Contract Provisions

The Wygant case stems from contract provisions first negotiated by the Jackson Education Association, an affiliate of the National Education Association, and the city's board of education in 1972 and renegotiated in all subsequent contracts.

The first provision requires the school board to ensure that the percentage of minority teachers employed in each school in the southern Michigan district is no less than the percentage of minority students districtwide. At the time the provision was adopted, 15 percent of the districts students' were black or members of other minority groups, compared with about 8.5 percent of the teaching force.

The second provision states that when reductions in force are required, the seniority rights of white teachers can be set aside so that the percentage of minority teachers laid off at no time will be greater than the percentage of minority teachers employed at the time of the layoff.

Ten white teachers lost their jobs in early 1980 as a result of the policy. Nine of the 10 are currently back on the job, although all have outstanding claims for back pay and retroactive seniority.

The teachers challenged the layoff policy in federal district court, contending that it was unconstitutional because it was adopted in the absence of a judicial finding of discrimination against black teachers. A federal district judge upheld the layoff policy in late 1980, ruling that no such finding was necessary. The U.S. Court of Appeals for the Sixth Circuit affirmed the lower court's ruling last October.

Other Action

The Court also took action last week in the following education-related cases:

The Justices ruled 8 to 0 that a black elementary-school teacher from Dyer County, Tenn., who won a race-bias suit against his school board in federal court is not entitled under the Civil Rights Attorney's Fees Awards Act of 1976 to legal fees for work that his lawyers did in optional state administrative procedings.

The Court held in Webb v. County Board of Education of Dyer County (No. 83-1360) that lower federal courts improperly awarded Leonard Webb more than $9,700 for legal fees and other expenses incurred during administrative hearings before the school board because he could have taken his case directly to the federal courts.

In an unsigned opinion, the Justices ruled in Springfield Township School District v. Knoll (No. 82-1889) that a federal appeals court mistakenly allowed a Pennsylvania school employee to pursue a sex-discrimination claim against the township school board after the state's six-month statute of limitations against such suits had expired.

The appeals court had reasoned that the state law was illegal because it frustrated the intent of Section 1983 of the Civil Rights Act of 1871, the law that the school em-ployee filed her suit under. The Court overturned the ruling and sent the case back to the appeals court for a rehearing.

In a decision in another case handed down the same day as Knoll, the Court held 7 to 1 that Section 1983 claims "are best characterized as personal-injury actions" and thus subject to state statutes of limitation. The Court reached that decision in Wilson v. Garcia (No. 83-2146).

The Justices declined to hear a case questioning whether under the Education for All Handicapped Children Act of 1975, an Oklahoma school district can be required to provide a mentally handicapped child who has received 12 years of special education with continuing special education until she reaches 21. The case was Independent School District No. 3 v. Helms (No. 84-1391).

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