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Supreme Court Hears White Teachers' Lawsuit Charging 'Reverse Discrimination' in Layoffs

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Washington--An affirmative-action plan that cost 10 senior white Jackson, Mich., schoolteachers their jobs when a financial crunch forced layoffs in 1980 amounts to "nothing less than naked racial preference," a lawyer for the teachers argued before the U.S. Supreme Court last week.

But according to the lawyer representing the school board under attack in Wygant v. Jackson Board of Education (Case No. 84-1340), the voluntarily adopted plan is not only constitutional, but also the key element in the board's successful efforts to integrate its schools and provide high-quality education to all its students.

The case marks the first time in recent years that the Court has considered a lawsuit on the use of affirmative-action procedures by public schools. Before accepting the case last April, the Justices had turned down requests to rule on nearly identical plans in Boston, Buffalo, and Kalamazoo, Mich.

The case may provide the Court with an opportunity to settle once and for all the more general--and politically explosive--debate over the constitutionality of employment programs that give members of minority groups preference over whites.

The Court's decision to review the case is also significant because the Wygant plaintiffs are arguing on the basis of the 14th Amendment to the U.S. Constitution. All of the Court's previous rulings on affirmative action have rested on interpretations of Title VII of the Civil Rights Act of 1964.

In a friend-of-the-court brief filed in the case, the Reagan Administration strongly criticized "the shambling logic" behind the Jackson schools' plan, arguing that special treatment can be given only to identifiable victims of proven discrimination. The Administration has made opposition to affirmative action--which it says represents unlawful "reverse discrimination"--a major theme of its civil-rights program.

Case History

The Wygant case stems from contract provisions first negotiated by the Jackson Education Association and the city school board in 1972 and renegotiated in all subsequent contracts.

The first provision requires the school board to ensure that the percentage of minority teachers employed by the district is no less than the percentage of minority students districtwide. At the time the provision was adopted, 15 percent of the district's students were members of minority groups, compared with 8.5 percent of the teaching force.

The second provision states that if layoffs become necessary, the seniority rights of white teachers may be set aside, so that the percentage of minority teachers laid off at no time exceeds the percentage of minority teachers in the teaching force at the time of the layoff notice.

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

The 10 teachers filed suit in federal district court in 1980, arguing that the plan violated their rights under the 14th Amendment and Title VII. The district court upheld the plan that year, a decision affirmed by a federal appeals court in October 1984.

In their appeal to the Justices, the teachers dropped the Title VII portion of their argument, instead contending only that the plan violated their rights to equal protection under the Constitution.

'Most Compelling' Reason

The justification for employment practices that give preference to one race over another "must be most compelling," and the plan adopted by the Jackson board fails that test, K. Preston Oade Jr., the lawyer for the plaintiffs, told the Justices during the Nov. 6 oral arguments.

"The use of race in this case has no legal basis," he said. "In order to take two public employees, one white and one black, and to treat them differently, one must need a most extraordinary justification.''

When asked by Associate Justice Sandra Day O'Connor whether a history of discrimination against black teachers would provide such a justification, Mr. Oade replied affirmatively. However, he continued, the fatal flaw in the Jackson plan is that there has never been a judicial finding of such discrimination in the city's school system.

Mr. Oade's response apparently irked Associate Justice Thurgood Marshall, the Court's only black member.

"Didn't you ever have segregated schools in Jackson?" Justice Marshall asked.

"Not since 1953," the lawyer replied.

"I said 'ever,"' the Justice shot back.

Mr. Oade responded that the record developed in the trial went back only to 1953 and did not indicate discrimination.

'Red Herring'

According to Jerome A. Susskind, the lawyer representing the Jackson board, Mr. Oade's argument that the plan is illegal because there has not been a judicial finding of discrimination "is a red herring."

"The reason we don't have a good [judicial record showing discrimination] is because we voluntarily agreed to integrate," he told the Justices. "If we'd been recalcitrant and not obeyed this Court's rulings, we would have been sued and then there would have been a record. That's why we're not like a Dayton or a Columbus."

"If you are not going to protect minorities from layoffs, then you're only engaged in an exercise in futility," he added later.

Few Questions

Unlike most oral arguments before the Court, in which the Justices often interrupt each other to pose questions to lawyers, the Wygant hearing was unusually interruption-free.

Of the nine members, only Associate Justices O'Connor, John Paul Stevens, and Byron R. White--seemed eager to engage the lawyers in debate. Justice Marshall's questioning was confined mainly to his brief exchange with Mr. Oade. And Chief Justice Warren E. Burger and Associate Justices Harry A. Blackmun and William H. Rehnquist--all of whom can be typically found in the thick of things during such arguments--asked no questions during the entire one-hour hearing.

The Court will most likely rule in the case by July.

Other Action

The Justices also dealt last week with the following cases:

Witters v. Washington Department of Services for the Blind (No. 84-1070). The Court heard arguments in the case, in which the state agency denied state and federal vocational-rehabilitation aid to a blind college student studying to become a minister. Last year the Washington State Supreme Court upheld the agency's decision, saying that the provision of aid to the student represented an impermissible advancement of religion in violation of the First Amendment.

According to Michael P. Farris, the student's lawyer, nothing in the First Amendment's establishment clause mandates that ministerial students "be quarantined from state aid."

Mr. Farris argued that the state high court reached its conclusion by a misapplication of the three-part test developed by the Justices for judging the constitutionality of state aid to religious institutions. According to the lawyer, the state court should have judged the effects of the aid program as a whole, rather than the effects of aid to an individual student. Because the effect of the program as a whole is neutral, he argued, Mr. Witters should be eligible for financial assistance.

Timothy R. Malone, an assistant state attorney general, contended, however, that state regulations requiring counselors to approve aid applicants' career choices and courses of study "will produce some very strange results, ones that this Court should be concerned about."

He asked the Court to suppose that state labor-department data indicated an oversupply of Episcopal ministers and Catholic priests and an undersupply of Lutheran ministers.

"Must the counselor say to those who want to become Episcopal ministers or Catholic priests, 'Sorry I can't help you, but have you considered enrolling in a Lutheran seminary?"' Mr. Malone asked. "There is no way to get out of this swamp."

The Court is expected to rule in the case before July.

Lorain Journal Co. v. Milkovich (No. 84-173). The Justices refused a request to review this case, which hinged on the question of whether a high-school coach is a "public figure" and thus subject to a stricter standard in attempting to prove libel.

The case stems from a melee that broke out at an Ohio high-school wrestling match in 1974. A sportswriter for the News-Herald of Wil8loughby, Ohio, wrote a column accusing the coach of one of the teams of instigating the fight and of later lying to a county judge in order to win an order lifting his team's suspension.

The accused coach, who is described as being nationally recognized among wrestling coaches, sued the columnist for libel. After protracted litigation, the Ohio Supreme Court ruled last year that the coach is not a public figure for First Amendment purposes and thus did not have to meet the stricter libel standards.

Hunt v. Guilford County Board of Education (No. 85-409). The Justices declined to review a federal appeals court's ruling that an autistic boy from Greensboro, N.C., is not entitled under federal civil-rights statutes to year-round education in a local residential center. Because the district does not have such a facility, the services sought would be "overly burdensome," the appeals court said, and thus are not required under the Education for All Handicapped Children Act of 1975 and Section 504 of the Rehabilitation Act of 1973.

San Antonio Independent School District v. City of San Antonio (No. 85-453). The Court also turned down this case, which had its genesis in a 1975 Texas law that set regulations for utilities operated by local governments. At issue was the amount of money the school distict owed the city for electricity and gas. Twelve school and hospital districts had sued the city; only the San Antonio district lost its case, due to a legal technicality.

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