Wygant v. Jackson Board of Education Brief Amici Curiae in Support of Respondents

    No. 84-1340

In T he

Ihtpran? (Umtrt of thr Itttipft BUUb
October Term, 1985

W endy W ygant, Susan Lam ;m , John Krenkel, Karen 
Smith , Susan Diebold, Deborah Brezezinski, Cheryl 
Zaski, and Mary Odell,

Petitioners,v.
Jackson Board of Education, Jackson, Michigan and 

Richard Surbrook, President and Don Pension, 
Robert Moles, Melvin Harris, Cecelia F iery, Sadie 
Barham , and Robert F. Cole,

_________  Respondents.

On Writ of Certiorari to the United States 
Court of Appeals for the Sixth Circuit

BRIEF OF AMICI CURIAE
LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER 

LAW AND AMERICAN CIVIL LIBERTIES UNION 
IN SUPPORT OF RESPONDENTS

James Robertson 
Harold R. Tyler, Jr., 

Co-Chairmen
Norman Redlich, Trustee 
Thomas D. Barr, Trustee 
W illiam L. Robinson 
Richard T. Seymour 
Norman J. Chachkin 

Lawyers’ Committee for 
Civil R ights Under Law 

1400 Eye Street, N.W. 
Washington, D.C. 20005 
(202) 371-1212

Robert A llen Sedler 
Burt Neuborne 
E. R ichard Larsen 

A merican Civil Liberties 
Union F oundation 

132 West 43rd Street 
New York, New York 10036 
(212) 944-9800

Walter A. Smith , Jr.*
R. Claire Guthrie 
Sue A. Kaplan 

Hogan & Hartson 
815 Connecticut Ave., N.W. 
Washington, D.C. 20006 
(202) 331-4500 

Counsel for Amici Curiae

* Counsel of Record

W il s o n  - Ef e s  P r in t in g  C o . .  In c . -  7 8 9 - 0 0 9 6  - W a s h in g t o n . D .C .  2 0 0 0 1



TABLE OF AUTHORITIES ............................ ................ ii

INTEREST OF AMICI .........    1

STATEMENT OF THE CASE..................... .................. . 1

1. The R ecord..... .................... ......................... ............ 3

2. The Facts ____________ ________________________  6

SUMMARY OF ARGUMENT ..........................................  13

ARGUMENT......................................................      15

I. THE LOWER COURTS’ DETERMINATION
THAT THE SCHOOL BOARD ACTED CON­
STITUTIONALLY SHOULD BE AFFIRMED.. 15
A. The Layoff Provision was Designed by the

School Board to Meet its Duty to Desegre­
gate the Schools as well as to Improve Edu­
cation in the Schools Through a More Diver­
sified Faculty.................... ..................................  15

B. The Steps Taken by the School Board, In­
cluding Its Agreement to the Layoff Provi­
sion, Were Reasonable and Necessary to 
Achieve Desegregation of the Schools and 
Diversification of the Faculty ........    21

II. ALTERNATIVELY, THE WRIT SHOULD
BE DISMISSED AS IMPROVIDENTLY
GRANTED......... .......................     25

A. The Record Does Not Present the Question
Raised in the Petition..._____ ______________  25

B. The Scope of the Record Is U nclear____ __  28
C. The Constitutional Issue Should Not Have

Been Decided...... .................................................  29

CONCLUSION ...................    30

TABLE OF CONTENTS
Page



11
TABLE OF AUTHORITIES

CASES Page
Allison v. Mackey, 188 F.2d 983 (D.C. Cir. 1951).. 5
Arthur v. Nyquist, 712 F.2d 816 (2d Cir. 1983),

cert, denied, 104 S. Ct. 3555 (1984)___________  28
Belcher v. Stengel, 429 U.S. 118 (1976)_____ ____  28
Berry v. School District of Benton Harbor, 467

F. Supp. 721 (W.D. Mich. 1978) .................... ....... 8, 16
Board of Education of Island Trees v. Pico, 457

U.S. 863 (1982)........................................................  24, 25
Bob Jones University v. United States, 461 U.S.

574 (1983) ....................      17
Brown v. Board of Education, 349 U.S. 294

(1955) ................... ................ .................... ...........17,18,24
Bryant v. Carleson, 444 F.2d 353 (9th Cir. 1971),

cert, denied, 404 U.S. 967 (1972) ......................... 5
Butler v. Eaton, 141 U.S. 240 (1891)......................  5
California Brewers Association v. Bryant, 444

U.S. 596 (1980)........ .................................... ........... 23
Cooper v. General Motors Corporation, 651 F.2d

249 (5th Cir. 1981) ...............    22
Cowgill v. California, 396 U.S. 371 (1970) ......... . 29
Daley v. Sears, Roebuck & Company, 90 F. Supp.

562 (N.D. Ohio 1950)......... ............. ......................  5
Ellis v. Cates, 178 F.2d 791 (4th Cir. 1949), cert.

denied, 339 U.S. 964 (1950) .......... .......................  5
Ford Motor Company v. Huffman, 345 U.S. 330

(1953)........................     22
Franks v. Bowman Transportation Co., 424 U.S.

747 (1976) ...................      22
Fullilove v. Klutznick, 448 U.S. 448 (1980 )______  15, 22
Green v. County School Board, 391 U.S. 430

(1968).......... ....................... ................................... 24
Hagans v. Lavine, 415 U.S. 528 (1974)...... .......... 30
Insurance Company of North America v. National 

Steel Service Center, Inc., 391 F. Supp. 512
(N.D. W. Va. 1975) .............. ..............................  5

Jackson Education Association v. Board of Educa­
tion, No. 4-72340 (E.D. Mich. 1976).....................passim

Jackson Education Association v. Board of Educa­
tion, No. 77-011484CZ (Jackson County Cir. Ct.
1979) .passim



Ill

Kromnick v. School District of Philadelphia, 739 
F,2d 894 (3d Cir. 1984), cert, denied, 105 S. Ct.
782 (1985) .................................................... ......... 20,28

Landy v. F.D.I.C., 486 F.2d 139 (3d Cir. 1973),
cert, denied, 416 U.S. 960 (1974) ........................  5

McClanahan v. Morauer & Hartzel, 404 U.S. 16
(1971) ...............................................    28

McDaniel v. Barresi, 402 U.S. 39 (1971) ............... . 17
Millikenv. Bradley, 433 U.S. 267 (1977)....... .........  24
Minnick v. California Dept, of Corrections, 452

U.S. 105 (1981) ................. ........... ...........................  29
Mitchell v. Oregon Frozen Foods Co., 361 U.S. 231

(I960) ............................     29
Morgan v. O’Bryant, 671 F.2d 23 (1st Cir.), cert.

denied, 459 U.S. 827 (1982) ____________ ______ 28
Mourning v. Family Publications Service, Inc., 411

U.S. 356 (1973).......................    4
Nahtel Corp. v. West Virginia Pulp & Paper Co.,

141 F.2d 1 (2d Cir. 1944)....................... ................  5
Needelman v. United States, 362 U.S. 600 (I960).. 28
North Carolina State Board of Education v.

Swann, 402 U.S. 43 (1971).......................... ...........  19
Pellicer v. Brotherhood of Railway and Steamship 

Clerks, 217 F.2d 205 (5th Cir. 1954), cert, de­
nied, 349 U.S. 912 (1955) .......................... ............ 22

Porcelli v. Titus, 431 F.2d 1254 (3d Cir. 1970),
cert, denied, 402 U.S. 944 (1971)......................... 20

Ramsey v. New York, 440 U.S. 444 (1979)............  28
Regents of the University of California v. Bakke,

438 U.S. 265 (1978) — ........................ ..................passim
Rescue Army v. Municipal Court, 331 U.S. 549

(1947) .......... ........................ ................. ............... 29
Schmidt v. Oakland Unified School District, 457

U.S. 594 (1982) ............................. .........................  30
Singleton v. Jackson Municipal Separate School 

District, 419 F.2d 1211 (5th Cir. 1969), cert.
denied, 396 U.S. 1031 (1970)_________ _____ ___ 17

Spector Motor Service, Inc. v. McLaughlin, 323 
U.S. 101 (1944) .......................................... ............  29

TABLE OF AUTHORITIES— Continued
Page



IV

St. Louis Baptist Temple v. F.D.I.C., 605 F.2d
1169 (10th Cir. 1979).... .......... ............... ...............  5

Swann v. Charlotte-Mecklenburg Board of Educa­
tion, 402 U.S. 1 (1971) ............... ............ ..........18,19,24

United States v. Dooley, 424 F.2d 1067 (5th Cir.
1970) ...... .............. ..................... ................................ 4

United States v. Montgomery County Board of
Education, 395 U.S. 225 (1969) .............. .............  17

United States Hoffman Machinery Corp. v. Richa,
78 F. Supp. 969 (W.D. Mich. 1948)............. ........ 5

United Steelworkers of America v. Weber, 443
U.S. 193 (1979) ...... ................ ................ ................  18, 19

W.R. Grace & Co. v. International Union of
United Rubber Workers, 461 U.S. 757 (1983).... 18

Washington v. Seattle School District No. 1, 458
U.S. 457 (1982)...... .............................................. 20

Zaslawsky v. Board of Education, 610 F.2d 661
(9th Cir. 1979)_________________ ___________ 20

OTHER AUTHORITIES
6 J. Moore, W. Taggart & J. Wicker, Moore’s Fed­

eral Practice 56.11 [9] (2d ed. 1985)................ 6
9 J. Wigmore, Evidence § 2579 (Chadbourn rev.

1981) ............................. ................ ........................ 6
Cooper and Sobol, Seniority Testing Under Fair 

Employment Laws: A General Approach to Ob­
jective Criteria of Hiring and Promotion, 82 
Harv. L. Rev. 1598 (1969) ______ ______ ___ ___  22

TABLE OF AUTHORITIES— Continued
Page



BRIEF OF AMICI CURIAE
LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER 

LAW AND AMERICAN CIVIL LIBERTIES UNION 
IN SUPPORT OF RESPONDENTS

INTEREST OF AMICI

The Lawyers’ Committee for Civil Rights Under Law 
was organized in 1963 at the request of the President 
of the United States to involve private attorneys in the 
national effort to assure civil rights to all Americans. 
The Committee membership today includes former Attor­
neys General of the United States, former presidents of 
the American Bar Association, law school deans, and 
many of the nation’s leading lawyers. The American 
Civil Liberties Union (ACLU) is a nationwide, non­
partisan organization of over 250,000 members dedicated 
to protecting the fundamental rights of the people of the 
United States.

The Lawyers’ Committee and the ACLU strongly sup­
port the right of a local school board to seek to achieve 
a well-integrated faculty, whether that action is under­
taken to improve the quality of education through a more 
diversified teaching staff, as a voluntary desegregation 
effort that furthers our nation’s commitment to nondis- 
criminatory policies in education, or in fulfillment of an 
affirmative obligation to desegregate a school system. In­
asmuch as the Jackson Board of Education acted pur­
suant to such goals, the Lawyers’ Committee and the 
ACLU file this brief amici curiae in support of the 
Board.1

STATEMENT OF THE CASE
This case is before the Court in a highly unusual pos­

ture. Although the case was disposed of by the district 
court on cross-motions for summary judgment, no dis­
covery was taken and no facts were adduced; instead, 
both the Board of Education and the teachers agreed that

1 All parties have consented to the filing of this brief. The letters 
of consent have been filed with the Clerk of the Court.



2

evidentiary materials presented and facts agreed to in 
two earlier related proceedings, Jackson I and Jackson 
II,2 should be relied on by the district judge in resolving 
the present dispute. Such an agreement is not unusual 
inasmuch as the previous proceedings involved similar 
parties and similar issues; understandably, in such cir­
cumstances the parties did not wish to bear the expense 
of retrying matters that had already been tried in the 
earlier cases.

What is unusual is that the parties did not make 
explicit in the trial court which materials from Jackson 
I and Jackson II they wished the court to treat as un­
disputed matters and which, if any, they did not. Based 
on the parties’ ambiguous representations on this issue, 
the district judge apparently elected to treat all the mat­
ters presented in Jackson I and Jackson II as properly 
before him in this case. No objection was raised to this 
approach by any party either in the district court or the 
court of appeals. Nonetheless, in their brief before this 
Court, the teachers (petitioners) now appear to dispute 
what is and is not part of the record and what is and 2

2 The earlier related proceedings were Jackson Education As- 
sociation Inc. v. Board of Education o f the Jackson Public Schools, 
No. 4-72340 (E.D. Mich. 1976), J.A. 30, et seq., and Jackson 
Education Association Inc. v. Board o f Education of the Jackson 
Public Schools, No. 77-011484CZ (Jackson County Cir. Ct. 1979), 
J.A. 39 et seq. We refer to them here as Jackson I and Jackson 
II, respectively. In Jackson I, the Jackson teachers’ union brought 
suit in federal court against the Board for its failure to fol­
low the layoff clause here at issue; the Board defended primar­
ily on the same grounds advanced by the teachers in the present 
case, including the contention that the layoff clause is unconstitu­
tional. After a trial on the merits, the federal court declined to 
resolve any of the issues presented, but relegated the parties to the 
state court. J.A. 37.

In Jackson II, the ensuing state court proceeding, the parties 
agreed upon a record consisting of a stipulation of facts and set 
of exhibits from Jackson I. J.A. 41. On the basis of that record, 
the state court resolved the merits of all claims and held, among 
other things, that the layoff clause is constitutional. J.A. 53. That 
state court decision on the merits was never appealed.



3

is not agreed to as undisputed fact.3 Thus, there are 
two matters this Court must resolve before reaching the 
constitutional question at issue: (1) what is “ the rec­
ord” before the Court; and (2) what are the facts in 
that record pertinent to the constitutional question. We 
address those two matters in turn.

1. The Record

In the district court, both parties filed summary judg­
ment motions and briefs in which they proffered a “ state­
ment of facts” and claimed that there was no dispute 
between them about those facts.4 They repeated this 
claim at oral argument on the motions5 and in their 
briefs in the court of appeals.6

3 For example, petitioners alleged below only that there had been 
“no finding of past employer discrimination in the hiring of teacher 
personnel on the part o f the Jackson School Board, by a govern­
mental agency competent to rule on such matters.” Complaint f| 21. 
They did not dispute, however, the existence of findings by the 
Board o f Education that the school district was segregated (Infor­
mation Circulated to Jackson Citizens, April 10, 1972, Concerning 
School Integration Efforts, Plaintiffs’ Exhibit 8 answer to question 7, 
Joint Pre-Trial Order, Jackson I ) ,  or the fact that the court in 
Jackson II found that the existence o f disproportionately small 
numbers of minority teachers in the Jackson schools discriminated 
against minority students. J.A. 52. Nonetheless, petitioners now 
contend, incorrectly, that “ [t]here is no violation of student rights 
in the Jackson School District”  and no discrimination in education. 
Petitioners’ Br. 11.

4 See Plaintiffs’ Motion for Summary Judgment at ff 3 ( “ [t]his 
case presents no genuine issue as to any material fact” ) ; Plaintiffs’ 
Brief in Support of Motion at 1 (stating that “  ‘there is no dispute 
as to the facts’ ” ) ( “ Plaintiffs’ Br.” ) ; Defendants’ Motion for 
Summary Judgment at If 5 ( “ there is no dispute as to the facts” ) ; 
Defendants’ Brief in Support of Motion for Summary Judgment at 
1-6 ( “ Defendants’ Br.” ).

5 See Transcript of District Court Hearing of February 23, 1982 
( “ Feb. 23, 1982 Tr.” ) at 2, 5-6.

6 Brief of Plaintiff-Appellants at 2 ( “ Trial was not held and facts 
were generally not disputed” ) ; Brief of Defendant-Appellees at 2 
( “ Trial was not held and facts were generally not disputed” ).



4

The undisputed facts upon which the parties relied 
and the district court based its opinion were taken di­
rectly from the findings made and evidence adduced in 
Jackson I and Jackson II. The parties clearly assumed 
that the present case would be decided on the basis of 
its historical context as that context was established in 
the earlier, related proceedings. Both respondents and 
petitioners referred repeatedly to the factual findings 
and evidence in Jackson I and Jackson II in their briefs 
in support of their motions for summary judgment.7 Ac­
cordingly, the district judge concluded that the entire 
history of this case— as that history is established in 
Jackson I and Jackson II— was properly before him: 
“ 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.”  8

7 For example, respondents’ lengthy statement of facts quoted 
freely, and without citation, from the deposition of Superintendent 
Lawrence Read, which was admitted into evidence in Jackson I, and 
from the uncontroverted testimony given in Jackson I by Kirk 
Curtis, the former Executive Secretary o f the Jackson County 
Education Association. Defendants’ Br. 2, 5. Indeed, respondents 
specifically stated that their recitation of the facts was derived from 
the undisputed evidence and findings in Jackson I  and Jackson II. 
Defendants’ Br. 6. Petitioners, too, referred to the findings in the 
earlier proceedings, noting that the state court in Jackson II 
found that there had been societal discrimination against black 
teachers, Plaintiffs’ Br. 2, and, at oral argument before the trial 
court, petitioners declined to object to the statement of facts as 
set forth in respondents’ brief. Feb. 23, 1982 Tr. 5-6.

8 Pet. App. 20a. Furthermore, the judge specifically noted that 
the “past”  (as established in Jackson I  and Jackson II) had been 
summarized in respondents’ brief and was “ not disputed by the 
plaintiffs.” Id. Petitioners cannot now controvert those undisputed 
facts and may not now lodge new facts with this Court. As this 
Court held in Mourning v. Family Publications Service, Inc., 411 
U.S. 356, 362 n. 16 (1973), a party cannot disavow admissions made 
before the district court when that party “ fail[ed] to controvert 
those admissions by affidavit”  and “ consistently maintained . . . 
that no factual matters remained unresolved.” The Court therefore 
concluded that summary judgment was properly granted. Id. See 
also United States v. Dooley, 424 F.2d 1067 (5th Cir. 1970) (where



5

Even if the parties did not agree to the inclusion of 
the full record of Jackson I and Jackson II in this case, 
the district court was authorized to take judicial notice 
of those records and rely upon them in reaching its deci­
sion. In Butler v. Eaton, 141 U.S. 240 (1891), this Court 
took judicial notice of the record in a prior related pro­
ceeding. Federal courts have relied extensively on this 
decision, holding that they “ may take notice of proceed­
ings in other courts, both within and without the federal 
judicial system, if those proceedings have a direct rela­
tion to the matters at issue,”  even if the records of those 
proceedings have not been offered into evidence.9

appellant’s counsel stated at oral argument that there was no 
dispute as to the facts, the appellate court construed this as a 
concession that the facts were not in dispute so that the trial court 
could properly consider entry of summary judgm ent); Allison v. 
Mackey, 188 F.2d 983, 984 (D.C. Cir. 1951) (trial court correctly 
considered admissions made in the points and authorities filed in 
support and opposition to a motion for summary judgment in 
rendering its decision); United States Hoffman Machinery Cory, 
v. Richa, 78 F. Supp. 969, 971-72 (W.D. Mo. 1948) (trial court 
relied upon admissions of counsel made at oral argument in deciding 
motion to dismiss).

9 St. Louis Baptist Temple v. F.D.I.C., 605 F.2d 1169, 1172 (10th 
Cir. 1979) (federal court took judicial notice of records in related 
state court proceeding which involved different parties, even though 
those records had not been offered into evidence). Accord Nahtel 
Corp. v. West Virginia Pulp & Paper Co., 141 F.2d 1, 2 n.2 (2d Cir. 
1944) (appellate court took judicial notice of the entire record of 
an earlier proceeding even though the parties had stipulated to only 
a portion of the record). See also Landy v. F.D.I.C., 486 F.2d 139, 
150-51 (3d Cir. 1973), cert, denied, 416 U.S. 960 (1974) (appellate 
court took notice of judicial proceedings occurring after the appeal 
was lodged) ; Bryant v. Carleson, 444 F.2d 353, 357 (9th Cir. 1971), 
cert, denied, 404 U.S. 967 (1972) (appellate court took judicial 
notice of judicial proceedings occurring after the appeal was 
noticed) ; Ellis v. Cates, 178 F.2d 791, 793 (4th Cir. 1949), cert, 
denied, 339 U.S. 964 (1950) (trial court took judicial notice of 
a proceeding by one of the parties in a prior related case); Ins. 
Co. of N. Am. v. Nat’l Steel Service Center, Inc., 391 F. Supp. 512 
(N.D. W. Va. 1975) (court took judicial notice of its own records 
of prior litigation related to the case before it) ; Daley v. Sears, 
Roebuck & Co., 90 F. Supp. 562, 563 (N.D. Ohio 1950) (court took



6

For these reasons, although our description of the facts 
below relies primarily on the parties’ summary judgment 
briefs and supporting affidavits, the record now before 
this Court includes all the uncontroverted evidence pre­
sented in Jackson I and Jackson II.

2. The Facts
Until 1953, there were no black teachers in the Jack- 

son public schools.10 In that year, a black woman, hired 
in a group of 61 new teachers, became the only black 
teacher on a teaching staff of 355.11 The number of mi­
nority teachers increased slowly thereafter from one in 
1953-54 to ten (1.8% ) in 1960-61 to twenty-four (3.9%) 
in 1968-69.12 In 1968-69, 15.2% of the students in the 
Jackson schools were minority students.13 The racial 
composition of the individual elementary schools varied, 
however, between 0% and 86% minority, with four 
schools having no minority students and some having as 
few as 14% white students.14

judicial notice of the record in an earlier related proceeding brought 
by the plaintiff). See generally 6 J. Moore, W. Taggart & J. Wicker, 
Moore’s Federal Practice fl 56.11 [9] (2d ed. 1985) ; 9 J. Wigmore, 
Evidence ,§ 2579 (Chadboum rev. 1981).

10 Affidavit of Jane I. Phelps, August 11, 1982 at 1 ( “ Phelps 
Aff.” ) . Defendants’ Br. 1.

11 Phelps Aft. 1-2. Defendants’ Br. 1.

12 Phelps Aff. 1. Defendants’ Br. 1 (citing data provided by 
Howard E. Thompson, Director o f Personnel, Jackson Public 
Schools, Plaintiffs’ Ex. 15, Joint Pre-Trial Order, Jackson I ) .  All 
o f the exhibits to the Pre-Trial Order were admitted into evi­
dence in Jackson I. See Transcript o f District Court Proceedings 
of March 31, 1976 ( “Jackson I Tr.” ) at 8.

13 Phelps Aff. 1. Defendants’ Br. 1.

14 Report of Citizens’ Advisory Committee, May 14, 1970, Plain­
tiffs’ Ex. 2, Joint Pre-Trial Order, Jackson I. The Board of Educa­
tion had redistricted the attendance zones for the high schools and 
junior high schools in 1963 and 1969 in order to ensure that the 
racial composition in each of these schools was roughly equivalent 
to that of the district as a whole.



7

Prompted in part by “ [v] arious complaints”  filed by 
the Jackson NAACP with the Michigan Human Rights 
Commission “ alleging segregation of elementary schools- 
as well as discriminatory treatment in staff hiring and 
placement,”  the Board initiated steps in the summer of 
1969 to desegregate the elementary schools by redrawing 
the student attendance zones and hiring more minority 
teachers.* 16 An ad hoc  committee of teachers, school ad­
ministrators and faculty union representatives was 
formed to study the Board’s alternatives in achieving 
both of these objectives.16 The Board received the com­
mittee’s report in October 1969 and adopted as Board 
policy the committee’s recommendations and findings.17

The committee’s “priority recommendation” was that, 
within a year, the faculties of each of the school district’s 
elementary schools include at least two minority persons.18

10 Defendants’ Br. 1 (noting- inter alia Complaint No. 6485-ED 
filed with the Michigan Civil Rights Commission by the Jackson 
NAACP on March 24, 1969).

16 Defendants’ Br. 1.
17 Defendants’ Br. 1-2. See also Deposition o f Lawrence Read, 

Superintendent o f Schools, May 16, 1975 at 10-11 ( “Read Dep.” ) 
( “ [the committee’s recommendations] were the guiding principles 
for the Board when it went through the whole process in the next 
two or three years of attempting to desegregate the schools” ). 
The Read Deposition was admitted into evidence in Jackson I. 
Jackson I Tr. 5.

18 Defendants’ Br. 2 (quoting Recommendations for Elementary 
School Redistricting, Jackson Public Schools Ad Hoc Committee, 
October 9, 1969, Plaintiffs’ Ex. 1, Joint Pre-Trial Order, Jackson I) 
( “ integrative experiences” designed to help achieve the goal of 
“ full and complete integration”  should be accomplished within the 
next twelve months including “ an integrated staff at each ele­
mentary school with a minimum of two minority group teachers 
in each school” ). Other recommendations included: inclusion of 
multi-ethnic materials in the curriculum, development of profes­
sional staff awareness of minority group problems through training 
and other growth experiences and increased communication with 
the community, and achievement of better inter-school experiences 
in which children of all races could interact. Id.



8

At that time, only three of the district’s elementary 
schools had even two minority teachers, and there were 
so few minority teachers in the system that to implement 
the recommendation the Board would have had to hire 
forty new teachers immediately.19 Recognizing that the 
recommendation, therefore, could not be implemented in 
a year, the Board obtained the Jackson Education Asso­
ciation’s approval to seek minority personnel actively and 
to establish a goal of 15% minority faculty in each school 
building.20

The Board also adopted a policy in 1970 calling for 
complete integration of the school system.21 The Jackson 
Board of Education and the Education Association were 
both committed to the goal of faculty integration as an 
important part of the school district’s “grand plan” for

19 Phelps Aff. 2. Defendants’ Br. 2.

20 This policy was incorporated as one clause in the 1970-72 
professional negotiations agreement. Read Dep. 63-64. The 15% 
goal was roughly equivalent to the minority student population and 
would have ensured the presence of two minority teachers in each 
elementary school building. See Testimony of Kirk Curtis, Execu­
tive Director o f the Jackson County Education Association, Jackson 
I  Tr. 46-47 ( “ Curtis Testimony” ). Such a goal, i.e., one related 
to the racial composition of the student population, is consistent 
with principles and procedures for the integration of schools 
promulgated by the Michigan State Board o f Education. Guide­
lines for Providing Integrated Education within School Districts, 
Michigan State Board of Education, June 1977 (reprinted in the 
Appendix to the court’s opinion in Berry v. School Dist. of Benton 
Harbor, 467 F. Supp. 721, 735-50 (W.D. Mich. 1978) ( “Michigan 
Guidelines” ) (desegregation plans should include “ if necessary, 
affirmative action plans which would change the racial composition 
of staff in the district to reflect the racial composition of students” ) .

21 Read Dep. 15 ( “ December of 1970, the Board adopted . . .  a 
very elaborate statement . . .  on its commitment to the desegrega­
tion or integration of the Jackson Public Schools” ). This state­
ment was adopted pursuant to a Report o f the Citizens’ Advisory 
Committee, May 14, 1970, Plaintiffs’ Ex. 2, Joint Pre-Trial Order, 
Jackson I, that found inter alia that “ the education of black children 
can best be furthered by integration of the curricula and the teach­
ing staff throughout the district.”  Read Dep. 14-15.



9

achieving a “ truly integrated school system.” 22 More­
over, both the Board of Education and the union agreed 
that Jackson had an affirmative obligation to implement 
a desegregation plan designed to overcome past discrimi­
nation against teachers and eliminate racial isolation of 
students in the schools.23

Affirmative recruiting in pursuit of these objectives 
increased the proportion of minority teachers employed by 
the Board of Education from 3.9% in 1969-70 to 8.8% 
in 1971-72.24 It soon became clear, however, that teacher 
layoffs in 1970 and 1971 (forced by the school district’s

22 School officials determined that integration of the teaching 
staff particularly was “ educationally sound and beneficial’’ and 
would “ assist in the education of the children in the community.” 
Read Dep. 76-77. There was “virtual unanimity” among the teach­
ers in the union that there was a “ need for black teachers” in the 
system and the union leadership expressed the view that “ it is a 
great deal of help to both students and other staff in a particular 
school to have a mixed staff of minority teachers. . . .” Curtis 
Testimony, Jackson I Tr. 42, 56. Under state policies, faculty 
integration is an important aspect of school desegregation. The 
1966 Joint Policy Statement of the State Board of Education and 
Michigan Civil Rights Commission on Equality o f Educational 
Opportunity provides in part:

[Segregation of students in educational programs seriously 
interferes with the achievement of the equal opportunity 
guarantee of this State and . . . segregated schools fail to 
provide maximum opportunity for the full development of 
human resources in a democratic society . . . .  [E jvery effort 
shall be made to prevent and to eliminate segregation of chil­
dren and staff on account of race or color. . . . Staff integration 
is a necessary objective to be considered by administrators in 
recruiting, assigning and promoting personnel.

Michigan Guidelines, note 20 supra, 467 F. Supp. at 747-748.

2:3 Defendants’ Br. 16 ( “ The defendants JPS and JEA recognized 
that students in the school district have a right to a single, multi­
racial school district. In order to obtain an education in an inte­
grated school, it was just as necessary to have an integrated 
faculty as it was to have an integrated student body. Therefore, 
the parties adopted an affirmative action plan” ) .

24 Phelps Aff. 2. Defendants’ Br. 8.



10
declining student population and generally adverse eco­
nomic conditions in Jackson and in Michigan) threatened 
to wipe out completely even these limited gains,25 The 
collective bargaining agreement then in effect generally 
required that the last hired be the first fired.26 The 
Board and the teachers’ union both recognized that, un­
less they found some way to assure new minority hires a 
measure of job security, their efforts to recruit new mi­
nority teachers would be crippled and their faculty deseg­
regation goal unreachable.27 Moreover, another complaint 
had been filed with the Michigan Human Rights Commis­
sion, there had been a “ violent (racially motivated) ex­
plosion” at one of the high schools,28 and the NAACP was 
prepared to file suit if a plan designed to remedy all as­
pects of segregation in the schools was not implemented.29 
The Board was convinced that further affirmative steps 
had to be taken and a lawsuit avoided.30

25 Defendants’ Br. 3. See also Read Dep. 24 ( “ when you went 
into the meeting place with the pink-slipping, you saw a lot of black 
faces there. As a matter of fact, it did literally wipe out all the 
gain that had been made in terms of affirmative action to bring 
that about” ) ; and Curtis Testimony, Jackson I Tr. 20 ( “ each year 
when there were layoffs well, all o f the newly recruited minority 
staff members were swept into the layoffs every year” ).

26 Defendants’ Br. 3.

27 Id. See also Read Dep. 69 (without layoff protections, “ [e]very- 
thing else is in danger, if not destroyed” ) ; Curtis Testimony, 
Jackson I Tr. 55-56 (I don’t see how you can fulfill a goal . . .  if 
you can’t recruit them” ) .

28 Defendants’ Br. 4 (quoting Read Dep. 36).

29 Read Dep. 44 (the NAACP “ was ready to go into Federal 
court and get a court order, as happened in Kalamazoo” ) .

so The Board distributed a series of questions and answers to the 
community that explained why integration should not come only 
after a lawsuit:

Waiting for what appears the inevitable only flames passions 
and contributes to the difficulties of an orderly transition from 
a segregated to a desegregated school system. Firmly estab­
lished legal precedents mandate a change. . . . Waiting for a



11

Given these circumstances, the Board and the union 
entered contract negotiations in 1972 determined to find 
a solution to the problem that seniority-based layoffs posed 
to fulfillment of their mutual commitment to increased 
hiring of black teachers.31 Under the proposal they 
adopted,32 * which ultimately was incorporated in Article 
XII of the collective bargaining agreement,38 teachers 
would still be laid off in reverse seniority order within 
their building or grouping, except minority teachers would 
not be laid off at a percentage rate greater than their 
percentage representation in the school system prior to 
layoff. Teacher certification would still be relevant in all 
assignments,34 and previous teaching assignments and edu­
cation might be relevant to a layoff decision in a given 
case.35 * * Thus, despite the operation of the new layoff pro­

court order emphasizes to many that we are quite willing to 
disobey the law until the court orders us not to disobey the law.

Question 4, Information Circulated to Jackson Citizens April 10, 
1972 Concerning School Integration Efforts, Plaintiffs’ Ex. 8, 1-2, 
Joint Pre-Trial Order, Jackson I.

31 Read Dep. 28-39.

32 The Board first proposed a complete freeze on minority layoffs 
until the goal of 15% minority staff was reached. Curtis Testi­
mony, Jackson I Tr. 31. The union proposed a less drastic measure 
effecting a limited modification of seniority rights designed to 
protect the gains made in desegregating the system’s teaching staff 
by ensuring consideration of race in layoff decisions. Id. at 35.

3:3 Defendants’ Br. 3-4. This clause has been included in all 
successive labor contracts between the teachers’ union and the 
Board. J.A. 12 at n.2.

34 Article VII A, 1972-73 Professional Negotiations Agreement,
J.A. 14.

186 Article IX of the 1972-73 professional negotiations agreement
established that, in addition to seniority, a teacher’s building assign­
ment, grouping (TEAM leaders, art, music, physical education, and 
various special education and vocational educational subdivisions, 
etc.), subject, grade level, speciality type, type of teaching certifica­
tion, identified majors and minors of academic study and past



12

tections for minority teachers, the new contract did not 
establish an absolute racial preference.* 38 The teachers in 
the union ultimately ratified the agreement, including the 
minority layoff protections, because such protections were 
deemed necessary to “ correct the past problems” and 
“without some modifications in the seniority system, we 
certainly weren’t going to achieve the goals we were talk­
ing about before.”  37

In the spring of 1973, the Board of Education notified 
teachers that reductions in staff would be necessary and 
some teachers were laid off.38 The layoffs were effected 
by following the provisions in the 1972-73 professional 
negotiations agreement.39 Layoffs again were necessary in 
the spring of 1974,40 but this time the Board refused to 
implement fully the minority layoff provisions in the 
agreement.41 Instead, the Board laid off white probation­
ary teachers but not white tenured teachers even though 
this caused a reduction in the number of minority teach­

successful teaching assignments all could play a role in the deter­
mination whether to displace the teacher, and any one of the factors 
ultimately might control whether the teacher was laid off particu­
larly at the middle school and high school levels. J.A. 23-24. 
Moreover, in certain circumstances, the bumping provisions of 
Article IX, J.A. 26-27, guaranteed more senior teachers the right 
to assume positions held by less senior teachers for which they 
were certified and qualified.

38 Defendants’ Br. 22.

37 Curtis Testimony, Jackson 1 Tr. 42. Defendants’ Br. 5 ( “ ft]he 
leadership explained that a staff racial mix was educationally sound 
and that the system needed black teachers. It was also noted that 
the new layoff policy was partially designed to remedy past dis­
criminatory policies” ) .

38 Phelps Aff. 2. Defendants’ Br. 5.

89 Id.

40 Defendants’ Br. 5. See also Curtis Testimony, Jackson I Tr. 51.
41 Id.



13

ers.42 As a consequence, two minority teachers, who 
should have been retained under the layoff provision in 
the contract, joined the Jackson Education Association 
in filing Jackson I, the first of the three lawsuits con­
cerning the validity of the minority layoff protections.43 
As earlier discussed, all claims ultimately were dismissed 
in Jackson I, but the constitutionality of the layoff pro­
vision was upheld by the state court in Jackson II.

In layoffs after Jackson II, the Board adhered to the 
terms of the collectively-bargained layoff provision, a 
course of conduct commanded by the state court’s deci­
sion. This course of conduct ultimately led to petitioners’ 
receipt of layoff notices in 1976 and 1981 44 and to this 
lawsuit.

SUMMARY OF ARGUMENT

The Jackson Board of Education has a compelling in­
terest in eliminating student and faculty segregation in 
the public schools and an equally compelling interest in 
providing its public school students with an integrated 
education in which all students have equal access to a 
racially diverse educational experience. The Jackson 
Board of Education initially sought to achieve its goal of 
integrating the Jackson faculty primarily through aggres­
sive efforts to recruit new minority faculty. The record 
in this case shows, however, that seniority based layoffs 
in the early seventies threatened to “wipe out”  entirely 
the minimal gains in minority hiring the Board had been 
able to make, and continued application of a rigid sen­
iority-based layoff clause would impede significantly fu­
ture recruiting efforts.

In this context, a collectively bargained contract provi­
sion that protects some newer minority teachers from lay-

42 Defendants’ Br. 5. See also Curtis Testimony, Jackson I  Tr. 52.
43 Defendants’ Br. 6.

44 Id.



14

offs clearly was necessary to advance the Board’s com­
pelling purposes. Moreover, the layoff provision challenged 
in this case is carefully crafted to serve the Board’s im­
portant objectives and does not infringe unnecessarily the 
rights of non-minority teachers. The layoff provision rep­
resents a slight modification of the existing seniority sys­
tem that has been ratified consistently by the teachers’ 
union. Race is not the sole factor that determines who 
will be laid off under the contract. Other factors, includ­
ing an individual’s teaching certification, qualifications 
and current assignment may enter into an individual lay­
off decision. Minority teachers are only protected from 
layoff to the extent necessary to assure the continued suc­
cess of the school system’s recruiting efforts. Furthermore, 
the layoff provision is not in force indefinitely. It has 
been reviewed several times since its adoption in 1972, 
and it is again subject to renegotiation in 1988 when the 
current collective bargaining agreement expires. For all 
these reasons, it is clear that the layoff provision chal­
lenged here is constitutional, and the judgment below 
should be affirmed.

Alternatively, the Court may now wish to exercise its 
discretion to decline further review of this case. Careful 
examination of the record below reveals that the question 
tendered by petitioners for review is not in fact pre­
sented. This case furthermore does not present a new, 
important issue for this Court to decide. Rather, it is 
clear from the record that this is a school desegregation 
case that concerns only questions well settled in this 
Court’s previous decisions. In addition, there is some am­
biguity regarding the content of the record now before 
this Court. This ambiguity may lead the Court to decide 
it is inappropriate to attempt to resolve any significant 
constitutional question through a review of this case. Fi­
nally, it appears that the lower court may have abused 
its discretion by deciding a constitutional question that 
may well have been mooted if state law claims made by 
petitioners had been resolved.



ARGUMENT
I. THE LOWER COURTS’ DETERMINATION THAT 

THE SCHOOL BOARD ACTED CONSTITUTION­
ALLY SHOULD BE AFFIRMED

This Court appears to be divided regarding the stand­
ards against which the Board’s actions in this case should 
be tested. Some Members of the Court would hold that, 
inasmuch as the layoff provision at issue classifies persons 
on the basis of race, the provision must be subjected to 
the strictest scrutiny, i.e., that the provision must serve 
a “ compelling” governmental interest and the provision 
must be “ necessary” to the achievement of that interest.45 
Other Members of the Court would hold that where, as 
here, the racial classifications are “ benign,” the layoff 
provision should be tested by a less exacting standard, i.e., 
that it serve an “ important”  governmental objective and 
be “ substantially related” to the achievement of that objec­
tive.46 The Court need not determine which of the two 
standards should apply here. The layoff provision at 
issue in this case easily meets the stricter standard. It 
was designed to serve not one but two compelling govern­
mental interests, and it was necessary to achieve either 
of those interests.

A. The Layoff Provision was Designed by the School 
Board to Meet its Duty to Desegregate the Schools 
as well as to Improve Education in the Schools 
Through a More Diversified Faculty.

In order to review the constitutionality of the chal­
lenged layoff provision, the Court must look beyond the 
facts surrounding the layoffs of these petitioners in 1976 
or 1981. Rather, as the district judge recognized, “ the

45 Regents of the University of California v. Bakke, 438 U.S. 
265, 291 (1978) (Powell, J.) ; Fullilove v. Klutznick, 448 U.S. 448, 
523 (1980) (Stewart, J., dissenting, joined by Rehnquist, J . ) ; id. 
at 537 (Stevens, J., dissenting).

46 Bakke, 438 U.S. at 359 (Brennan, J., joined by White, Marshall 
and Blackmun, J .J .); Fullilove, 448 U.S. at 518-19 (Marshall, J., 
joined by Brennan, White, and Blackmun, J.J.).

15



16

roots of this case reach nearly thirty (30) years into the 
past.”  Pet. App. 20a. And, as the judge further recog­
nized, the only way the Board— and now this Court—  
may “ com[e] to grips with the problems posed by this 
case,”  is to “ review the past.”  Id. That past is not a 
flattering one to the Board, but it is one the Board has 
taken significant steps to correct.

The record demonstrates that until 1953 not a single 
black teacher was hired in the Jackson school system. In­
deed, as late as 1968-69 fewer than 25 black teachers had 
been hired, representing only 3.9% of the total faculty of 
610. Even then, these few black teachers were dispropor­
tionately assigned to predominantly black schools. Fur­
thermore, as late as 1968-69— when the overall composi­
tion of the Jackson system’s student body was approxi­
mately 15% black— there were still schools in the system 
that had no black students and some that had almost no 
white students. Given this history, it is not surprising 
that at about this same time the Board was faced with 
findings of discrimination against it by the Michigan 
Civil Rights Commission, threats of lawsuits to require 
desegregation of its schools, and racial disturbances in the 
schools. It is also not surprising that the Board decided 
it had to take some action to address this problem; indeed, 
it would have been irresponsible had the Board decided 
otherwise.

Under these circumstances, the Board decided two 
things: first, that it arguably had a legal obligation to 
desegregate the Jaekson schools; 47 and second, that such 
desegregation, whether legally required, was a step that

47 See note 30 supra. Whether the Board was correct in its 
assessment of its duty under federal law, at least one Michigan 
federal court has suggested that Michigan law required the 
Board to act affirmatively to integrate racially segregated schools 
even if the segregation was not caused by the school district. Berry 
v. School Dist. o f Benton Harbor, 467 F. Supp. at 733-734 (“ any 
school official who fails to remedy segregation in his district, no 
matter the cause of the segregation, is committing an act of dis­
crimination in violation of . . . the Michigan Constitution” ) .



17

was “ educationally sound and beneficial” and necessary to 
assure equality of education in the schools.48 Both of these 
purposes required the Board to take steps to increase the 
number of minority faculty in the school system,49 and 
both constitute compelling governmental interests.

There can hardly be doubt at this late date that the 
first of the Board’s purposes— taking affirmative steps to 
desegregate its schools and rid them of the last vestiges of 
racial discrimination— constitutes a compelling govern­
mental interest. Indeed, this objective constitutes a fun­
damental national policy of the highest order;50 Further, it 
is well settled that local school boards may “voluntarily 
adopt desegregation plans which [make] express refer­
ence to race if this [is] necessary to remedy the effects 
of past discrimination. McDaniel v. Barresi, 402 U.S. 39 
(1971).”  51 Any other rule, i.e., one that prohibited school 
boards from desegregating their schools until they were 
ordered to do so by a court, would be directly contrary to 
this Court’s holding in Brown II that “ [s]chool authori­
ties have the primary responsibility for elucidating, as­
sessing, and solving [such] problems . . . .”  Brown v.

48 &ee note 22 supra. The Board’s determination was consistent 
with and presumably based in part on 1966 findings of the State 
Board of Education that “ segregation . . . interferes with . . .  the 
equal opportunity guarantee of this State” and fails “ to provide 
maximum opportunity for the full development of human resources.” 
Michigan Guidelines, note 20 supra.

48 Desegregating faculties is a key component of school desegrega­
tion. See United States v. Montgomery County Bd. o f Educ., 395 
U.S. 225, 231-32 (1969) ( “ faculty . . . desegregation [is] a goal 
that we have recognized to be an important aspect of the task of 
achieving a public school system wholly free from racial discrimina­
tion” ) ; Singleton v. Jackson Municipal Separate School Dist., 419 
F.2d 1211, 1217-18 (5th Cir. 1969) (en banc) (per curiam), cert, 
denied, 396 U.S. 1031 (1970) (faculty desegregation plan ordered 
as the first step in conversion to a unitary school system).

50 Bob Jones Univ. v. United States, 461 U.S. 574, 604 (1983) 
( “ [governm ent has a fundamental, overriding interest in eradicat­
ing racial discrimination in education” ).

61 Bakke, 438 U.S. at 362-63 (Brennan, J., joined by White, 
Marshall and Blackmun, JJ.).



18

Board of Education, 349 U.S. 294, 299 (1955) (emphasis 
supplied). It is only where “ school authorities fail in 
their affirmative obligations”  that “ judicial authority may 
be invoked.” 52

The Board’s laudable decision in this case was, there­
fore, to take steps to set right its own previous history 
before a court ordered it to do so. As the Board stated 
publicly:

Waiting for what appears the inevitable only flames 
passions and contributes to the difficulties of an or­
derly transition from a segregated to a desegregated 
school system . . . .  Waiting for a court order em­
phasizes to many that we are quite willing to dis­
obey the law until the court orders us not to dis­
obey the law.53

It is true, of course, that the Board never publicly 
announced itself guilty of past illegal conduct; but it 
would be unrealistic and counterproductive to require a 
school board to confess illegality in order for it to be 
eligible to take steps necessary to improve its students’ 
education.54 As Justice Brennan wrote for the Court in 
Weber concerning Title VII of the Civil Rights Act of * 68

62 Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15 
(1971). Any other rule would also be contrary to this Court’s 
strong commitment to voluntary compliance with the purposes of 
the Fourteenth Amendment. See W.R. Grace & Co. v. Int’l Union 
of United Rubber Workers, 461 U.S. 757 (1983).

68 See note 30, supra. This approach by the Board anticipated 
Justice Brennan’s opinion in Bakke:

[0 ]  ur society and jurisprudence have always stressed the value 
o f voluntary efforts to further the objectives of the law. 
Judicial intervention is a last resort to achieve the cessation 
of illegal conduct or the remedying of its effects rather than 
a prerequisite to action.

438 U.S. at 364 (emphasis supplied) (citation omitted).

54 Cf. United Steelworkers of Am. v. Weber, 443 U.S. 193, 210-11 
(1979) (Blackmun, J., concurring) (company that had “ arguably” 
engaged in past discriminatory practices could legitimately take 
steps to remedy such practices).



1964, “ it would be ironic indeed if a law triggered by a 
Nation’s concern over centuries of racial injustice . . . 
constituted the first legislative prohibition of all volun­
tary, private, race-conscious efforts to abolish traditional 
patterns of racial segregation and hierarchy.” 443 U.S. 
at 204. The same may be said with even greater force 
of the Fourteenth Amendment: it would be a supreme 
irony if that Amendment— which constitutionalized this 
nation’s concern over centuries of racial injustice— were 
read to prohibit a state’s efforts to set right part of that 
injustice.

This record shows furthermore that the Board in­
tended to serve a second compelling governmental inter­
est— improving education in the Jackson schools through 
the integration and diversification of its faculty. The 
Court’s unanimous decision in Sivann v. Charlotte-Meek- 
lenburg Board of Education validated the special power 
of school boards to adopt voluntary race-conscious educa­
tional measures:

School authorities are traditionally charged with 
broad power to formulate and implement educational 
policy and might well conclude, for example, that in 
order to prepare students to live in a pluralistic so­
ciety each school should have a prescribed ratio of 
Negro to white students reflecting the proportion for 
the district as a whole. To do this as an educational 
policy is within the broad discretionary powers of 
school authorities . . . .

402 U.S. at 16 (emphasis supplied). The Court under­
scored this view in North Carolina State Board of Educa­
tion v. Swann, 402 U.S. 43 (1971), when it declared that 
“ school authorities have wide discretion in formulating 
school policy, and . . .  as a matter of educational policy 
school authorities may well conclude that some kind of 
racial balance in the schools is desirable quite apart from 
any constitutional requirements.” Id. at 45 (emphasis 
supplied).85 While these decisions deal with a school 55

19

55 The educational value of racial diversity in schools was also 
at the heart of Justice Powell’s decision in Balike. There he recog­



20

board’s authority to improve education through develop­
ment of student-body diversity, it necessarily follows, 
as the lower courts have held unanimously, that a school 
board’s authority extends as well to the development of 
diversity in the faculty.™

These then are the two interests the Board of Educa­
tion intended to serve when it took steps— including 
adopting the challenged layoff provision— to hire and 56

nized a state university’s compelling interest in achieving a racially 
diverse student body. 438 U.S. at 314. Such diversity is important, 
Justice Powell explained, as a means to promote other important 
societal interests, such as students’ improved ability to live and 
work in a heterogeneous society. Id. at 312-13.

The latest reaffirmation of the compelling governmental interest 
in promoting racial and cultural diversity in public schools appeared 
in Washington v. Seattle School District No. 1, 458 U.S. 457 (1982). 
In Seattle, the Court held that a state initiative limiting a school 
board’s power voluntarily to transport students to promote racial 
integration violated the Equal Protection Clause. In so holding, the 
Court specifically emphasized a school board’s interest in and author­
ity for developing diversity within a school:

[W]hen [the children’s] environment is largely shaped by 
members of different racial and cultural groups minority chil­
dren can achieve their full measure o f success only if  they 
learn to function in— and are fully accepted by— the larger 
community. Attending an ethnically diverse school may help 
accomplish this goal by preparing minority children “ for citi­
zenship in our pluralistic society,”  . . . while, we may hope, 
teaching members of the racial majority to “ live in harmony 
and mutual respect” with children of minority heritage.

458 U.S. at 472-73 (citations omitted).

56 See, e.g., Kromnick v. School Dist. of Philadelphia, 739 F.2d 
894, 906 (3d Cir. 1984), cert, denied, 105 S. Ct. 782 (1985) 
(upholding a faculty desegregation plan on the grounds that “ a 
school district is competent to choose” such a plan “ to further 
educational goals” ) ; Zaslawsky v. Bd. of Educ., 610 F.2d 661, 664 
(9th Cir. 1979) (upholding faculty integration plan voluntarily 
adopted by school board against challenge by white teachers) ; 
Porcelli v. Titus, 431 F.2d 1254, 1257 (3d Cir. 1970), cert, denied, 
402 U.S. 944 (1971) (upholding plan for hiring a supervisory 
faculty adopted voluntarily by school board to bring proportion of 
black supervisors closer to that of black students).



21

maintain greater numbers of minority faculty in the 
school system. Since these two interests are compelling 
governmental purposes within the meaning of this 
Court’s decisions, the only remaining issue is whether 
the particular provision that occasioned petitioners’ lay­
offs was necessary to achieve those purposes.

B. The Steps Taken by the School Board, Including Its 
Agreement to the Layoff Provision, Were Reason­
able and Necessary to Achieve Desegregation of 
the Schools and Diversification of the Faculty.

Given the Board’s two purposes— desegregating its 
schools and diversifying its faculty in order to improve 
its students’ education— it is unquestionable that the 
Board had to take some steps to recruit and maintain 
additional minority faculty members. As earlier dis­
cussed,'57 * the school superintendent and the president of 
the teachers’ union recognized that aggressive recruiting 
efforts alone would not result in an integrated faculty. 
Without some means for assuring new minority hirees 
that they would have some measure of job security, the 
Board would be prevented from recruiting sufficient num­
bers of minority teachers. Moreover, the operation of 
the layoff clause threatened to wipe out even the minimal 
gains in hiring that had been made.88 It was these cir­
cumstances that caused the Board and the union to agree 
on the necessity of the layoff provision here at issue.

57 See p. 10, supra.

ss See discussion at notes 25-27, supra. Petitioners contend that 
a seniority-based layoff would not have resulted in a substantial 
diminution in the percentage of minority teachers on the staff in 
1981. Petitioners’ Br. 37. They base this claim on a reading of the 
1981 seniority list included in the Joint Appendix. J.A. 57-100. 
Because qualifications and certifications also enter into layoff judg­
ments, counting the names on the 1981 list backwards does not tell 
this Qourt anything reliable about which teachers of what race would 
or would not have been laid off. In any event, given its purposes, it 
was surely within the Board’s discretion to determine that no 
diminution of minority faculty was acceptable.



22
The approach adopted by the Board and the union is 

“ limited and properly tailored” and its impact on peti­
tioners is “ an incidental consequence of the program, not 
part of its objective.”  Fullilove v. Klutznick, 448 U.S. at 
484. As the Chief Justice noted in Fullilove, “ [i]t  is not 
a constitutional defect in [such a] program that it may 
disappoint the expectations of non-minority [individuals]. 
When effectuating a limited and properly tailored remedy 
to cure the effects of prior discrimination, such a ‘shar­
ing of the burden’ by innocent parties is not impermissi­
ble.”  Id. (quoting Franks v. Bowman Transportation Co., 
424 U.S. 747, 777 (1976)). Several factors demonstrate 
the careful tailoring of the Board’s actions in this case.

First, the layoff provision does not contravene vested 
contractual rights of the petitioners or of any other 
teacher.59 This Court has expressly recognized that par­
ties to a collective bargaining agreement may agree to 
“ enhanc[e] the seniority status of certain employees” 
in order to further “public policy interests” even if no 
statute requires such action and even if the enhancement 
of some employees’ seniority rights would operate to dis­
turb the expectations of others.60

B9 It is well settled that employees do not have “vested property 
rights” in a particular seniority system. Cooper and Sobol, Sen­
iority Testing Under Fair Employment Laws: A General Approach 
to Objective Criteria of Hiring and Promotion, 82 Harv. L. Rev. 
1598, 1605 (1969) ; Ford Motor Co. v. Huffman, 345 U.S. 330 
(1953) (approving good faith modification of seniority rights) ; 
Cooper v. General Motors Corp., 651 F.2d 249 (5th Cir. 1981) 
(seniority does not exist apart from the collective bargaining agree­
ment) . See generally Brief for Respondents at 34-41. Furthermore, 
the court in Jackson II specifically found that the layoff provisions 
here at issue do not conflict with any tenure rights recognized under 
Michigan law. J.A. 46-47.

60 Franks v. Bowman Transp., 424 U.S. at 778-79. Moreover, the 
Court has acknowledged that this is particularly so where, as in 
this case, the purpose o f the modification of seniority rights is to 
“ ameliorat[e] the effects of past racial discrimination, a national 
policy objective of the ‘highest priority’ .”  Id. at 779 (quoting



23

Second, the fact that the Board and the teachers’ union 
have agreed year after year to the layoff provisions at 
issue is an indication that the provision— the product of 
give and take in the collective bargaining process-—has 
been tailored as closely as possible to meet the purpose 
to be achieved.81 Nothing in the record remotely sug­
gests that the union has not fully and fairly represented 
the interests of its members (which include petitioners) 
when it has negotiated and approved the layoff provisions. 
Moreover, Jackson teachers have been almost unanimous 
in their support of the Board’s objective of increasing the 
numbers of minority faculty.’82

Third, the layoff provision is not absolute and is not 
based on race alone. Rather, under the collective bargain­
ing agreement, a variety of other factors, including teach­
ers’ certification, qualifications and grade assignment, 
may enter into a layoff decision and any of these factors 
may be determinative of a layoff in a given case. In 
addition, all teachers, both black and white, are subject 
to layoff under the terms of Article XII.61 62 63 Minority 
teachers are laid off on the same terms as majority 
teachers, i.e., in proportion to their respective percentage 
representations on the teaching staff.

Pellicer v. Bhd. of Ry. and S.S. Clerks, 217 F.2d 205 (5th Cir. 
1954), cert, denied, 349 U.S. 912 (1955)).

61 Contracts including the challenged provision have been ratified 
six times since 1972 when the provision was first adopted. Brief 
for Respondents at 32 n.24. As this Court has recognized, seniority 
systems that reflect the “give and take of free collective bargaining 
. . . inevitably come in all shapes and sizes,”  and “ [i]t  does not 
behoove a court to second-guess either the process or its products.” 
California Brewers Ass’n v. Bryant, 444 U.S. 596, 609 (1980).

62 See note 22, supra. It should also be remembered that in 
Jackson I  and Jackson 11 the union sued on behalf of its members 
to enforce the provisions here at issue.

63 Thus, although the layoff provision accords all minority teachers 
a “plus,”  it is the combined weight of ethnicity, certification and 
qualifications that ultimately determines which teachers are subject 
to layoff under the provision. See generally Bakke, 438 U.S at 
315-19.



24

Finally, the layoff clause is narrowly tailored in that 
it is of limited duration and is periodically reviewed. 
The current collective bargaining agreement expires in 
1988. If at that time the Board or the union decides 
that minority-teacher protections are no longer necessary 
to desegregate the schools or to diversify the faculty, 
either party is entirely free to negotiate modifications to 
the provisions here at issue; there is no reason to expect 
that they will not continue to monitor the necessity for 
these provisions as they have in the past.

Thus, the school board in this case, validated by the 
periodic agreement from the teachers’ union, has taken 
reasonable and necessary steps to achieve government in­
terests of paramount importance. Those steps may not 
have been the only approach that the Board and the un­
ion might have chosen to solve the very difficult problem 
they faced, but their approach or something like it was 
necessary if the school district’s compelling need to re­
cruit and maintain black teachers was to be met. Some 
degree of deference is due to the judgment that the 
Board and the union reached together on this matter. 
It is, after all, the school hoard that is entrusted in the 
first instance with the duty both to “ formulate and 
implement educational policy” 64 and to “ elucidatfe], 
asses[s], and solvfe]”  the problem of school desegrega­
tion.615 That is the duty the Board has met in this case. * 65

94 Swann, 402 U.S. at 16.
65 Brown II, 349 U.S. at 299. In difficult matters such as these, 

“ [t]here is no universal answer to [such] complex problems . . . ; 
there is obviously no one plan that will do the job in every case.” 
Milliken v. Bradley, 433 U.S. 267, 287 (1977) (quoting Green v. 
County School Board, 391 U.S. 430, 439 (1968)). In choosing the 
plan to do the job, therefore, at least where the plan chosen by the 
board is reasonable, is carefully tailored, has been consistently 
approved by the union, and has proved workable, this Court should 
be reluctant to strike it down as unconstitutional. In such circum­
stances, as this Court has often made clear, local school boards 
must be given a measure of discretion in setting the educational 
goals for their district’s school children. Bd. of Educ. of Island 
Trees v. Pico, 457 U.S. 853, 863 (1982) (plurality opinion) (Bren-



25

We urge the Court to affirm the constitutionality of its 
actions.

II. ALTERNATIVELY, THE WRIT SHOULD BE DIS­
MISSED AS IMPROVIDENTLY GRANTED

While the constitutionality of the Board’s actions is 
clear on this record, nevertheless there are significant 
reasons why this Court may choose to decline review of 
this case: (a) the record does not raise the question
presented for review in the petition for certiorari; (b) 
there is ambiguity as to the facts which properly may 
be considered in reviewing the Board’s actions; and 
(c) the lower courts abused their discretion in deciding 
the constitutionality of the Board’s actions because the 
petitioners’ state-law claims may moot the constitutional 
issue. We briefly summarize each of these reasons below.

A. The Record Does Not Present the Question Raised 
in the Petition.

The question petitioners raised in their petition and 
have now briefed on the merits is whether “ the Constitu­
tion tolerate [s] racial preferences for teacher layoffs 
adopted by a public employer in the absence of findings 
of past discrimination, based solely upon a disparity be­
tween respective percentages of minority faculty and stu­
dents.”  For at least four reasons, that question is not 
presented by the record before this Court.

First, as petitioners’ complaint in the district court 
alleged, the layoff provisions of Article XII were certainly 
not “ based solely” upon a percentage disparity between 
minority faculty and students, but were based primarily

nan, Marshall, and Stevens, JJ.) ( “ Court has long recognized 
that local school boards have broad discretion in the management 
of school affairs” ) ; Id. at 890 (Burger, C.J., Powell, Rehnquist, 
and O’Connor, JJ., dissenting) (school boards rather than judges 
should exercise discretion in matters of educational policy ); Id. 
at 894 (Powell, J„ dissenting) ( “ [sjtates and locally elected 
school boards should have responsibility for determining the educa­
tional policy of the public schools” ).



26

on two purposes: remedying past societal discrimina­
tion 66 and assuring the presence of “ role models for 
minority students”  in the school system.07 More specifi­
cally, as respondents’ brief in the district court stated,08 69 
“ the new layoff policy was partially designed to cor­
rect past discriminatory policies” and “ one of the reasons 
why both the School District and the association volun­
tarily agreed to the contractual layoff provision”  was to 
assure “ the exposure of students to [diverse] groups 
. . . 60 Hence, on no construction of this record can it
fairly be said that the layoff provisions were “ based 
solely”  on perceived percentage disparities between mi­
nority students and faculties.

Second, as our earlier discussion demonstrates, not 
only were the layoffs in this case based on considerations 
other than percentage disparities between minority stu­
dents and faculty, but in fact those layoffs were almost 
totally unrelated to such disparities. Pursuant to Article 
XII of the collective bargaining agreement— the article 
that triggered the layoffs at issue in this case— layoffs 
of more senior white teachers were authorized only to 
assure “ that at no time will there be a greater percen­
tage of minority personnel layoffs than the current per­
centage of minority personnel employed at the time of the 
layoffs.”  In other words, Article XII operated simply to 
maintain the proportion of minority faculty at whatever 
level it stood when the layoffs occurred.70 Contrary to

66 Complaint j[ 20.

67 Complaint 32.

68 As earlier discussed, the district court adopted the statement 
of facts from respondents’ summary judgment brief and noted that 
those facts were not disputed by the petitioners. Pet. App. 20a.

69 Defendants’ Br. 5, 32.

70 According to data from outside the record cited by petitioners, 
the percentage of minority faculty in 1980-81 when most of the 
disputed layoffs occurred was 13.4%, J.A. 108, and the percentage 
of minority students was 24.2%. J.A. 104. Thus, the percentage



27

the implications of the question raised by petitioners, 
there is no authority in the Board, and none was exer­
cised here, to lay off teachers in order to achieve a parity 
between the percentage of minority faculty and students.

Third, and again contrary to the implications of the 
question posed by petitioners, race is not the sole factor 
used to determine layoffs. Rather, the collective bargain­
ing agreement requires the Board to take into account 
such factors as curriculum needs and the staffing and 
educational requirements of particular schools— along 
with race— in making most layoff determinations, par­
ticularly at the middle school and high school levels.71

Finally, although the question presented asserts that 
the Board acted “ in the absence of findings of past dis­
crimination,”  the record shows that not to be so. The 
state court in the Jackson II proceeding specifically found 
that past societal discrimination had contributed to the 
underrepresentation of minority faculty in the Jackson 
school system and, furthermore, the Board itself deter­
mined that its past policies may well have been discrimi­
natory.72

This Court may have granted certiorari believing that 
this case raised a new, important issue that the Court 
had not had an opportunity to review before, i.e., whether 
a state employer may constitutionally lay off employees 
for racial reasons, solely to achieve some arbitrary racial 
balance in its work force, and without any indication of 
past discrimination. As we have shown, no such issue is 
raised in this case. This is a desegregation case in 
which a school board has taken balanced steps to deseg­
regate and diversify its faculty to improve its students’

rate of minority teachers maintained by the layoff provision was 
substantially below the percentage of minority students in the 
student body.

71 See note 35 and p. 23, supra.

72 See p. 18, supra.



28

education. This situation is one the Court has dealt with 
time and again, and it is one the Court has specifically 
declined to review anew in several recent cases.73 That 
being so, dismissal of the writ is appropriate.74

B. The Scope of the Record is Unclear.

Although the conduct of the parties in the trial court 
apparently established the content of the record, this 
matter is not free from doubt. No specific stipulation of 
facts was filed by the parties in the trial court and no 
explicit incorporation of the Jackson I  and Jackson II 
records occurred. Instead, both parties simply filed sum­
mary judgment briefs in which they proffered a “ state­
ment of facts”  clearly drawn from matters in Jackson I 
and Jackson II. This procedure arguably leaves unclear 
which matters this Court may consider in deciding the 
issue raised by the case. In such circumstances, with crit­
ical ambiguity affecting resolution of a fundamental con­

73 See Kromnick v. School Dist. o f Philadelphia, 739 F.2d at 905 
( “ [t]he integration of faculty is a means to improve the quality of 
education of those who have suffered the effects of racial prejudice 
and segregation” ) ; Arthur v. Nyquist, 712 F.2d 816, 823 (2d Cir. 
1983), cert, denied, 104 S. Ct. 3555 (1984) (upholding layoff 
restrictions giving preference to minority teachers as an “ equitable 
solution that would allow the school children to “ enjoy the benefits 
o f a significantly . . . integrated faculty” ) ; Morgan v. O’Bryant, 
671 F .2d 23, 27 (1st Cir.), cert, denied, 459 U.S. 827 (1982) (up­
holding layoff restrictions giving preference to minority teachers in 
order to protect the rights of the school children to an equal 
education).

74 See Ramsey v. New York, 440 U.S. 444 (1979) (per curiam) 
(certiorari dismissed as improvidently granted because “ it has 
become evident that on the record in this case it cannot be said 
with any degree of certainty that this question is actually pre­
sented ) ;  Belcher v. Stengel, 429 U.S. 118 (1976) (per curiam) 
(certiorari dismissed because the question framed in the petition 
was not presented by the record ); McClanahan v. Morauer & 
Hartzel, 404 U.S. 16 (1971) (per curiam) (same) ; Needelman v. 
United States, 362 U.S. 600 (1960) (per curiam) (same).



29

stitutional question, it is well settled that the Court 
should not undertake review o f the question.75

C. The Constitutional Issue Should Not Have Been 
Decided.

Even if a constitutional issue which the Court wishes 
to review is fully and fairly presented on the record, 
there remains one final reason why the issue may not be 
appropriate for review by this Court. Petitioners, in 
addition to raising the constitutional issue in their com­
plaint, also alleged numerous violations of state law 
and a violation of the collective bargaining agreement 
itself.76 These claims were renewed by petitioners in 
their brief in the court of appeals.77 Had any of these 
pendent state law claims been sustained by the lower 
courts, those claims would have obviated the need to 
reach the constitutional issue now presented to this 
Court. In such circumstances, it is well settled that the 
constitutional issue should not have been reached.78

75 Mitchell v. Oregon Frozen Foods Co., 361 U.S. 231 (1960) ( “ [i]n  
view o f ambiguities in the record as to the issues sought to be 
tendered, . . . the writ of certiorari is dismissed as improvidently 
granted” ). See Minnick v. California, Dept, o f Corrections, 452 
U.S. 105, 127 (1981) ( “ because of significant ambiguities in the 
record, the writ of certiorari is dismissed) ; Cowgill v. California, 
396 U.S. 371, 372 (1970) (Harlan, J., concurring) (constitutional 
issue dismissed ‘ based on the inadequacy of the record for deciding 
the question presented” ) ; Rescue Army v. Municipal Court, 331 
U.S. 549, 584 (1947) (appeal dismissed where underlying constitu­
tional issue not presented “ in clean-cut and concrete form” ) .

76 Complaint fffj 1, 15, 17, 18 and 19 (asserting violations of the 
state tenure act and a failure to “ follow the layoff procedures out­
lined in the collective bargaining agreement” ).

77 Plaintiffs-Appellants’ Br. 19 (asserting violation of the Michi­
gan Teacher Tenure Act).

78 See, e.g., Spector Motor Services, Inc. v. McLaughlin, 323 U.S. 
101, 105 (1944) ( ‘ [ i ] f  there is one doctrine more deeply rooted than 
any other in the process of constitutional adjudication, it is that we 
ought not to pass on questions of constitutionality . . . unless such 
adjudication is unavoidable” ).



30

Rather, it was an abuse of discretion for the lower courts 
to fail to entertain the state law claims first; only if 
those claims did not fully resolve the matter should the 
constitutional issue have been considered.79

CONCLUSION

For all the foregoing reasons, this Court should affirm 
the judgment below or, alternatively, should dismiss the 
writ as improvidently granted.

Respectfully submitted,

James Robertson 
Harold R. Tyler, Jr. 

Co-Chairmen
Norman Redlich, Trustee 
Thomas D. Barr, Trustee 
W illiam L. Robinson 
Richard T. Seymour 
Norman J. Chachkin 

Lawyers’ Committee for 
Civil Rights Under Law 

1400 Eye Street, N.W. 
Washington, D.C. 20005 
(202) 371-1212

Robert A llen Sedler 
Burt Neuborne 
E. Richard Larsen 

A merican Civil Liberties 
Union Foundation 

132 West 43rd Street 
New York, New York 10036 
(212) 944-9800

Walter A. Smith , Jr.*
R. Claire Guthrie 
Sue A. Kaplan 

Hogan & Hartson 
815 Connecticut Ave., N.W. 
Washington, D.C. 20006 
(202) 331-4500 

Counsel for Amici Curiae

* Counsel of Record

79 Schmidt v. Oakland Unified School Dist., 457 U.S. 594 
(1982); Hagans v. Lavine, 415 U.S. 528, 547 (1974). Alternatively, 
the district court might simply have relegated the parties to the 
state courts for resolution of both the state-law claims and the 
constitutional claims. We take no position on the question whether 
the lower court should have decided the state law claims first, or, 
alternatively, have decided no claims at all. Our position is simply 
that in no event should the constitutional issue have been reached.