Supplemental Appendix to Petition for a Writ of Certiorari

    No.

<31n tEije

Supreme Court of tljr ^utteh J^tatrs 
(October Cerm, 1987

SOUTH BEND
COMMUNITY SCHOOL CORPORATION,

Petitioner,
v.

ELM ER BRITTON, et al.,
Respondents.

SOUTH BEND
COMMUNITY SCHOOL CORPORATION, et al.,

Petitioners,
v.

JULIE ANDREW S, et al.,
Respondents.

A PPEN D IX TO
PETITION FOR A  W RIT OF C ERTIO RARI 

TO THE UNITED STATES COURT OF A PPE A LS 
FOR THE SEVENTH CIRCUIT

Stanley C. Fickle 
Counsel o f Record

Franklin A. Morse, II 
Gregory L. K elly 
Lynn C. Tyler 
Barnes & Thornburg 

600 1st Source Bank Center 
100 North Michigan Street 
South Bend, Indiana 46601 
Telephone: (219) 233-1171

August 14, 1987 Counsel for  Petitioners

Pandick Technologies, Inc., Chicago •  (312) 236-0200



TABLE OF CONTENTS

Page

Constitutional and Statutory Provisions.........................  la
Judgment of Seventh Circuit Court of Appeals en banc 
dated May 18, 1987 ...........................................................  2a
Opinion of Seventh Circuit Court of Appeals en banc 
dated May 18, 1987 ...........................................................  4a
Order of Seventh Circuit Court of Appeals dated 
February 12, 1986 ...............................................................43a
Order of Seventh Circuit Court of Appeals dated 
October 21, 1985 ................................................................. 45a
Opinion of Panel of Seventh Circuit Court of Appeals 
dated October 21, 1985....................................................... 46a

District Court Judgment dated September 26, 1984 . . 98a

Opinion of District Court dated September 25, 1984. . 99a

Resolution 1020 of the South Bend Community School 
Corporation......................................................................... 118a

Consent Decree in United States v. South Bend 
Community School Corporation dated February 8,
1980....................................................................................... 121a
Article XXIII of the 1980-83 Collective Bargaining 
Agreement between the NEA-South Bend and the 
South Bend Community School Corporation.................126a



la

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED

U.S. Const, amend. XIV, sec. 1:
All persons born or naturalized in the United States, 

and subject to the jurisdiction thereof, are citizens of the 
United States and of the State wherein they reside. No 
State shall make or enforce any law which shall abridge 
the privileges or immunities of citizens of the United 
States; nor shall any State deprive any person of life, 
liberty, or property, without due process of law; nor deny 
to any person within its jurisdiction the equal protection 
of the laws.

42 U.S.C. § 2000e-2(a):
(a) It shall be an unlawful employment practice for an 

employer —

(1) to fail or refuse to hire or to discharge any in­
dividual, or otherwise to discriminate against 
any individual with respect to his compensation, 
terms, conditions, or privileges of employment, 
because of such individual’s race, color, religion, 
sex, or national origin; or

(2) to limit, segregate, or classify its employees or 
applicants for employment in any way which 
would deprive or tend to deprive any individual of 
employment opportunities or otherwise adversely 
affect his status as an employee, because of such 
individual’s race, color, religion, sex, or national 
origin.



2a

JUDGMENT -  ORAL ARGUMENT 
No. 84-2841

ffiniteb JStaibs (Havtrt nf ^Appeals
cilfor ^£&entt| Qltrcmi

CUtftcago, (SlUtnots 60604

May 18, 1987.

Before
Hon. W illiam J. Bauer, Chief Judge 
Hon. W alter J. Cummings, Circuit Judge 
Hon. H arlington W ood, Jr., Circuit Judge 
Hon. Richard D. Cudahy, Circuit Judge 
Hon. Richard A. Posner, Circuit Judge 
Hon. John L. Coffey, Circuit Judge 
Hon. Joel M. Flaum, Circuit Judge 
Hon. Frank H. Easterbrook, Circuit Judge 
Hon. Thomas E. Fairchild, Senior Circuit Judge

ELM ER BRITTON, et al.,
Plaintiffs-Appellants,

vs.
SOUTH BEND COMMUNITY 

SCHOOL CORPORATION, et
>

al.,

Appeal from the United 
States District Court 
for the Northern Dis­
trict of Indiana, South 
Bend Division.

Nos. 82-C-283 
82-C-485

Defendants-Appellees J Allen Sharp, Judge.

This cause was heard on the record from the United 
States District Court for the Northern District of Indiana. 
South Bend Division, and was argued by counsel.

On consideration whereof, IT IS ORDERED AND 
ADJUDGED by this Court that the judgment of the said



3a

District Court in this cause appealed from be, and the 
same is hereby, REVERSED, with costs, and the case is 
REMANDED, in accordance with the opinion of this Court 
filed this date.



4a

la tip

United States Court of Appeals
3tor tip dftttttti? QUrnm

No. 84-2841
E lmer Britton, et al.,

Plaintiffs-Appellants, 
v.

South Bend Community School Corporation, 
et al.,

Defendants-Appellees.

Appeal from the United States District Court 
for the Northern District of Indiana, South Bend Division. 

Nos. 82 C 283, 82 C 485-A lien  Sharp, Chief Judge.

A rgued May 28, 1985—Reargued E n Banc October 23, 1986 
Decided May 18, 1987

Before Bauer , Chief Judge, Cummings, W ood Jr., 
Cudahy, Posner, Coffey, F laum, and Easterbrook, 
Circuit Judges, and Fairchild, Senior Circuit Judge.

Posner, Circuit Judge. In 1982 the public school sys­
tem of South Bend, Indiana laid off 146 teachers. All were 
white; 48 had more seniority than blacks not laid off; two 
years later 20 of the 48 had not yet been recalled. In lay­
ing off only whites, the school board was acting pursuant 
to a provision in its collective bargaining agreement with 
the teachers’ union to the effect that no blacks would be 
laid off until every white was laid off. The laid-off teachers 
sued the school system under section 1 of the Civil Rights



5a

Act of 1871, 42 U.S.C. § 1983, charging that the racially 
preferential layoff provision violated the equal protection 
clause of the Fourteenth Amendment, and seeking rein­
statement and damages. The district court, after a bench 
trial, gave judgment for the board. 593 F. Supp. 1223 
(N.D. Ind. 1984). The court thought the board’s adoption 
of the provision a reasonable means toward the board’s 
goal, which the court also thought reasonable, of raising 
the percentage of black teachers in the South Bend school 
system to that of black students. The board had resolved 
‘ ‘to increase the percentage of minorities [meaning blacks] 
in its teaching force until that percentage equals the per­
centage of minorities in its student body. The Board 
specifically resolved to increase the percentage of minority 
pupils [sic—the judge meant ‘teachers’] because it deemed 
it essential that the student population, both black and 
white, have a sufficient number of minority teachers to 
act as role models.”  Id. at 1225. “ In cases dealing with 
school corporations, it is proper to compare the percent­
age of minority faculty with the percentage of minorities 
in the student body rather than with the percentage of 
minorities in the relevant labor pool . . . because of the 
vital role teachers play as role-models for their students. 
This is particularly true in the rise [sic—the judge ap­
parently meant ‘case’] of minority teachers since ‘societal 
discrimination has often deprived minority children of 
other role models.’ ”  Id. at 1230 n. 3.

The board appealed. A divided panel of this court af­
firmed. 775 F.2d 794 (7th Cir. 1985). The full court then 
granted rehearing en banc. Before the case could be re­
argued, the Supreme Court decided a similar case in favor 
of another group of white public school teachers. Wygant 
v. Jackson Board o f Education, 106 S. Ct. 1842 (1986). 
Like the panel in the present case, the Sixth Circuit had 
upheld the dismissal of the complaint. The Supreme Court 
reversed. It rejected the “ role models” rationale on which 
the Sixth Circuit, like the district court in the present 
case, had based its decision. The Supreme Court did not 
remand for further proceedings to determine whether the

* No. 84-2841



6a

plaintiffs’ constitutional rights had been violated; it held 
they had been. When the present case was reargued to 
us, the question no longer was reversal or affirmance; it 
was whether to reverse outright, holding that the plain­
tiffs had proved a violation of their constitutional rights 
and remanding only for the determination of the appropri­
ate remedy; or to remand for further proceedings in which 
the board would have an opportunity to establish a ra­
tionale for racially discriminatory layoffs that would be 
consistent with the Wygant decision.

The constitutional status of discrimination by public 
bodies in favor of blacks and other members of minority 
groups is contentious and unsettled; but with the Supreme 
Court having spoken so recently to a set of facts so close 
to those of the present case, the task for us is the inter­
pretation of the Court’s decision rather than the forging 
of new constitutional law. Wygant came out of the public 
school system of Jackson, Michigan. In 1968, the year be­
fore the Jackson board of education adopted a racially 
preferential hiring plan, 4 percent of the city’s public 
school teachers were black, compared to 15 percent of the 
students. Wygant v. Jackson Board o f Education, 746 
F.2d 1152, 1156 (6th Cir. 1984), rev’d, 106 S. Ct. 1842 
(1986). Because Michigan’s civil rights commission believed 
that the disparity was due to discrimination against black 
teachers (see 106 S. Ct. at 1854), the board of education 
agreed to give preference in hiring to blacks until the 
percentage of black teachers was equal to that of black 
students. By 1971, 9 percent of the teachers were black. 
746 F.2d at 1156. That year it became necessary to lay 
off some teachers. The board did this in the usual w a y - 
reverse order of seniority. A disproportionate number of 
those laid off were black, because so many blacks had 
been hired recently and therefore had little seniority. The 
racial situation in the Jackson public schools soon became 
even more tense—became, indeed, violent. See 106 S. Ct. 
at 1859. Expecting that additional layoffs would be neces­
sary in the near future, the board decided it must take 
measures to make sure that such layoffs would not reduce

No. 84-2841 3



7a

the number of black teachers disproportionately. The board 
felt it needed to have as many black teachers as possible 
in order to quiet the schools and give black students role 
models. It also feared that the hiring of blacks would be 
impeded by strict adherence to the principle of laying off 
teachers in reverse order of seniority, because new teachers 
would know they would be the first to be laid off if there 
was a reduction in force.

In 1972 the board negotiated with the teachers’ union an 
agreement (which became Article XII of the collective bar­
gaining contract with the union) to deviate from the prin­
ciple of laying off teachers in reverse order of seniority, 
but only to the extent necessary to preserve the existing 
percentage of blacks (and other members of minority groups, 
but we can ignore that feature of the case) in the teaching 
force. So if 10 percent of the teachers were black, no more 
than 10 percent of the teachers laid off could be black.

The collective bargaining contract in Wygant was rati­
fied by an overwhelming majority of the Jackson public 
school teachers, most of whom were white. Nevertheless, 
in a suit by white teachers laid off because of Article XII, 
the Supreme Court held that the provision was a denial 
of equal protection. Although there was no majority opin­
ion in Wygant, a “ lowest common denominator” majori­
ty position can be pieced together. “When a fragmented 
Court decides a case and no single rationale explaining 
the result enjoys the assent of five Justices, ‘the holding 
of the Court may be viewed as that position taken by 
those Members who concurred in the judgments on the 
narrowest grounds.’ ” Marks v. United States, 430 U.S. 
188, 193 (1977).

Justice Powell, writing in Wygant for three Justices, 
opined that a public body may not use race as a criterion 
for layoffs unless necessary to protect a proven victim of 
discrimination, such as a black who if he had not been 
discriminated against would have had as much seniority 
as a white. See 106 S. Ct. at 1849-52. Justice White took 
the same position, only more bluntly. See id. at 1857-58.

4 No. 84-2841



8a

Obviously if either of those opinions had commanded a 
majority, we would have to reverse outright. But since 
Justice O’Connor, the fifth and last member of the ma­
jority, concurred in the judgment of reversal on the nar­
rowest ground, her opinion is critical to our determining 
the proper disposition of the present case.

She reserved the question whether a racially preferential 
layoff plan might ever be a constitutionally permissible 
measure “ to correct apparent prior employment discrimi­
nation against minorities while avoiding further litigation,” 
id. at 1854 (see also id. at 1857), and she noted in this 
connection that the Jackson school board had “ reasoned 
that without the layoff provision, the remedial gains made 
under the ongoing hiring goals contained in the collective 
bargaining agreement could be eviscerated by layoffs,” 
id. at 1854. The fact that there had been no authoritative 
determination of hiring discrimination and that the layoff 
provision would not merely benefit victims of such discrim­
ination did not in her view automatically condemn the 
plan. Nevertheless she agreed that the plan was uncon­
stitutional and that outright reversal was the proper dis­
position of the appeal, because the plaintiffs had

met their burden of establishing that this layoff provi­
sion is not “ narrowly tailored” to achieve its asserted 
remedial purpose by demonstrating that the provision 
is keyed to a hiring goal that itself has no relation 
to the remedying of employment discrimination.

Id. at 1857. That is,
the hiring goal that the layoff provision was designed 
to safeguard was tied to the percentage of minority 
students in the school district, not to the percentage 
of qualified minority teachers within the relevant 
labor pool. The disparity between the percentage of 
minorities on the teaching staff and the percentage 
of minorities in the student body is not probative of 
employment discrimination. . . . Because the layoff 
provision here acts to maintain levels of minority hir­
ing that have no relation to remedying employment

No. 84-2841 5



9a

discrimination, it cannot be adjudged “ narrowly tai­
lored”  to effectuate its asserted remedial purpose.

Id. (citation omitted). The hiring goal in the present case 
was likewise “ tied to the percentage of minority students 
in the school district.”

Justice Marshall, the author of the principal dissenting 
opinion in Wygant (which Justices Brennan and Blackmun 
joined), made two points that are particularly relevant to 
the present case. First, he noted that an alternative to a 
racially proportional layoff provision—such as Article XII, 
which merely preserved the percentage of black teachers 
achieved before the layoffs—“ would have been a freeze 
on layoffs of minority teachers. This measure . . . would 
have been substantially more burdensome than Article XII, 
not only by necessitating the layoff of a greater number 
of white teachers, but also by erecting an absolute distinc­
tion between the races, one to be benefited and one to 
be burdened, in a way that Article XII avoids.”  Id. at 
1865. That hypothetical “ substantially more burdensome” 
measure is the one the South Bend school board adopted.

Second, Justice Marshall took exception to the majority’s 
refusal to remand the case for findings on possible justi­
fications for Article XII other than those the majority had 
rejected. The district court had granted summary judg­
ment for the Jackson board of education because the court 
found, on the basis of evidence that a much higher per­
centage of students than of faculty was black, that favor­
ing blacks in layoffs was necessary both to give black 
students adequate “ role models” and to rectify “ societal 
discrimination” against black teachers (“ societal discrimi­
nation”  meaning a racial imbalance not caused by the 
defendants’ own discriminatory acts). The defendants in 
Wygant, perhaps foreseeing rejection of these grounds, 
submitted evidence relevant to other possible justifications 
to the Supreme Court. The submission had no standing 
as evidence, but it provided a reason for remanding the 
case to give the lower courts a chance to consider it. The 
rejection of Justice Marshall’s suggestion that the case

6 No. 84-2841



10a

be remanded has implications for the present case, which 
the defendants have asked us to remand.

South Bend, Indiana, like Jackson, Michigan, had a lower 
percentage of black teachers in its public schools than of 
black students. In 1978, on the eve of adopting a racially 
preferential hiring plan, the percentages were 10 and 22. 
Although the 10 percent figure is more than twice the 
percentage of black teachers in the Jackson public schools 
at the corresponding period in the evolution of its program 
of racial preferences, the South Bend school board was 
not satisfied, and resolved to raise the percentage of black 
teachers until it equaled that of black students. The layoff 
plan ensured that if layoffs were necessary they would 
not impede achievement of the board’s goal of racial parity 
between teachers and students. Indeed, since no blacks 
could be laid off if any whites had not yet been laid off, 
the layoff plan (unlike the one in Wygant) was calculated 
to increase rather than just maintain the percentage of 
black teachers in the event that any layoffs became neces­
sary. By 1981, 13 percent of the teachers (and 25 per­
cent of the students) were black. As a result of the layoff 
provision, the percentage of black teachers rose—to 14 
percent—when it became necessary to lay off teachers, 
since all of those laid off were white.

No one doubts that the signatories of the plurality opin­
ion in Wygant, plus Justice White (a total of four Justices), 
would invalidate South Bend’s racially preferential layoff 
plan. The plan goes further than the one struck down in 
Wygant, unlike Wygant there is no background of racial 
violence; as in Wygant there is no evidence that any of 
the black teachers who have benefited from the plan are 
victims of racial discrimination that deprived them of 
seniority they would otherwise have had. Conceivably 
Justice O’Connor might approve a racially preferential lay­
off plan of some sort (a critical qualification, as we shall 
see) if she were convinced that the purpose of the plan 
was to correct previous hiring discrimination by the school 
board. There was some evidence in the record before the 
Supreme Court in Wygant that that had been the Jackson

No. 84-2841 7



11a

school board’s purpose; there is very little evidence that 
it was the South Bend board’s purpose. The goal advanced 
by the board in the district court—the goal to which all 
of the board’s evidence was oriented—was to correct a 
discrepancy between the percentage of black teachers and 
the percentage of black students. Such a discrepancy is, 
in Justice O’Connor’s view, “ not probative of employment 
discrimination,”  106 S. Ct. at 1857 (emphasis added), and 
therefore cannot, in her view, justify racially discrimina­
tory layoffs. For her the proper comparison in deciding 
whether black teachers have been discriminated against 
is not between the percentage of black teachers and the 
percentage of black students but between the percentage 
of qualified black teaching applicants who are hired and 
the percentage of qualified white applicants who are hired; 
if 10 percent of the qualified blacks are hired but 20 per­
cent of the qualified whites are hired, this would be evi­
dence of racial discrimination in hiring. See id.; J. Edinger 
& Son, Inc. v. City o f Louisville, 802 F.2d 213, 216 (6th 
Cir. 1986). Nowhere in the transcript of the trial or in 
the trial exhibits do we find evidence that the purpose 
of the South Bend school board in seeking to equate the 
fraction of black teachers to the fraction of black students 
was to remedy employment discrimination. The district court 
did not overlook this theory of the defense; the theory simply 
was not presented to the court. Cf. 593 F. Supp. at 1231. 
The board put all its forensic eggs in the baskets labeled 
“ role models” and “ racial imbalance.” The board’s counsel 
said at trial, “ statistical disparity, that’s all that’s neces­
sary . . . .  So our evidence, Your Honor, in terms of justify­
ing this provision, is going to be that of showing the sta­
tistical disparage [sic] between the proportion of Blacks 
in the teaching force of the corporation, and the propor­
tion of [black] students in the student body.”

The record contains some evidence bearing on discrimi­
nation against blacks, but because discrimination was not 
the focus of the district court proceedings, the evidence 
is sparse, and it is also ambivalent. Far from discriminat­
ing against black teachers, the South Bend school board

8 No. 84-2841



12a

had for years been hiring a much higher fraction of black 
than of white teaching applicants. As early as 1972—eight 
years before the collective bargaining provision challenged 
in this case—22 percent of all the new hires were black. 
In 1974 this figure was 30 percent; in 1980, 55 percent. 
Granted, this is not the complete picture. In 1975, five years 
before the layoff provision at issue in this case was adopted, 
HEW wrote a letter to the school board alleging racial 
discrimination in the South Bend public school system. 
However, the only concern expressed in the letter with re­
spect to discrimination in hiring involved the discrepancy 
between the fraction of black students and the fraction 
of black teachers—the theory of discrimination discredited 
by Wygant. And the school board’s reply to the letter de­
tailed the board’s vigorous efforts to recruit black teachers, 
efforts that included not only soliciting teaching applica­
tions from black colleges but also hiring a much higher 
fraction of black than of white applicants. A second let­
ter that HEW wrote in 1975 is silent on discrimination 
in hiring, and a third is a form letter apparently written 
to all public school superintendents in the country. The 
record also contains an unsworn, unsubstantiated, unelabo­
rated charge by a member of the audience at a public 
meeting unrelated to this case, that the board had un­
justly refused to hire five (unnamed) black teaching ap­
plicants. Even if this accusation were accepted as true, 
it would imply—in the context of uncontradicted evidence 
that blacks were favored in hiring, consistently with the 
board’s goal of raising the percentage of black teachers 
to the percentage of black students—a mistaken person­
nel decision rather than an act of deliberate discrimina­
tion. Finally, Brown v. Weinberger, 417 F. Supp. 1215, 
1221 (D.C. Cir. 1976), noted that HEW had years ago ac­
cused the South Bend board of some unspecified form of 
racial discrimination, but the opinion does not suggest that 
the accusation is true, or concerned discrimination in hir­
ing. And HEW never did bring suit.

South Bend may have engaged in a different form of 
discrimination—assigning black teachers to teach black

No. 84-2841 9



13a

students—for which the proper remedy would be to en­
join this practice, as a consent order did in 1980. The 
order said nothing about giving blacks superseniority, for 
that \vould not be a logical remedy for discrimination in 
assigning teachers. That Indiana had a segregated school 
system almost 40 years ago is another fact that pertains 
to discrimination in assigning, not in hiring, teachers. 
Steering black teachers to black schools could actually lead 
to hiring more black teachers than if there were no steer­
ing, by earmarking all teaching slots in black schools for 
blacks. Granted, in 1964 only 4 percent of the teachers 
in the South Bend public school system were black, yet 
there is no evidence that this was due to discrimination 
in hiring or assigning; the percentage of blacks in South 
Bend wras also lower then.

Given the long history of discrimination against black 
people, in Indiana as elsewhere, we cannot exclude the 
possibility that the South Bend school board, perhaps until 
fairly recently, discriminated against black teachers in hir­
ing and that the layoff provision challenged in this case 
was adopted, in part at least, to correct that discrimina­
tion by protecting newly hired black teachers against be­
ing laid off in the event of an economic downturn. One 
would think, however, that if this were so, the board 
would have argued the point in the district court; for 
while Wygant, decided later, withdrew certain justifica­
tions for such provisions, it did not create a new one (cor­
recting previous discrimination). The board had every in­
centive to assert all its possible defenses in the district 
court; any not asserted would ordinarily be deemed waived. 
See, e.g., National Fidelity Life Ins. Co. v. Karaganis, 
811 F.2d 357, 360-61 (7th Cir. 1987); Benzies v. Illinois 
Dept, o f Mental Health & Developmental Disabilities, 810 
F.2d 146, 149 (7th Cir. 1987). The Supreme Court did not 
remand Wygant, as Justice Marshall had suggested it do, 
to permit the Jackson board of education to prove that 
its layoff provision had been designed to rectify previous 
discrimination in hiring—of which the board had in fact 
been accused.

10 No. 84-2841



14a

Despite all this it might be arguable as an original mat­
ter that the evidence of remedial purpose, although weak, 
is stronger than in Wygant and that the South Bend 
school board should have a chance to shore up that evi­
dence on remand—were it not for Justice O’Connor’s in­
sistence that even a remedial layoff plan be “ narrowly 
tailored,”  a requirement that the plan in this case flunks 
even more decisively than the plan in Wygant Recall that 
Justice O’Connor was willing to accept the possibility that 
the layoff plan had been adopted in order to correct the 
Jackson school board’s “ apparent prior discrimination.” 
But that wasn’t good enough; the plan was invalid be­
cause tied to an improper hiring goal, that of equating 
the fraction of black teachers to the fraction of black stu­
dents. The plan in the present case is tied to the same 
goal, and really no more need be said to condemn the 
plan. But there is more: enough more, indeed, that even 
Justice Marshall and the two Justices who joined him 
might think South Bend had gone too far, by erecting an 
absolute racial preference for blacks. That goes further 
than necessary to preserve blacks’ gains in times of eco­
nomic downturn, and further than the proportional prefer­
ence struck down in Wygant.

Between 1979 and 1981 the South Bend school board 
hired 62 blacks, and it was the 48 most recently hired of 
these blacks, 41 of whom had been hired since 1980, who 
would have been laid off under a racially neutral layoff 
plan. Thus, no matter how recently hired a black was, 
he was placed on the seniority ladder above every white 
teacher. In addition to giving every black an absolute 
preference over every white, the plan ties the percentage 
of black teachers to such irrelevant and unpredictable cir­
cumstances as the economic health and school-age popula­
tion of South Bend; the plan uses economic downturns and 
shrinkages in the student population as fulcrums for arbi­
trarily increasing the percentage of black teachers in the 
public school system. A plan with such effects cannot be 
held to be “ narrowly tailored”  to the goal of remedying 
previous discrimination, even if that was the board’s goal,

No. 84-2841 11



15a

of which there is, as we have said, almost no evidence 
in the record, and even if such a goal could save a layoff 
plan tied to a hiring goal of equating the percentage of 
black teachers to the percentage of black students, which 
Justice O’Connor (and a fortiori the other four Justices 
in the majority in Wygant) believed it could not.

The school board has argued (though not until reargument 
en banc was granted) that it didn’t really lay off these 
whites, because it offered them substitute positions, though 
at reduced compensation. But the board’s counsel acknowl­
edged at argument that his client would have violated the 
equal protection clause if it had tried to solve its finan­
cial problems by cutting just white teachers’ wages or 
fringe benefits (estimated to be worth between $2,000 and 
$4,000 a year), without laying off anybody. Yet that is 
what he says the board actually did, by offering to hire 
the laid-off whites as substitute teachers at a reduced 
level of compensation.

The judgment of the district court is reversed, and the 
case is remanded for further proceedings consistent with 
this opinion.

12 No. 84-2841

F laum, Circuit Judge, joined by Bauer, Chief Judge, 
concurring in the judgment and concurring in part.

I.
I join with Judge Posner in concluding that the plan 

adopted by the South Bend School Board was not narrow­
ly tailored because it created an absolute preference for 
black teachers and thereby imposed a burden on white 
teachers that was greater than necessary to achieve even 
the most compelling purpose. I therefore agree that, in 
light of Wygant, the Board’s plan fails the test of strict 
scrutiny and must be held unconstitutional. However, I 
write separately to express my understanding of the stand­
ards that govern our consideration of the constitutionality



16a

of affirmative action plans adopted by public employers. I 
also write separately to offer guidance to the district court, 
which on remand must determine the relief to which each 
plaintiff is entitled.

In light of Wygant, it is clear that a court may only 
uphold an affirmative action plan that is adopted by a 
public employer, and challenged under the Equal Protec­
tion Clause, if the court first determines that the em­
ployer adopted the plan to achieve a “ compelling pur­
pose.” Remedying its own past discrimination is indis­
putably one such purpose.1 This does not mean, however, 
that a court may only uphold an affirmative action plan 
intended to remedy past discrimination if it determines 
that the public employer actually discriminated. Rather, 
the critical inquiry is whether the employer, giving due 
consideration to the rights of all employees, had “ a firm 
basis for determining that affirmative action [was] war­
ranted,”  Wygant, 106 S.Ct. at 1856 (O’Connor, J., con­
curring in part), and whether it acted based on that belief. 
In resolving this issue, a court may consider both direct 
and circumstantial evidence.

At trial, the South Bend School Board, relying on the 
Sixth Circuit’s opinion in Wygant, stressed the “ role 
model” theory. As a result, the record on appeal is neces­
sarily incomplete as to the Board’s reason for adopting 
the plan. Nonetheless, the record indicates that the Board 
maintained a dual school system; received letters from 
government agencies suggesting that it had discriminated; 
heard statements made at public meetings accusing it of 
discrimination; and signed a consent decree barring racial 1

No. 84-2841 13

1 Remedying past discrimination is not necessarily the only gov­
ernment purpose sufficiently compelling to justify the remedial use 
of race. Providing faculty diversity may be a second. Wygant, 106 
S.Ct. at 1853 (O’Connor, J., concurring in part). There may be 
“other governmental interests . . .  [that are] sufficiently ‘important’ 
or ‘compelling’ to sustain the use of affirmative action policies.” Id.



17a

“ steering” of teachers. Although these facts do not con­
clusively establish that the Board discriminated against 
black teachers in hiring, they are sufficient to permit a 
court to conclude that the Board reasonably believed that 
it had discriminated. The record also indicates that, al­
though the School Board stressed the role model theory, 
it did suggest at trial that it had adopted the layoff plan 
to remedy its past discrimination. See, e.g., Trial Tran­
script 91-92, 95-96 (testimony of former board member 
H. Hughes).

Although the Board appears to have had a compelling 
purpose, its plan must fail because it was not narrowly 
tailored. If the Board had sought to remedy its past dis­
crimination by maintaining the percentage of black teachers, 
it could have adopted a proportional layoff plan. Such a 
plan might have been constitutionally permissible in this 
case. See Firefighters Local Union No. 178k v. Stotts, 467 
U.S. 561, 583 (1984) (leaving open the question of whether 
a public employer may voluntarily adopt a proportional 
layoff plan); see also Franks v. Bowman Transportation 
Company, 424 U.S. 747, 778-79 (1976) (A collective bar­
gaining agreement may “ enhancfe] the seniority status of 
certain employees . . .  to the end of ameliorating the ef­
fects of past racial discrimination.” ). If the Board had 
reasonably believed that the only means to remedy its 
past discrimination was by continuing to increase the 
percentage of black teachers, it could conceivably have 
been permissible for it to adopt a disproportional layoff 
plan. Cf. United States v. Paradise, 107 S.Ct. 1053 (1987) 
(disproportional hiring plan permissible to remedy extreme 
discrimination by a state actor). The fatal flaw in the 
Board’s plan is that it placed the entire burden on the 
white teachers. II.

14 No. 84-2841

II.
On remand, the district court must make an individual­

ized assessment of the compensatory and equitable relief 
to which each plaintiff is entitled. The court should grant



18a

compensatory relief only for those injuries that would not 
have occurred but for the Board’s unconstitutional action. 
For example, those plaintiffs who would have been laid 
off even if the Board had used its pre-existing seniority 
system do not appear to have suffered a compensable in­
jury. Moreover, any award of compensatory relief should 
reflect the mitigation of damages resulting from the sub­
stitute teaching and recall provisions.

In determining the equitable relief to which the plain­
tiffs are entitled, I believe that the district court should 
be guided by the existing case law concerning “ compen­
satory seniority.”  The Supreme Court has stated that the 
“remedial interest of the discriminatees” must be balanced 
against “ the legitimate expectations of other employees 
innocent of any wrongdoing.” Teamsters v. United States, 
431 U.S. 324, 371-77 (1977). In particular, the Court has 
indicated that those plaintiffs who have not been recalled 
are “ not automatically entitled to have [an incumbent] 
employee laid off to make room” for them. Firefighters 
Local Union No. 178U v. Stotts, 467 U.S. 561, 579 (1984). III.

III.
The outcome in this case should not be construed as 

a retreat from our belief that the eradication of racial bar­
riers must remain one of the highest priorities of our 
society, and our recognition that when these barriers are 
the result of intentional discrimination by a state actor, 
the Constitution elevates this priority to the status of an 
affirmative command. Swann v. Charlotte-Mecklenburg 
Board o f Education, 402 U.S. 1 (1971). Although we have 
rejected the plan at issue, our result does not signal any 
hesitation to uphold reasonable affirmative action pro­
grams, even if “ innocent persons [are] called upon to bear 
some of the burden of the remedy,” Wygant v. Jackson 
Board o f Education, 106 S.Ct. 1842, 1850 (1986) (plurality). 
Our efforts as a society to remedy the appalling legacy 
of discrimination are far from finished.

No. 84-2841 15



19a

Cummings, Circuit Judge, with whom Judges W ood, Jr., 
Cudahy, and Fairchild join, dissenting. Vftiile fully join­
ing Judge Cudahy’s dissent, I feel it is necessary to voice 
my objection to the grounds relied upon by the plurality 
and concurrence. “ It is now well established that govern­
ment bodies, including courts, may constitutionally employ 
racial classifications essential to remedy unlawful treat­
ment of racial or ethnic groups subject to discrimination.” 
United States v. Paradise, 107 S. Ct. 1053, 1064 (plurality 
opinion); Local 28 o f the Sheet Metal Workers’ Int’l Ass’n 
v. EEOC, 106 S. Ct. 3019, 3052 (plurality opinion). Also 
beyond dispute is the importance of voluntary efforts on 
the part of public employers, as well as private employers, 
to eliminate the lingering effects of racial discrimination, 
even those effects not attributable to the entity’s own 
practices. Johnson v. Transportation Agency, 107 S. Ct. 
1442, 1456-1457; United Steelworkers v. Webber, 443 U.S. 
193, 208. This concern rises to the level of a constitutional 
duty to take affirmative action when the lingering dis­
criminatory effects are due to a public employer’s own 
past discrimination. Wygant v. Jackson Board o f Educa­
tion, 106 S. Ct. 1842, 1856 (O’Connor, J., concurring); 
Keyes v. School District No. 1, 413 U.S. 189, 200; Swann 
v. Charlotte-Mecklenburg Board o f Education, 402 U.S. 
1, 15; Green v. County School Board, 391 U.S. 430, 437- 
438. Today’s treatment of the layoff plan of the South Bend 
Community School Corporation (the “ School Corporation” ) 
will unjustifiably discourage public employers from volun­
tarily meeting their constitutional obligations to undertake 
race-conscious remedial measures.

Public employers who undertake race-conscious remedial 
measures must consider the need for the measures as well 
as their effects on the rights of employees innocent of 
discriminatory wrongdoing. Although a majority of the 
Supreme Court has yet to reach agreement on the stand­
ard for reviewing an equal protection challenge to a public 
employer’s affirmative action program, if that plan meets 
the requirements of strict scrutiny then there can be no 
doubts as to its constitutionality. Paradise, 107 S. Ct. at

16 No. 84-2841



20a

1064. Because we cannot determine on the basis of the 
record before us that as a matter of law plaintiffs have 
met their burden of establishing that the School Corpora­
tion’s layoff provision violated the Equal Protection Clause, 
even giving them the benefit of the strictest standard for 
reviewing such plans, this case should be remanded to the 
district court for further fact-finding.

The evidence and testimony presented at trial and laid 
out in Judge Cudahy’s dissenting opinion herein show that 
the School Corporation had a “ firm basis” for believing 
that race-conscious remedial measures were necessary. See 
Wygant, 106 S. Ct. at 1856 (O’Connor, J., concurring). The 
layoff provision was adopted in 1980 after more than a 
decade of increasing criticism of the School Corporation’s 
policies and practices that maintained a dual school sys­
tem—officially prescribed by Indiana law until 1949—in 
which some schools could be identified as “ white” or 
“ black.”  In 1967, the School Corporation was forced by 
a lawsuit to abandon plans to construct a new school on 
the site of a school that was 99% black and alleged to be a 
product of de jure segregation. Def. Ex. M-6. There was 
evidence that black teachers were assigned to predomi­
nantly black schools, which received less maintenance and 
substantially less financial support, and that black teachers 
had little opportunity for promotion. Id. In 1975, the Of­
fice for Civil Rights of the Department of Health, Educa­
tion and Welfare determined that the School Corporation 
was intentionally segregating faculty members. Def. Ex. 
M-3. This finding alone creates a prima facie case of a 
violation of the Equal Protection Clause justifying race­
conscious remedies, Swann, 402 U.S. at 18, but there was 
even more. In the mid-1970’s the Board of Trustees of 
the School Corporation discussed the fact that racially 
identifiable schools existed and that minority teachers and 
students were concentrated in “ black schools.”  Trial Tr. 
91-92 (testimony of Hollis Hughes, Jr., former member of 
the Board). In 1976, the School Corporation made only 
failed attempts, and “ not very strong attempts,” to dis­
mantle its dual school system. Id. at 92. In May 1978,

No. 84-2841 17



21a

the State of Indiana Office of Schoolhouse Planning for­
bade construction of new facilities until the School Cor­
poration addressed the problem of racially identifiable 
schools. Id. at 93.

Under pressure from the State of Indiana and the federal 
government, the School Corporation finally took significant 
steps to dismantle its dual school system. In December 
1978, it adopted an affirmative action hiring program, 
Resolution 1020. In February 1980, after the federal gov­
ernment had brought suit, the School Corporation entered 
a consent decree to desegregate its schools by changing 
its faculty and student assignment policies. Def. Ex. C-l. 
That consent decree required it to continue its affirmative 
action hiring programs and report to the federal govern­
ment its total faculty, by race, until the end of 1983. Id. 
3 at 1 8, 4 at 1 10(a). In May 1980, the School Corpora­
tion entered a 3-year collective bargaining agreement that 
included the no-minority layoff provision.

Therefore, the trier of fact on remand could find that 
the School Corporation had a firm basis for believing it 
necessary to adopt a remedy even as drastic as the 3-year 
no-minority layoff provision. For race-conscious remedies, 
“ the nature of the violation determines the scope of the 
remedy.”  Swann, 402 U.S. at 16. Here the School Cor­
poration waited for more than 20 years after Brown v. 
Board o f Education, 347 U.S. 483, to begin to dismantle 
its dual school system and in the meantime continued its 
policies of maintaining racially identifiable schools until it 
was forced to change. Although facially appealing, our in­
quiry into the constitutionality of the layoff provision does 
not end with the simple observation that the School Cor­
poration’s provision barred the laying off of any black 
teachers while Wygant struck down a plan merely requir­
ing proportional layoffs. Unlike Wygant where there was 
no evidence of intentional discrimination, see Sheet Metal 
Workers, 106 S. Ct. at 3053 (plurality opinion); see also dis­
senting opinion herein at pp. 27-28 (Cudahy, J.), here a trier 
of fact could find that the School Corporation reasonably 
believed that such immediate action was necessary to

18 No. 84-2841



22a

maintain the present number of black teachers. The pro­
vision enabled the School Corporation to preserve its af­
firmative action hiring gains and to counter the linger­
ing discriminatory atmosphere traceable to its recently 
abandoned policy of assigning black teachers to “ black 
schools,” and to do all this in an expedited manner in 
order to compensate for its past delays in meeting its con­
stitutional obligations—to teachers and students—to “ elimi- 
nate[ ] root and branch” any vestiges of past discrimina­
tion. Paradise, 107 S. Ct. at 1066 n.20, 1067-1074; Green, 
391 U.S. at 437-439. The temporary layoff provision was 
not only a remedy for past discrimination against black 
teachers, but also was part and parcel of the School Cor­
poration’s constitutionally mandated efforts to replace its 
dual school system with an integrated learning environ­
ment.

Rather than allowing the trial court to determine if 
plaintiffs have proven that the layoff provision was not 
narrowly tailored to its remedial purpose, the plurality 
here believes that the plan is “ invalid because tied to an 
improper hiring goal.”  Plurality opinion at p. 11. The hir­
ing policy, Resolution 1020, which mentioned the percent­
age of minority students as a goal for the percentage of 
minority teachers, was a separate resolution of the Board 
of Trustees, and, unlike the one in Wygant, not part of, 
nor compelled by, the collective bargaining agreement. See 
Wygant v. Jackson Board o f Education, 746 F.2d 1152, 
1158 (6th Cir. 1984), reversed, Wygant, 106 S. Ct. 1842. 
That the provision was not tied to any hiring goal is made 
clear by the fact that any teachers laid off because of the 
agreement would be hired back first when new openings 
became available. Def. Brief on Rehearing En Banc 23. 
Because any gains in the percentage of black teachers 
would evaporate as soon as budgetary constraints eased, 
the hiring goal would not be furthered. Also, the small 
number of white teachers who but for the provision would 
not have been laid off—perhaps only 13 to 16 people—and 
the less than 1% increase in the fraction of black teachers 
belie the suggestion that the provision was tied to the

No. 84-2841 19



23a

hiring goal. Id. at 22-24. The School Corporation believes 
that it can present evidence that it considered in advance 
the “ probable size of the anticipated layoff and the prob­
able effects of [the layoff provision] on the laid-off teachers,” 
id. at 7 n.2, which would not only establish that it was 
designed to be narrowly tailored, but also show that it 
was not intended to achieve the goal of equating the per­
centage of black teachers to black students. Thus further 
fact-finding, now made necessary by Wygant, could dispel 
this first objection of my. brethren.

A second reason advanced by both the plurality and con­
currence for holding that plaintiffs have proven that the 
provision was not narrowly tailored as a matter of law 
is that it erects an “ absolute preference” between the 
races and places the “ entire burden” on white teachers. 
Their opinions ignore our uncertainty over inter alia the 
extent of past discrimination and its lingering effects, a 
determination that defines the appropriate extent of the 
remedy, see Swann, 402 U.S. at 16, by in effect espous­
ing a per se rule that affirmative action programs that 
can be characterized as creating an “ absolute preference 
for minorities” can never be narrowly tailored.

The shortcoming of this approach is that the validity 
of an affirmative action program will then depend on how 
one chooses to define the benefits bestowed by that pro­
gram. Any advantage bestowed on a minority by an af­
firmative action program can be characterized as an “ ab­
solute preference” if just that advantage is considered and 
as “ not an absolute preference” if the chosen referent is 
the larger objective that the advantage is intended to help 
minorities obtain. Thus in United States v. Paradise, ap­
parently the plurality and concurrence would invalidate 
the remedy if they chose the referent as the 8 promo­
tions to corporal rank set aside for blacks but would up­
hold it if they chose the referent as promotion to the cor­
poral rank because blacks had no absolute preference for 
the remaining 8 openings. See 107 S. Ct. at 1071-1072 and 
n.30, 1073 (plurality opinion). In Sheet Metal Workers, the 
Supreme Court upheld the court-ordered establishment of

20 No. 84-2841



24a

a fund which provided only minority youths with part- 
time and summer sheet metal jobs, counseling, tutorial 
services, and financial assistance during apprenticeship, 
stating that there was no absolute preference for minor­
ities to be union members, as opposed to fund benefici­
aries. 106 S. Ct. at 3030, 3053 (plurality opinion). Likewise, 
in the present case the layoff provision does not create 
an absolute preference for minorities because it did not 
prevent whites from teaching in the South Bend schools— 
the vast majority of those positions continued to be held 
by whites—or from being hired as teachers to fill posi­
tions when no qualified laid-off employee was available. 
Furthermore, the provision was effective for only three 
years, the School Corporation expected that few teachers 
would be affected by it, and the School Corporation pro­
vided substitute positions to many of those who were 
affected.

It is true that Justice Marshall’s Wygant dissent em­
ployed the phrase “ absolute distinction between the races” 
to argue that the Wygant layoff provision was less bur­
densome than a no-minority layoff provision. 106 S. Ct. 
at 1865. But nowhere did he suggest that if an affirmative 
action program can be characterized as creating an “ ab­
solute distinction,”  then it is not narrowly tailored as a 
matter of law. Such a per se approach is bothersome. 
Whether a plan can be characterized as creating an “ ab­
solute distinction” is but one fact to consider. Given that 
such a characterization is easily subject to manipulation 
to produce any desired result, it is not a very probative 
fact. We should instead weigh the extent of the public 
employer’s interest, the precise burdens imposed on in­
nocent non-minorities, and the adequacy of less onerous 
alternatives. Here remand is required because, unlike 
Wygant, it cannot be decided if this provision is narrow­
ly tailored without first resolving factual questions which 
will determine a proper appraisal of all three of these fac­
tors.

In the present case the temporary no-minority layoff 
provision, as drastic as it is, may be necessary to elimi­

No. 84-2841 21



25a

nate the effects of the School Corporation’s past discrimi­
nation and continued default of its constitutional obliga­
tions. The concurrence herein is willing to assume that 
a proportional layoff plan, or even a disproportional layoff 
plan, may have been supportable by the School Corpora­
tion’s remedial purpose. However, given the twenty-plus 
years of delay in dismantling its dual school system and 
the resultant discriminatory atmosphere discouraging blacks 
from teaching at its schools, the School Corporation could 
well have been justified in deciding that a drastic-but- 
temporary remedy was needed to bring about an immedi­
ate break with its segregationist past, even during times 
of a fiscal crisis. The School Corporation owed no less to 
its students and faculty and indeed had a burden of com­
ing forward with “ a plan that promises realistically to 
work, and promises realistically to work now.” Green, 391 
U.S. at 439 (emphasis in original). Reducing the number 
of black teachers at the very time it was attempting to 
dismantle its dual school system and provide its students 
with an integrated learning environment that they had 
been unconstitutionally denied for twenty-plus years would 
have undermined these efforts. The unconscionable delays 
in eliminating the vestiges of discrimination counseled 
against the School Corporation waiting for an end to its 
fiscal crisis to provide that integrated learning environ­
ment.

The Supreme Court has recently recognized that drastic 
short-term remedies may be needed to compensate for 
lengthy delays in eliminating past discrimination. In 
United States v. Paradise, the Court upheld a court- 
imposed 50% promotion quota for black Alabama state 
troopers although the relevant labor pool was only 25% 
black. 107 S. Ct. at 1068-1070, 1071-1072 (plurality opin­
ion). The Court concluded that “ [i]t would have been im­
proper for the District Judge to ignore the effects of the 
Department’s delay and its continued default of its obliga­
tion to develop a promotion procedure, and to require only 
that, commencing in 1984, the Department promote one 
black for every three whites promoted.”  Id. at 1072. In­

22 No. 84-2841



26a

stead, the 50% promotion quota “ provided an accelerated 
approach to achieving [the 25%] goal to compensate for 
past delay” and was consistent with its school desegrega­
tion cases which have “ recognized the importance of ex­
pediting elimination of the vestiges of longstanding 
discrimination.” Id. at 1072 n.30 and n.31. In the present 
case a trier of fact could justifiably conclude that plain­
tiffs failed to prove that the layoff provision was not nar­
rowly tailored to ending the School Corporation’s long­
standing default of its constitutional affirmative duty to 
dismantle all vestiges of discrimination. No less burden­
some layoff provision might bring about the same benefits 
as quickly, and the extent of the School Corporation’s past 
discrimination and delays could justify the burdens im­
posed; therefore, remand is necessary.

The efforts of the School Corporation to meet its con­
stitutional obligation to replace its dual school system with 
an integrated learning environment and to eliminate the 
lingering effects of its discrimination against black teachers 
cannot be lightly dismissed. Without further fact-finding 
as to the extent of the School Corporation’s compelling 
interest, the burdens imposed on innocent white employ­
ees, and the adequacy of less onerous alternatives, this 
Court cannot determine whether the School Corporation’s 
layoff provision is narrowly tailored. Plaintiffs’ failure to 
meet their burden of proving the invalidity of the provi­
sion cannot be masked by reliance on talismanic factors 
shortcutting important factual determinations and yielding 
clear yet erroneous results. Therefore I respectfully dis­
sent.

No. 84-2841 23

Cudahy, Circuit Judge, with whom Judges Cummings, 
W ood, Jr., and Fairchild join, dissenting:

We are dealing here with a race-conscious layoff plan, 
voluntarily adopted by a school board under heavy govern­
ment fire for past discrimination and ratified by secret



27a

ballot by the teachers affected.1 What is most striking 
about this case is the kaleidoscope of legal scenery against 
which the facts have been projected at various times in 
the process. The adoption of the plan and its review by 
the district court and by the panel of this court all oc­
curred at times when the Supreme Court was providing 
little guidance about the legal bounds of such a plan. It 
is therefore not surprising that in the district court the 
judge and the school board were looking over their shoul­
ders at the “ role model” theories espoused by the district 
court in Wygant v. Jackson Bd. o f Educ., 546 F. Supp. 
1195 (E.D. Mich. 1982). Britton, 593 F. Supp. 1223 (N.D. 
Ind. 1984). On appeal, the panel majority, for which I wrote, 
was most concerned with Janowiak v. Corporate City o f 
South Bend, 750 F.2d 557 (7th Cir. 1984), vacated arid 
remanded, 55 U.S.L.W. 3675 (U.S. Apr. 6, 1987), an af­
firmative action case in which the same district court that 
decided Britton had recently been reversed. The panel 
majority certainly did not rely on a role model theory and, 
in fact, expressly renounced reliance “ on any particular 
theory of role modeling.” Britton, 775 F.2d 794, 800 n.8 
(7th Cir. 1985). Subsequently, the Supreme Court reversed 
Wygant in a series of opinions, none of which commanded 
a majority, that present a confusing array of essentially 
new law. 106 S. Ct. 1842 (1986). Among other things, the 
plurality opinion soundly rejected the role model rationale.1 2

24 No. 84-2841

1 The panel opinion affirming the district court in this case is 
found at 775 F.2d 794 (7th Cir. 1985). It contains an extensive 
statement of the background of this case, including the facts of 
past discrimination, and I rely on it here particularly in that re­
spect.
2 A  majority of the Justices in Wygant also rejected the require­
ment in Jammhak that affirmative action programs “be based upon 
findings of past discrimination by a competent body,” 750 F.2d 
at 561. See infra pp. 26-27. The Court has recently vacated the 
judgment in Janowiak and remanded the case to this court “ for 
further consideration in light of Johnson v. Transportation Agency, 
[107 S. Ct. 1442 (1987)] and Wygant v. Jackson Bd. o f Educ., [106 
S. Ct. 1842 (1986)].”



28a

Soon thereafter, the Supreme Court decided four more cases 
in which it upheld the validity of race-conscious remedial 
plans and further elaborated on the standards for accept­
ance. Johnson v. Transportation Agency, 107 S. Ct. 1442 
(1987); United States v. Paradise, 107 S. Ct. 1053 (1987); 
Local Number 93, Int'l Ass’n o f Firefighters v. City o f 
Cleveland, 106 S. Ct. 3063 (1986); Local 28 o f the Sheet 
Metal Workers’ Int’l Ass’n v. EEOC, 106 S. Ct. 3019 
(1986). Because of the extreme fluidity of the law and the 
consequent striking shifts in the relevance of various facts, 
it would be much better practice to remand to the fact­
finder—the district court—to determine in the first in­
stance the disposition of this case in light of these recent 
Supreme Court decisions. I therefore respectfully dissent 
and join Judge Cummings and Judge Fairchild in their 
dissents.

The plurality opinion here is at great pains to show that 
this is a “ worse” case than Wygant and hence more de­
serving of unceremonious reversal. In fact, now (and prob­
ably even more clearly after further fact-finding in the 
district court) this case is unmistakably different from 
Wygant. In the district court and in the court of appeals, 
the record in Wygant was unambiguously that of a “ role 
model” case. The record there provided a basis for in­
creasing the percentage of minority teachers only for the 
purpose of furnishing enough role models for minority 
children or, alternatively, to compensate for societal dis­
crimination. By contrast, in the case before us, there is 
solid record support for the school board’s concerns in in­
stituting a plan to redress its own past discrimination 
against black teachers in hiring.

Four of the five Justices voting to reverse in Wygant 
expressly rejected the lower courts’ determinations that 
the goals of providing role models and remedying societal 
discrimination were sufficient to justify the challenged 
layoff provision. 106 S. Ct. at 1847-48 (plurality opinion); 
id. at 1854 (O’Connor, J., concurring). Seven Justices, how­

No. 84-2841 25



29a

ever, stated (and the remaining two Justices did not dis­
agree) that the elimination of the effects of a public body’s 
own past or present discrimination is a constitutionally 
valid purpose for that body’s use of a race-conscious rem­
edy. Id. at 1848 (plurality opinion); id. at 1854-57 (O’Con­
nor, J., concurring); id. at 1863 (Marshall, J., dissenting). 
Justice O’Connor, who cast the decisive fifth vote, sum­
marized what she viewed as the areas of Court “ consen­
sus” in Wygant:

The Court is in agreement that . . . remedying past 
or present racial discrimination by a state actor is 
a sufficiently weighty state interest to warrant the 
remedial use of a carefully constructed affirmative ac­
tion program. This remedial purpose need not be ac­
companied by contemporaneous findings of actual dis­
crimination to be accepted as legitimate as long as 
the public actor has a firm basis for believing that 
remedial action is required.

Id. at 1853. Adoption of remedial measures does not de­
mand a contemporaneous finding by a court or other body 
that the public actor actually discriminated. Id. at 1848 
(plurality opinion); id. at 1854-57 (O’Connor, J., concurring); 
id. at 1863 (Marshall, J., dissenting); id. at 1867 (Stevens, 
J., dissenting). As Justice O’Connor argues, requiring 
public employers to make findings that they had in fact 
illegally discriminated before they can undertake race­
conscious remedies would obviously put a high price on 
remedial measures. Such employers would have a rough 
road to follow in fulfilling their constitutional duty to take 
affirmative steps to eliminate the continuing effects of past 
discrimination. Id. at 1855-56 (citing Swann v. Charlotte- 
Mecklenburg Bd. o f Educ., 402 U.S. 1 (1971); Green v. 
New Kent County School Bd., 391 U.S. 430 (1968)). Of 
the eight Justices who comment on this issue in Wygant, 
those who demand the most of the employer would not 
require a dauntingly rigorous showing. They would de­
mand only that, if the lawfulness of a plan is later chal­
lenged, the employer present the trial court with suffi­

26 No. 84-2841



30a

cient evidence to allow the court to determine “ that the 
employer had a strong basis in evidence for its conclu­
sion that remedial action was necessary.”  Id. at 1848 
(plurality opinion).

The main reason the Supreme Court did not remand 
Wygant to a lower court was that there the only evidence 
of past hiring discrimination was contained in “ lodgings” 
submitted by the defendant after the case had been brought 
up from the Sixth Circuit. The plurality refused to consider 
the “ non-record documents that respondent has ‘lodged’ 
with this Court,” citing “ the heretofore unquestioned rule 
that this Court decides cases based on the record before 
it.”  Id. at 1849 n.5. The plurality said that, where the 
defendant’s asserted purpose is to remedy its past discrim­
ination, “ there is no escaping the need for a factual deter­
mination below—a determination that does not exist [in 
Wygant]." Id. In like vein, Justice O’Connor found that 
it was unnecessary to remand because the layoff provi­
sion there acted “ to maintain levels of minority hiring that 
have no relation to remedying employment discrimina­
tion.”  Id. at 1857. She noted the obvious—that the 
discrepancy between the percentage of black teachers and 
black students, on which the defendant had relied in sup­
port of its role model theory', was “ not probative of em­
ployment discrimination.” Id.

Not only was the record in Wygant devoid of any evi­
dence of past employment discrimination, but, in fact, 
there had been two judicial findings that the school board 
in Wygant had not engaged in past discrimination in em­
ployment. A Michigan court had found that it “ ‘ha[d] not 
been established that the board had discriminated against 
minorities in its hiring practices. The minority represen­
tation on the faculty was the result of societal racial dis­
crimination.’ ” Id. at 1845 (plurality opinion) (quoting 
Jackson Educ. Ass’n. v. Board o f Educ., No. 77-011484CZ 
(Jackson County Cir. Ct. 1979)). Earlier, in a suit brought 
by laid-off minority teachers seeking to require the Jack- 
son Board to observe the race-conscious preferential layoff

No. 84-2841 27



31a

provision, a federal district court concluded “ that it lacked 
jurisdiction over the case, in part because there was in­
sufficient evidence to support the plaintiffs’ claim that the 
Board had engaged in discriminatory hiring practices prior 
to 1972.” Id. at 1845 (plurality opinion) (discussing Jackson 
Educ. Ass'n. v. Board o f Educ., No. 4-72340 (E.D. Mich. 
1976)). No wonder Justice O’Connor felt no need to re­
mand Wygant for a determination of how the layoff pro­
vision related to apparently non-existent past discrimina­
tion in employment.

The situation in South Bend was markedly different. 
The South Bend schools were racially segregated by stat­
ute until 1949—only five years before Brown v. Board o f 
Education—and continued as a dual system at least into 
the mid-70’s. The Office for Civil Rights (the “ OCR” ) of 
the then Department of Health, Education and Welfare 
(“ HEW” ) conducted on-site reviews of the South Bend 
schools in 1969 and 1975. Defendants’ Exhibit (“ Def. Ex.” ) 
M-3; Def. Ex. M-6. The OCR reviewed complaints it re­
ceived about the South Bend School Corporation’s discrim­
inatory practices as well as information supplied by the 
School Corporation itself. Id. The OCR came down with 
a clear indictment of the School Corporation in a series 
of letters in 1975 and 1976. A letter dated March 13, 1975 
described evidence that the School Corporation discrimi­
nated against minorities in the recruitment, hiring and 
promotion of teachers and that it maintained a dual school 
system in which predominantly black schools received sub­
stantially less financial and other support than predomi­
nantly white schools. Def. Ex. M-6. The OCR wrote again 
on October 6, 1975, bluntly conveying its finding that the 
School Corporation had violated Title VI of the Civil 
Rights Act of 1964 by creating racially identifiable schools 
and therefore had “ an obligation to undertake sufficient 
remedial action to eliminate the vestiges of its racially 
discriminatory teacher assignment policies and practices.” 
Def. Ex. M-3, at 2. This letter ordered the School Corpo­
ration to submit within forty-five days a plan to remedy

28 No. 84-2841



32a

its violations. By a letter dated March 8, 1976, the OCR 
specifically required that the plan include assurances that 
the School Corporation would maintain nondiscriminatory 
practices for the recruitment, hiring and assignment of 
teachers. Def. Ex. M-2, at 4.

On July 20, 1976, the United States District Court for 
the District of Columbia ordered HEW to commence en­
forcement proceedings against the School Corporation 
unless HEW determined that the Corporation was in com­
pliance with Title VI. Brown v. Weinberger, 417 F. Supp 
1215, 1221, 1223-24 (D.D.C. 1976) (naming the School Cor­
poration as one of twenty-six districts “ found in violation 
of [Title VI] after HEW investigations, many of which 
were very lengthy, as long as seven years in duration, 
before being concluded with findings of default” ) (Brown 
admitted as Def. Ex. M-7). Subsequently, the federal gov­
ernment determined that the School Corporation had not 
taken adequate corrective measures and filed suit alleg­
ing that “ the South Bend Community School Corporation 
. . . ha[s] engaged in acts of discrimination which were 
intended and had the effect of segregating students and 
faculty on the basis of race in the school system.” Def. 
Ex. C-l, at 1 (consent order). The School Corporation 
agreed to a consent decree on February 8, 1980. In a 
subsequent opinion, the district court noted that the de­
segregation plan adopted on February 21, 1981 “ was the 
first comprehensive plan of its nature ever adopted for 
the benefit of students attending the schools within the 
defendant corporation. The filing of the Plan of Desegrega­
tion came twenty-seven years after Brown v. Board o f 
Education, during which period two generations of stu­
dents passed through the school system.”  United States 
v. South Bend Community School Corp., 511 F. Supp. 
1352, 1356 n.4 (N.D. Ind. 1981), affd, 692 F.2d 623 (7th 
Cir. 1982).

The consent decree provided, inter alia, that “ [t]he 
Board of School Trustees shall continue to pursue its pres­
ent affirmative action hiring policies,” Def. Ex. C-l, at

No. 84-2841 29



33a

3, and report to the federal government for the next four 
years “ the total faculty, by race, of the School Corpora­
tion,” id. at 4. Thus, in 1980, when the provision at issue 
here was adopted, the effect of past discrimination against 
black teachers and job applicants was thought serious 
enough to warrant the imposition of affirmative action pro­
grams for hiring black teachers. These programs were to 
be monitored by the federal government until the end of 
1983. Here, with plenty of record evidence of past discrim­
ination, the district court should be accorded an opportu­
nity to determine whether the level of minority hiring was 
closely related to the goal of correcting past discrimination.

The plurality opinion here seeks to deny much of this 
background by pretending that history began only in 1972 
(or perhaps 1978). The plurality opinion cites hiring sta­
tistics achieved only under the federal lash in the 1970’s 
as being somehow representative of the “ past”  in South 
Bend. This is like starting the history of slavery with the 
Emancipation Proclamation. The Supreme Court has re­
peatedly chastised the lower courts for ignoring history. 
The Court has charged school authorities with a continu­
ing affirmative duty to eliminate all vestiges of past racial 
discrimination regardless of when the discriminatory acts 
took place. In Keyes v. School Dist. No. 1, 413 U.S. 189 
(1973), the Court stated:

The courts below attributed much significance to the 
fact that many of the Board’s actions in the core city 
area antedated our decision in Brown. We reject any 
suggestion that remoteness in time has any relevance 
to the issue of intent. If the actions of the school au­
thorities were to any degree motivated by segregative 
intent and the segregation resulting from those actions 
continues to exist, the fact of remoteness in time cer­
tainly does not make those actions any less “ inten­
tional.”

Id. at 210-11. Similarly, in Green v. County School Bd., 
391 U.S. 430 (1968), the Court rejected a desegregation

30 No. 84-2841



34a

plan that would give all students the freedom to choose 
a public school because the plan did not fulfill the school 
board’s “ affirmative duty to take whatever steps might 
be necessary to convert to a unitary system in which ra­
cial discrimination would be eliminated root and branch.” 
Id. at 437-38; see also Wygant, 106 S. Ct. at 1856 (O’Con­
nor, J., concurring) (states have a “ constitutional duty to 
take affirmative steps to eliminate the continuing effects 
of past unconstitutional discrimination”) (emphasis in orig­
inal); Swann v. Charlotte-Mecklenburg Bd. o f Educ., 402 
U.S. 1, 15 (1971) (“ The objective today remains to elimi­
nate from the public schools all vestiges of state-imposed 
segregation.” ) (emphasis added).

The plurality opinion, rather naively it seems to me, also 
states that, although the School Corporation may have 
engaged in racial “ steering” by assigning black teachers 
to black schools, this has nothing to do with discrimina­
tion in hiring. In fact, the lead opinion claims that segre­
gating black teachers in black schools may improve their 
employment prospects. No doubt this was true during the 
many years when legally segregated schools in the South 
provided the only market for black teachers. But atti­
tudes, in most quarters at least, have changed markedly 
since those Jim Crow days.

Under modem conditions, we may safely assume that 
a dual school system presents an uninviting prospect to 
black job applicants. When a school board maintains racial­
ly identifiable schools, provides the black schools with less 
financial and other support than the white schools and 
staffs the black schools with black teachers who are given 
much less opportunity for promotion than are white teachers 
in the white schools, the school board sends a message 
that “ blacks need not apply”  for jobs. Systems where 
blacks are treated equally obviously present more attractive 
opportunities. The School Corporation failed to dismantle 
its segregated system, ignoring the fact that “ [m]ore than 
twenty years ago the Supreme Court expressed impatience 
for what it considered to be intolerable delays in the face

No. 84-2841 31



35a

of its clear and unambiguous decisions,”  Wade v. Hegner, 
804 F.2d 67, 72 (7th Cir. 1986). Because of this foot drag­
ging, the trier of fact could reasonably adopt a working 
hypothesis that the resulting atmosphere of discrimina­
tion produced fewer black teachers than would have been 
the case under a constitutional regime.

The Supreme Court has employed an analogous infer­
ence to justify the imposition of race-conscious remedies:

An employer’s reputation for discrimination may dis­
courage minorities from seeking available employ­
ment . . . .  In these circumstances, affirmative race­
conscious relief may be the only means available “ to 
assure equality of employment opportunities and to 
eliminate those discriminatory practices and devices 
which have fostered racially stratified job environ­
ments to the disadvantage of minority citizens.”

Local 28 o f the Sheet Metal Workers' Int'l Ass'n v. 
EEOC, 106 S. Ct. 3019, 3036-37 (plurality opinion) (quoting 
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800 
(1973)). In Sheet Metal Workers, the plurality relied on, 
inter alia, the trial court’s “ determination that the union’s 
reputation for discrimination operated to discourage non­
whites from even applying for membership,” to uphold a 
twenty-nine percent minority membership goal.

In the school desegregation context, the Supreme Court 
has held that where a court finds that a school board has 
intentionally segregated students on the basis of race in 
a “ meaningful portion” of a school system, any other seg­
regation existing in the school system will be presumed 
the result of unlawful discrimination. Keyes, 413 U.S. at 
208. The school authorities will then bear the burden of 
rebutting the prima facie case of unlawful segregative in­
tent. The Court recognized that “ there is high probability 
that where school authorities have effectuated an inten­
tionally segregative policy in a meaningful portion of the 
school system, similar impermissible considerations have 
motivated their actions in other areas of the system.” Id.

32 No. 84-2841



36a

The efforts of the plurality to uncouple discriminatory 
hiring practices from other sorts of discrimination—pri­
marily segregative practices—is not only naive, it is dan­
gerous. It suggests the re-emergence (unintended I am 
sure) of a Plessy v. Ferguson—separate but equal—sort 
of approach. The long history of discrimination in this 
country teaches that those who would keep blacks down 
by keeping them apart are also likely to keep them away 
in the first place. An intent to segregate operates in 
tandem with an intent to exclude. Hence, all the evidence 
of past discriminatory practices by the South Bend Com­
munity School Corporation weighs on the scales determin­
ing the need for remedial action.

The plurality asserts that, even if the record does con­
tain evidence of past discrimination by the School Corpo­
ration, the record contains no evidence, nor did the School 
Corporation argue at trial, that the decision to adopt the 
layoff plan was motivated by a desire to remedy that dis­
crimination. This is not correct. The School Corporation 
argued at trial that a remedial purpose motivated the 
adoption of Resolution 1020 calling for increases in minori­
ty hiring—remedial increases that the layoff provision was 
designed to preserve. The School Corporation’s counsel 
declared in his opening statement at trial:

We will have, perhaps, a bit of evidence with re­
spect to the relationship between that—no minority 
layoff clause and what was referred to as Resolution 
1020 which was a resolution of the Board of Trustees 
passed in November or December of 1978 at which 
time the School Corporation for the first time in any 
formal sense adopted an employment policy reflecting, 
in effect, or at least [an] antecedent of an affirmative 
action plan.

It occurred at a time in the mid ’70’s following in­
quiries by State authorities and the Federal Justice 
Department concerning the fact there wras—there 
were racially identifiable schools within the system

No. 84-2841 33



37a

and the focus of the entire community reflected by 
the Board of Trustees and the administration cen­
tered upon rectifying that situation.

It ultimately culminated in litigation and a consent 
order of which I am sure this Court is very familiar, 
the consent order entered in the segregation case on 
February 8, 1980.

Trial Transcript at 12 (Apr. 26, 1984).
Hollis Hughes, Jr., a member of the Board of Trustees 

at the time of the adoption of the hiring goal, testified 
at trial that he had believed “ there was [a] need for an 
Affirmative Action policy”  at the time Resolution 1020 
was adopted. Id. at 89. He said that the Board had 
discussed at its meetings the fact that racially identifiable 
schools existed, id. at 91; that the minority teachers were 
concentrated along with minority students in racially iden­
tifiable schools, id. at 92; that attempts were made “ in 
approximately ’76 to correct some of that imbalance, al­
though not very strong attempts it appeared,” id.; that 
as a member of the Board he was familiar with the fed­
eral government’s concerns in the late 1970’s over the dis­
criminatory assignment policies, id.; and that “ the School 
Corporation was notified in May of 1978 by the [State of 
Indiana] Office of Schoolhouse Planning that it could not 
proceed with any construction of new facilities until such 
time as it addressed the issue of racially imbalanced schools 
in the district,”  id. at 93. Hughes testified that the layoff 
provision was intended to preserve the affirmative action 
hiring gains. Id. at 95-96. He also testified about the ori­
gins of the affirmative action hiring program: “ The evolu­
tion of the Resolution 1020 started with a former Board 
of Trustees member, Mrs. Eugenea Braboy, who upon leav­
ing the Board made a very strong statement to the ef­
fect that racial imbalance and the issue of racial impro­
prieties within the school district needed to be addressed.” 
Id. at 90. The School Corporation also introduced at trial 
documentary evidence of its remedial purpose, including 
the correspondence between HEW and the School Corpo­

34 No. 84-2841



38a

ration and minutes of meetings at which the school board 
heard testimony that qualified black applicants for 
teaching positions had been refused employment because 
of their race. Def. Ex. K-2.

Based on the evidence in the record, it is ridiculous to 
claim, as does the plurality, that the School Corporation’s 
layoff provision was, as a matter of law, not intended 
to further a remedial purpose. The fact that the School 
Corporation may also have been motivated by a non­
compelling interest, such as that supplied by a role model 
theory, does not cancel out or dilute the compelling 
remedial purpose.

The plurality erroneously suggests that only statistical 
comparisons of hiring percentages with percentages of 
qualified applicants within the relevant labor pool are pro­
bative of job bias. Of course, courts routinely consider 
other, more direct, evidence of discrimination and, in fact, 
permit the use of statistical evidence largely because it 
is often the only evidence available. As the Supreme 
Court noted, “ Statistics showing racial or ethnic imbalance 
are probative . . . only because such imbalance is often 
a telltale sign of purposeful discrimination . . . .  ‘In many 
cases the only available avenue of proof is the use of racial 
statistics to uncover clandestine and covert discrimination 
by the employer or union involved.’ ”  International Bhd. 
o f Teamsters v. United States, 431 U.S. 324, 339 n.20 
(1977) (quoting United States v. Ironworkers Local 86, 443 
F.2d 544, 551 (citing cases), cert, denied, 404 U.S. 984 
(1971)). Although we have in the record minority teacher 
percentages (e.g., 3.5% in 1963-64) that are, at least, 
strongly suggestive, the record does not seem to contain 
labor pool statistics. We do not know whether these sta­
tistics exist or what they would reveal if they do exist. 
This is an inquiry which the trier of fact could reasonably 
undertake on remand. The district court could also deter­
mine exactly how probative of past employment discrimi­
nation were the other facts of record, many of which we 
have recited here.

No. 84-2841 35



39a

Justice O’Connor would require a remedial plan to be 
“ ‘narrowly tailored’ to achieve its remedial purpose,” 
Wygant, 106 S. Ct. at 1857; the plan must implement “ that 
purpose by means that do not . . . unnecessarily tram­
mel the rights . . .  of innocent individuals directly and 
adversely affected by a plan’s racial preference,”  id. at 
1853-54. And I certainly agree that this aspect of affir­
mative action is of crucial importance. In this connection, 
the defendants described in their brief on rehearing en 
banc additional facts that may now be relevant in light 
of the Supreme Court’s recent affirmative action opinions. 
Defendants’ Brief on Rehearing En Banc at 21-25. Those 
facts include measures by the School Corporation to mini­
mize the impact of the layoffs on white employees. For 
example, the collective bargaining agreement provided that 
any teacher laid off during the term of the agreement would 
be recalled first when the School Corporation began hiring 
teachers again. In addition, the agreement created fifteen 
permanent substitute positions to be filled by the laid-off 
white teachers in order of seniority and gave the laid-off 
teachers preferential rights to temporary substitute posi­
tions, for which they were paid a daily rate equal to the 
amount of their permanent annual salary divided by the 
number of days in the school year. The defendants con­
tend that only thirteen to sixteen of the plaintiffs would 
not have been laid off under a straight seniority layoff 
and that all laid-off teachers had the opportunity to sub­
stitute teach a high percentage of the time. Id. at 23-24. 
Given these facts, the defendants argue, the layoff pro­
vision for the three-year life of the agreement is narrowly 
tailored to achieve the School Corporation’s goals of reme­
dying the effects of the prior racially discriminatory hir­
ing practices and achieving a racially integrated faculty. 
If the case were remanded, the district court could ex­
plore the significance, if any, of these and other additional 
facts relating to the layoff provision. And the court could 
make findings about the appropriateness of the layoff pro­
vision measured against the court’s assessment of the pre­
cise nature of the School Corporation’s compelling pur­
pose.

36 No. 84-2841



40a

Permitting the district court to receive new evidence 
does not give the defendants two bites at the apple. Be­
cause of the radical shift in legal premises between the 
time of trial and the time of this en banc decision, the 
defendants have been unfairly handicapped in their effort 
to adduce relevant evidence. What evidence is relevant 
has been a question with rapidly changing answers over 
the life of this case. It is unfair to expect the defendants 
to have presented all the best evidence against a backdrop 
of rapidly changing legal rules.

I have no idea what conclusion the district court would 
reach on remand. I have outlined some of the factors 
which I think could figure in the making of additional find­
ings on remand as well as the areas where additional evi­
dence might be helpful. But I do think that the district 
court that found the original facts, and that might have 
found important additional facts, is in a better position 
than we to apply in the first instance the new Supreme 
Court law to those wide-ranging facts. This is the order­
ly and conservative method of addressing the issues. 
There is no need for a rush to judgment.

We as a society still have a great deal of work to do 
in remedying our legacy of discrimination against minor­
ities. But whatever we do must not unnecessarily or un­
fairly infringe on the rights of individual members of the 
majority. The South Bend Community School Corporation 
and its teachers deserve high commendation for their good 
faith efforts to meet the obligations of justice in these 
respects. As the Supreme Court continues to clarify the 
boundaries of permissible action, I hope other employers 
and their employees will undertake in good faith to set 
right old wrongs in accordance with new, clearer and, 
hopefully, more just rules.

I respectfully dissent.

Fairchild, Senior Circuit Judge, with whom Circuit 
Judges Cummings, W ood, Jr., and C udahy join, dissent­
ing. I address one additional facet of the case which I 
find troubling.

No. 84-2841 37



41a

The judges in the majority decline to direct the district 
court on remand to decide whether the Board had an ade­
quate basis for belief that affirmative action was required 
to remedy past discrimination. They consider that inquiry 
unnecessary because they conclude that in any event, the 
formula included in the 1980-83 collective bargaining agree­
ment went too far.

With all respect, it seems to me that if there were a 
proper basis for remedial action, overbreadth of the for­
mula should not end the case.

Assuming that the majority is correct in determining 
that the formula cannot be sustained, particularly under 
worst-case scenarios, 1 suggest that the focus should then 
be on whether the departure from strict seniority which 
actually occurred can, in whole or in part, be justified as 
affirmative action by finding whether the Board had an 
adequately based belief that past discrimination required 
remedial action.

We know that before the 1982 lay-off, 13.0% of the 
teachers were black. Upon the lay-off, the percentage in­
creased to 13.8%. Did the Board then have an adequate 
basis for belief that there had been discrimination against 
blacks in the past? Did it have an adequate basis for belief 
that but for the discrimination, the percentage would have 
been 13 or some higher figure? If the facts were devel­
oped on remand and would justify affirmative action suf­
ficient to maintain 13%, only those plaintiffs who would 
not have been laid-off if only the 13% level were main­
tained would be entitled to relief.

Put another way, if the formula went too far, then ac­
cepting the principle that properly based affirmative ac­
tion is permissible, Wygant, 106 S. Ct. at 1847, it seems 
to follow that recovery in this case should be limited to 
those plaintiffs whose lay-offs fell between what action 
would have been permissible and what was actually done.

I am aware that in Wygant the majority of the justices 
of the Supreme Court focused on the formula as is being 
done here. Respectfully, however, it seems to me that

38 No. 84-2841



42a

there is room to address whether, and to what extent, 
the departures from strict seniority which actually oc­
curred were justified as a remedy for a level of minority 
representation held down by past discrimination.

A true Copy:
Teste:

No. 84-2841 39

Clerk o f the United States Court o f 
Appeals for the Seventh Circuit

USCA 79004—Midwest Law Printing Co., Inc., Chicago—5-18-87—450



43a

'tSmtefr J^iatps (Enurt of appeals
^ o r  ttje Ĵ e&cntlj dircutt 

Chicago, <311Itnot2 60604

February 12, 1986 
Before

Hon. W alter J. Cummings, Chief Judge 
Hon. W illiam J. Bauer, Circuit Judge 
Hon. H arlington W ood, Jr., Circuit Judge 
Hon. Richard D. Cudahy, Circuit Judge 
Hon. Richard A. Posner, Circuit Judge 
Hon. John L. Coffey, Circuit Judge 
Hon. Joel M. Flaum, Circuit Judge 
Hon. Frank H. Easterbrook, Circuit Judge

ELM ER BRITTON, et al.,
Plaintiffs-Appellants,

No. 84-2841 vs.

SOUTH BEND COMMUNITY 
SCHOOL CORPORATION, et 
al.,

Defendants-Appellees.

Appeal from the United 
States District Court 
for the Northern Dis­
trict of Indiana, South 
Bend Division.

> -------
Nos. 82 C 283 

82 C 486

Allen Sharp, Judge.

O R D E R
On consideration of the petition for rehearing and 

suggestion for rehearing en banc filed by counsel for 
the plaintiffs-appellants in the above-entitled cause, and 
the response therein filed by counsel for the defendants- 
appellees, a vote of the active members of the court having



44a

been requested, and a majority* of the judges in regular 
active service having voted to rehear this case en banc,

IT IS HEREBY ORDERED that the aforesaid petition 
for rehearing and suggestion for rehearing en banc be, and 
the same is, GRANTED.

IT IS FURTHER ORDERED that the panel opinion 
and judgment entered October 21, 1985 are hereby 
VACATED, and that this case will be reheard en banc at 
the convenience of the Court.

‘ The Honorable Kenneth F. Ripple, an active member of the 
Court did not participate in consideration of the petition for 
rehearing en banc.

The Honorable Thomas E. Fairchild was a member of the 
original panel, but he did not participate in the vote on sugges­
tion for rehearing en banc.



45a

JUDGMENT -  ORAL ARGUMENT

^Inxttb ^States (Enurt nf JVpppals
(ifor tfye Jltefrertilj (Hircuit 

©Ijtcago, Illinois 60604

October 21, 1985

Before
Hon. Richard D. Cudahy, Circuit Judge 
Hon. Richard A. Posner, Circuit Judge 
Hon. Thomas E. Fairchild, Senior Circuit Judge

ELM ER BRITTON, et al.,
Plaintiffs-Appellants,

No. 84-2841 vs.

Appeal from the United 
States District Court 
for the Northern Dis­
trict of Indiana, South 
Bend Division.

SOUTH BEND COMMUNITY f  Nos 82C283 
SCHOOL CORPORATION, et 82 C 485
al•»

Defendants-Appellees. J Judge Allen Sharp

This cause was heard on the record from the United 
States District Court for the Northern District of Indiana, 
South Bend Division, and was argued by counsel.

On consideration whereof, IT IS ORDERED AND 
ADJUDGED by this Court that the judgment of the said 
District Court in this cause appealed from be, and the same 
is hereby, AFFIRMED, with costs, in accordance with the 
opinion of this Court filed this date.



46a

la Ilf*

United States GImtrt nf Appeals
$ a r  tfj? Sfttettflf CUfrnitt

No. 84-2841
E lmer B ritton, et al.,

Plaintiffs-Appellants, 
v.

South Bend Community School Corporation, et al.,

Defendants-Appellees.

Appeal from the United States District Court for the 
Northern District o f Indiana, South Bend Division. 
Nos. 82 C 283 and 82 C 485 -A llen  Sharp, Judge.

Argued May 28, 1985—Decided October 21, 1985

Before Cudahy and Posner, Circuit Judges, and Fair- 
child, Senior Circuit Judge.

Cudahy, Circuit Judge. This is a “ reverse discrimina­
tion”  case in which we are required to determine whether 
a clause in a collective bargaining agreement between a 
teachers’ union and a school district that prohibits layoffs 
of “ minority”  teachers, and layoffs of white teachers pur­
suant to that clause, violate either the Equal Protection 
Clause of the Fourteenth Amendment or Title VII of the 
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. 
Although the district court relied on its earlier decision 
in Janouriak v. Corporate City o f  South Bend, 576 F. 
Supp. 1461 (N.D. Ind. 1983), rev ’d, 750 F.2d 557 (7th Cir. 
1984), which we reversed after the district court issued



47a

its opinion in this case approving the clause, 593 F. Supp. 
1223 (N.D. Ind. 1984), we affirm the district court.

I.
A.

Between the years 1980 and 1983 teacher employment 
in the South Bend public schools was governed by a col­
lective bargaining agreement between the South Bend 
Community School Corporation (the “ School Corporation” ) 
and the National Education Association of South Bend, 
the exclusive bargaining represenative of teachers in the 
South Bend public school system. Article XXIII of the 
1980-83 Agreement was entitled “ Reduction in F o rce - 
Recall”  and provided in Section 9: “ No minority bargain­
ing unit employee shall be laid off.”  The term “ minor­
ity”  in this “ no minority layoff provision”  (sometimes 
simply the “ provision”  or “ clause” ) referred only to black 
teachers. The clause had not appeared in any prior col­
lective bargaining agreement between the School Corpo­
ration and NEA-South Bend.

Prior to and during the negotiations over the 1980-83 
Agreement, the School Corporation anticipated the pos­
sibility of future layoffs because of declining school enroll­
ment and budgetary constraints. It proposed the no minor­
ity layoff provision to protect the gains it had made in 
hiring black teachers to reach the goal, mandated by a 
prior consent decree, of having the minority representa­
tion on the teaching staff approximately equal that of the 
minority student population. The negotiations leading up 
to the 1980-83 Agreement lasted two weeks. Represen­
tatives of NEA-South Bend met with the teachers after 
the negotiations concluded to discuss the terms of the 
Agreement. Article XXIII, Section 9 was discussed at 
that meeting. 593 F. Supp. at 1226. The exact language 
of the provision was not presented at the meeting, but 
the document distributed to the teachers listed changes 
in articles from previous contracts and clearly indicated 
that the clause would prefer blacks over whites in the



48a

event of layoffs. Teachers who were not members of the 
NEA-South Bend (about one-fourth of the South Bend 
teachers) were allowed to attend that meeting but were 
not allowed to vote. Those teachers who were members 
of the union ratified the Agreement by a substantial 
margin. Inj. Tr. 83-88.1 No member of the union ever filed 
a grievance alleging that he or she was not fairly repre­
sented by the NEA-South Bend in the negotiations 
leading up to the 1980-83 Agreement. 593 F. Supp. at 
1226.

Late in April of 1982, 188 white teachers were notified 
that their contracts were being considered for cancella­
tion. After various proceedings including an all-night hear­
ing on June 1 to 2, 1982, the Board passed a resolution 
on June 7 affirming the contract cancellations and laying 
off the 188 teachers. See 593 F. Supp. at 1226-27. Pur­
suant to Article XXIII, Section 9 of the 1980-83 Agree­
ment, no black teachers were laid off. The number of 
teachers laid off was subsequently reduced to 146 under 
a consent order in South Bend Community School Corp. 
v. National Education Association-South Bend, No. N-7015 
(St. Joseph Cir. Ct., approved Sept. 29, 1982), in which 
the School Corporation agreed to recall forty-two teachers. 
593 F. Supp. at 1227 n.2. Because of the no minority layoff 
provision, forty-eight black teachers with certifications 
similar to, but with less seniority than, forty-eight of the 
laid off white teachers remained on the job.

On June 11, 1982, two of the laid off white teachers filed 
a class action suit in the United States District Court for 
the Northern District of Indiana, alleging that the layoffs 
discriminated against them on account of their race in 
violation of the Fourteenth Amendment, 42 U.S.C. 
§§ 1981 & 1983, Title VII of the Civil Rights Act of 1964,

1 References to the transcript of the evidentiary hearing on the 
preliminary injunction motion held on November 9 and 10, 1982, 
will be designated “ Inj. Tr.”  References to the transcript of the 
bench trial on liability held on April 26 and 27, 1984, will be 
designated “ Tr. T r.”



49a

42 U.S.C. § 2000e et seq., and the Indiana Teacher Tenure 
Act, Ind. Code § 20-6.1-4-1 et seq. (1982). Britton v. 
South Bend Community School Corp., No. S82-283 (N.D. 
Ind. filed June 11, 1982). The complaint was amended to 
delete the class action aspect, and eventually forty-one in­
dividual teacher plaintiffs were named instead.2

On October 5, 1982, the teachers filed an action in the 
Indiana courts against the School Corporation and its 
Board of Trustees (sometimes simply the “ Board” ) for a 
mandate under section 20-6.1-4-12 of the Indiana Code 
based on alleged violations of the Indiana Teacher Tenure 
Act, violations of rights resulting from the manner in 
which the layoff hearings were conducted and other state 
claims. Andrews v. South Bend Community School Corp., 
No. P-1077 (St. Joseph Cir. Ct. filed Oct. 5, 1982). The 
defendants removed this case to federal court, where it 
received case number S82-485 and was consolidated with 
Britton.

Plaintiff teachers filed a motion for a preliminary injunc­
tion on October 5, 1982, Record Item 14, upon which the 
court held an evidentiary hearing on November 9 and 10, 
1982, and oral argument on December 2, 1982. Cf. 593 
F. Supp. at 1228. The motion was denied by order on 
December 15, 1982. The issue of liability was tried to the

2 All of the plaintiff teachers have duly complied with the admin­
istrative filing procedures requisite for bringing a Title V II race 
discrimination suit and have received right to sue letters. Tr. Tr. 
7; Record Item 28. A  motion for partial summary judgment against 
two plaintiff teachers, H. Keller and L. Edler, was filed on De­
cember 2, 1982. That motion was granted on March 10, 1983, and 
those parties dismissed from the action. 593 F. Supp. at 122 8 ,

Fifteen of the plaintiffs were actually recalled for the 1982-83 
school year, but the remaining twenty-six were not. Thirteen of 
those teachers not immediately recalled apparently had enough 
seniority to withstand the layoffs but for the no minority layoff 
provision. The remaining thirteen would need to prevail on their 
various pendent state claims as well as on the federal claims in 
order to establish a right to reinstatement or damages. PI. Br. 
at 8; App. 41.



50a

court in a two-day trial on April 26 and 27, 1984. Both 
sides submitted post-trial briefs and proposed findings of 
fact and conclusions of law. Oral argument was heard on 
August 3, 1984.

On September 25, 1984, the district court entered a 
memorandum and order. 593 F. Supp. at 1223. In its deci­
sion the district court found for the defendants on the 
federal claims, holding the no minority layoff clause to 
be constitutional and permissible under Title VII. The 
court declined to exercise its pendent jurisdiction over the 
plaintiffs’ state law claims, and dismissed them without 
prejudice. The teachers appeal, arguing that the no minor­
ity layoff clause (and the layoffs they suffered pursuant 
to it) violate (1) the Equal Protection Clause of the Four­
teenth Amendment, (2) Title VII of the Civil Rights Act 
of 1964, 42 U.S.C. § 2000e et seq., and (3) the Indiana 
Teacher Tenure Act, Ind. Code § 20-6.1-4-1 et seq. (1982).

B.
The long history of racial segregation and discrimina­

tion in Indiana is chronicled in detail in United States v. 
Board o f School Commissioners o f  Indianapolis, 332 F. 
Supp. 655, 658-77 (S.C. Ind. 1971), affd , 474 F.2d 81 (7th 
Cir.), cert, denied, 407 U.S. 920 (1972); see also Note, In­
dianapolis Desegregation: Segregative Intent and the In­
terdistrict Remedy, 14 Ind . L. Rev . 799, 803-04 (1981). 
Slavery and legally sanctioned discrimination against blacks 
existed during Indiana’s territorial period and during its 
early history as a state. 332 F. Supp. at 659-61, 663. Even 
in the pre-Civil War years Indiana’s public schools were 
segregated or simply excluded black children. Id. at 663. 
Ratification of the Fourteenth Amendment had little ef­
fect in Indiana’s schools; the state passed a statute in 1869 
authorizing black children to attend school, but requiring 
segregated systems. Id. at 663-64. Indeed, the statutes 
of Indiana required segregated schools up until 1949. Act 
of March 8, 1949, ch. 186, 1949 Ind. Acts 603 (present ver­
sion codified at Ind. Code § 20-8.1-2-1 et seq. (1982)).



51a

Our review of the record indicates that the earliest 
period for which there is information about the percent­
age of minority teachers is 1963-64. For that period the 
minority teaching staff in South Bend was only 3.5% of 
the total teaching staff. Def. Ex. H. In 1968-69 minority 
teachers accounted for a slightly increased 6.8% of the 
teaching staff.3 Id. For 1969 and later years, the record 
includes more expansive evidence of past discrimination 
by South Bend in the recruitment, hiring and promotion 
of minority teachers.4 On March 13, 1975, Kenneth Mines, 
director for Region V of the Office for Civil Rights of the 
then Department of Health, Education, and Welfare, sent 
a letter to the Superintendent of the School Corporation. 
Def. Ex. M-6. The letter refers to an October 1969 on­
site review of the School Corporation’s compliance with 
Title VI of the Civil Rights Act of 1964 , 42 U.S.C. 
§ 2000d. The review encompassed complaints by several 
groups and individual citizens of discriminatory and 
segregative practices,5 and other aspects of the School 
Corporation’s compliance. The letter listed five areas in 
which the Office for Civil Rights found evidence of racial 
discrimination on the part of the School Corporation. Two 
of these areas were recruitment of minority teachers and

3 In 1968-69 minority students comprised sixteen percent of the 
student body. Def. Ex. H. The corresponding figure for 1963-64 is 
not in the record.
4 The focus of the dissent is on the better documented years 
around and after 1978. This approach, however, hardly provides 
an adequate perspective on the relevant history.
5 The dissent says that “ there need be no correlation between” 
segregation and discrimination against black teachers. Whatever 
may be the merit of this proposition as a bit of abstract logic, 
we think it is unsupportable in the real world. Of course, legally 
segregated schools in the South before Brown v. Board o f Educa­
tion may have created a unique demand for black teachers, but 
this says little about racial dynamics in South Bend, Indiana. In 
general, we think the vagaries of numbers and ratios in various 
real and hypothetical situations are less restrictive than the simple 
history of black teacher participation (or non-participation) in the 
South Bend schools.



52a

promotions for black and female teachers. The letter also 
stated that the Office had reviewed recent (January and 
October 1974) statistical forms completed by the Super­
intendent’s office. According to the letter, these forms “ in­
dicate little improvement with regard to hiring and pro­
motion of minority teachers.”  Def. Ex. M-6, at 2.

Superintendent Dake responded in a lengthy letter of 
April 11, 1975. Def. Ex. M-5. Among other things the let­
ter detailed the School Corporation’s efforts to recruit 
minority teachers, which included visits to a number of 
predominantly black colleges and universities in 1971-72, 
and more in 1973. The letter listed the number of new 
minority staff hired for the seven academic years 1968-69 
to 1974-75 (totalling 165) and tried to explain the small 
change in total minority staff by the number of minority 
staff resignations (109) over the same period.6 Def. Ex. 
M-5, at 6-7.

In August 1975 the Regional Office of the OCR sent 
a letter to many school districts, including South Bend. 
Def. Ex. M-4. The letter concerned the possible discrimi­
natory impact of layoffs carried out pursuant to seniority 
rules. The letter stated that seniority rules were not 
racially unbiased if they perpetuated the effect of past 
discriminatory personnel practices in recruitment, hiring, 
promotion and assignment. The letter noted that in the 
case of school districts that had failed to hire minority 
teachers until recent years, and so would have a dispro­
portionate number of such persons with low seniority 
status, the use of a system-wide standard would have a 
disproportionate—and hence potentially discriminatory- 
effect on minority group persons. Def. Ex. M-4, at 1-2.

6 The letter did not compare the resignation rate of black teachers 
to that of white teachers or otherwise attempt to explain the 
number of resignations of black teachers. There was testimony at 
one of the Board’s 1978 meetings that the turnover of black teachers 
over the period was comparable to that of white teachers. Def. 
Ex. K-3, at 1.



53a

The Office for Civil Rights conducted a second on-site 
review in 1975, but remained unsatisfied. By letter of Oc­
tober 6, 1975, the Office informed the School Corporation 
that it had determined that the School Corporation was 
not in compliance with the provisions of Title VI. Def. 
Ex. M-3. In particular, the letter remarked on the racially 
discriminatory teacher assignment practices of the School 
Corporation, and required the School Corporation to sub­
mit within forty-five days a plan that would eliminate any 
vestiges of past discrimination. Def. Ex. M-3, at 3. After 
further consultation and correspondence with the School 
Corporation, the Office for Civil Rights, by letter of March 
8, 1976, directed the School Corporation to submit a com­
pliance plan that included an assurance that the Corpora­
tion would in the future maintain non-discriminatory 
recruitment, hiring and assignment practices. Def. Ex. 
M-2, at 4.

Meanwhile, a number of individuals had filed an action 
in the United States District Court for the District of Co­
lumbia seeking an injunction directing the Department of 
Health, Education, and Welfare to commence enforcement 
proceedings against several school districts that had been 
found by HEW not to be in compliance with Title VI. 
Among the named school districts was the South Bend 
Community School Corporation. The District Court found 
that the School Corporation had been found in violation 
of Title VI and that neither voluntary compliance had 
been achieved nor enforcement proceedings had been in­
stituted, and ordered HEW to commence enforcement pro­
ceedings. Brown v. Weinberger, 417 F. Supp. 1215 (D.D.C. 
1976).

In 1978 the Board of Trustees considered certain aspects 
of past discrimination in the school system and ways to 
eradicate its effects. The discussions began when, at the 
last meeting during her term as a member of the Board, 
held on June 19, 1978, Ms. Eugenia Braboy moved that 
the Board adopt a resolution setting a five-year goal 
within which to adopt and implement programs to reduce 
the racial imbalance in the school system (and especially



54a

that associated with racially identifiable schools). The pro­
posed resolution passed unanimously. Def. Ex. K-l.

Discussions were held at several subsequent Board 
meetings focusing on prior discrimination manifested in 
the extremely low percentages of minorities on the School 
Corporation’s teaching staff. Tr. Tr. 90-91; Def. Exs. K-l 
to K-5 (minutes of school board meetings); 593 F. Supp. 
at 1225. Past discrimination in the recruitment, hiring and 
assignment of minority teachers was said to be reflected 
in and to be the cause of the gross disparity between the 
percentage of black teachers employed by the School Cor­
poration and the percentage of blacks in either the stu­
dent body or local community. Def. Exs. E -l, E-2. The 
percentage of blacks in the student body and in the com­
munity approximated 22% in late 1978 while the percent­
age of black teachers was only 10.4%.

The statistical evidence presented was not merely of a 
present disparity between the percentages of minority 
teachers and minority students. Rather it ranged over a 
period of at least eight years. See e.g., Def. Ex. K-3; at 
2; see also Def. Exs. E -l, E-2.

Although no statistics were presented to the effect that 
the School Corporation had been hiring a disproportionate­
ly small number of black teachers,7 there was testimony 
that there was no shortage of qualified black applicants 
for teaching positions. Def. Ex. K-2. There was testimonial 
evidence that implied that five particular qualified black 
applicants had not been hired because of their race. Def. 
Ex. K-2, at 2. Testimonial evidence also established that

7 A t oral argument counsel for the plaintiff teachers stated that 
records on the race of applicants is only available for one year. 
Def. Ex. K-3, at 6. Counsel for the School Corporation stated that 
figures on the national or state pool of qualified black teaching 
applicants were probably not available. This is apparently one of 
the reasons Resolution 1020 as adopted set the goals in terms of 
the percentage of minority students in the school district; the 
School Corporation had those figures readily available. Def. Ex. 
K-5, at 10.



55a

the School Corporation had a practice of posting full-time 
vacancies so they could be filled by hiring substitute 
teachers already employed by the School Corporation, and 
that principals’ requests that a particular substitute be 
hired for a vacancy were often honored. Only if no can­
didate could be found within the School Corporation would 
the position be advertised and recruiting from the out­
side take place. Def. Ex. K-3.

As a result of the discussions at the meetings held dur­
ing the fall, on December 18, 1978, the Board adopted 
Resolution 1020. App. 31-34.8 Resolution 1020 states that 
“ [p]roviding the community with quality education should 
be the top priority in the schools,”  App. 31, and sets out 
the School Corporation’s policies and employment goals. 
Two of the goals adopted in Resolution 1020 were (1) that 
the School Corporation would strive to increase the 
percentage of minorities in its teaching force until that 
percentage “ approximately correspond[ed]” to the percent­
age of minorities in its student body, and (2) that the 
School Corporation would “ endeavor to exceed each year 
the previous year’s employment figures for minority per­
sonnel . . . until the minimum desired percentages [were] 
reached.” App. 34. In the three years following the adop­
tion of Resolution 1020 the School Corporation hired a 
greater percentage of black teachers than it had in any 
comparable prior period. As a result, the percentage of 
black teachers rose from 10.4% for the 1978-79 academic 
year to 13.0% for the 1981-82 academic year. During the 
latter year black pupils made up 25.42% of the student 
population. 593 F. Supp. at 1225.

The Department of Justice filed suit against the School 
Corporation on February 8, 1980. United States v. South

8 An additional reason given for the adoption of Resolution 1020 
was that students, both -black and white, needed a sufficient 
number of minority teachers to act as role models. See Inj. Tr. 
103; Def. Ex. H, at 2; App. 31. W e, of course, do not rest our 
decision on any particular theory of role modeling and the dissent’s 
emphasis on this subject is misplaced.



56a

Bend Community School Corp., No. S80-35 (N.D. Ind. filed 
Feb. 8, 1980).9 Its complaint alleged that the School Cor­
poration had engaged in acts of racial discrimination in­
tended to have and having the effect of segregating stu­
dents and teachers on the basis of race. Among these acts 
were the hiring, promotion and assignment of faculty on 
the basis of race. Appended to the complaint was a cer­
tificate by the Attorney General (as required by 42 U.S.C. 
§ 2000c-6(a)) stating that he had received complaints of 
racial discrimination and school segregation and had in­
vestigated the complaints and determined that they were 
meritorious.

The case was settled by a consent order the same day 
it was commenced. Def. Ex. C-l, App. 35. As in most con­
sent decrees, the defendant School Board denied that it 
had engaged in intentional acts of racial discrimination.10 
The consent order required the School Corporation to 
develop a specific desegregation plan for student assign­
ments by September 1, 1980. The consent order also re­
quired the School Corporation to rectify the effect of past 
discrimination against teachers, and provided:

6. By the beginning of the 1980-81 school year, the 
faculties of each school operated by the School Cor­
poration shall be appropriately adjusted so that each

9 The district judge below took judicial notice of the record in 
the desegregation case, over which he had presided. Inj. Tr. 100.
10 The present Assistant Attorney General for Civil Rights makes 
much of this denial in a misleading footnote to his am icus brief. 
U.S. Br. at 5 n.4. The government neglects the fact that almost 
all consent decrees take the form “ W e didn’t do it. W e agree not 
to do it again.” The reasons for this, at least in the discrimina­
tion context, are compellingly set out by Justice Blackmun in his 
opinion in United Steelworkers v. Weber, 443 U .S. 193, 209-11 
(1979) (Blackmun, J. concurring). Further, the government ignores 
the fact that it alleged that there had been such discrimination, 
and must have had what it considered to be strong evidence of 
this because the Attorney General certified that the complaints 
of discrimination were meritorious and the department brought 
suit.



57a

approximately reflects the average racial composition, 
teaching experience, and teaching disciplines of the 
faculty of the school system as a whole. Educational 
and extracurricular programs shall be equal for each 
school serving similar grade levels and similar student 
needs.

8. The Board of School Trustees shall continue to 
pursue its present affirmative action hiring policies.

Consent Order at 3, App. 37. The Board’s affirmative ac­
tion policy was set out in Resolution 1020. Thus, the con­
sent order, by mandating continuation of that policy, re­
quired the Board to continue to increase the percentage 
of minorities on its teaching staff until that percentage 
equalled or roughly approximated the percentage of minor­
ity pupils in the student body, and to endeavor to exceed 
each year the previous year’s employment figures for mi­
nority personnel. And it was in furtherance of that policy, 
in light of expected school enrollment and budgetary con­
straints, that the no minority layoff clause was proposed 
by the School Corporation, agreed to by the teachers’ 
negotiators and strongly ratified by the union teachers.11 11

11 There is no evidence at all that the teachers did not know what 
they were doing or could not make their views felt—as the dis­
sent suggests. There is no reason to believe that the teachers did 
not or were not able to press their views about key provisions 
on the leadership. It is much more likely that the white teachers 
recognized the educational importance of adequate minority repre­
sentation on the teaching staff and were willing to go to the 
unusual lengths of putting their own interests at risk in support 
of that principle.

W e are not insensitive to the painful impact of the seniority pro­
visions on a number of white teachers. But the teachers were not 
oblivious of these possibilities when they voted for the provision. 
Apparently they recognized that to set right longstanding injustice 
some sacrifice by the majority was inescapable.



58a

II.
The Supreme Court has consistently held that a govern­

mental body may use race-conscious plans to eradicate the 
effects of past discrimination. Fullilove v. Klutznick, 448 
U.S. 448 (1980); Regents o f the University o f  California 
v. Bakke, 438 U.S. 265 (1978); United Jewish Organiza­
tions v. Carey, 430 U.S. 144 (1977); Swann v. Charlotte- 
Mecklenburg Board o f Education, 402 U.S. 1 (1971); 
McDaniel v. Barresi, 402 U.S. 39 (1971); North Carolina 
Board o f Education v. Swann, 402 U.S. 43 (1971). In 
Bakke and Fullilove the court held that affirmative ac­
tion plans voluntarily adopted by governmental bodies are 
not per se unconstitutional. Fullilove, 448 U.S. at 482; 
Bakke, 438 U.S. at 287; see Janouhak v. Corporate City 
o f South Bend, 750 F.2d 557, 561 (7th Cir. 1984), petition 
fo r  cert, filed, 53 U.S.L.W. 3896 (U.S. June 10, 1985) (No. 
84-1936). Similarly, the Court has held that employers may 
adopt affirmative action plans to remedy past discrimi­
nation. United Steelworkers o f America v. Weber, 443 U.S. 
193 (1979); Janouhak, 750 F.2d at 561. Thus, race-conscious 
programs do not, as a matter of law, violate either Title 
VII or the Equal Protection Clause of the Fourteenth 
Amendment. Janouhak, 750 F.2d at 561. The inquiry 
before this court, therefore, is whether this particular af­
firmative action plan is valid under the constitution and 
Title VII. We will begin with an analysis of the plan pro­
vision under Title VII. III.

III.
In United Steelworkers o f  Am erica v. Weber, 443 U.S. 

193 (1979), the Supreme Court provided guidelines for 
analyzing the validity of an affirmative action plan under 
Title VII. The Court declined in Weber to promulgate a 
general test to distinguish between permissible and im­
permissible affirmative action plans. Weber, 443 U.S. at 
208. However, the Court did find that the plan before it 
lay on the permissible side of the line. Id. The plan had 
been entered into by the employer and the union in order



59a

to “ eliminate conspicuous racial imbalances in Kaiser’s 
then almost exclusively white craftwork forces,”  443 U.S. 
at 198, by reserving for blacks half the openings in newly- 
created in-plant training programs. Prior to initiation of 
the in-plant training programs, Kaiser had only hired as 
craft-workers for its plants persons with prior craft ex­
perience (who were almost all white because craft unions 
had long excluded blacks). Id. The Court took judicial 
notice of the fact that craft unions excluded blacks. 443 
U.S. at 198 n.l (“ Judicial findings of exclusion from crafts 
on racial grounds are so numerous as to make such ex­
clusion a proper subject for judicial notice.” ). Thus, the 
purpose of the plan mirrored those of the statute, for it 
was “ designed to break down old patterns of racial segre­
gation and hierarchy.”  443 U.S. at 208. Second, the plan 
did not “ unnecessarily trammel the interests of the white 
employees.”  Id. The Court concluded, therefore, that the 
plan fell “ within the area of discretion left by Title VII 
to the private sector voluntarily to adopt affirmative ac­
tion plans designed to eliminate conspicuous racial imbal­
ance in traditionally segregated job categories.”  443 U.S. 
at 209 (footnote omitted).

On its facts Weber dealt with whether and to what ex­
tent a private employer could adopt an affirmative action 
plan consistent with Title VII. Title VII applies as well 
to public employers, including states and their official agen­
cies. See 42 U.S.C. § 2000e(a), (b), (h) (codifying amend­
ments made by § 2(1), (2), (6) of the Equal Employment 
Opportunity Act of 1972, Pub. L. No. 92-261, 86 Stat. 103). 
The analysis from Weber has been applied to governmen­
tal employers, so that an affirmative action plan that satis­
fies the Weber criteria will insulate the employer from 
Title VII liability for particular employment decisions pur­
suant to it. Janowiak, 750 F.2d at 562-63; Bushey v. New 
York State Civil Service Commission, 733 F.2d 220, 227 
n.8 (2d Cir. 1984) (“ We reject Plaintiffs’ contention that 
Weber . . .  is inapplicable because the employer in Weber 
was a private entity whereas here it is a public entity.” ), 
cert, denied, 105 S. Ct. 803 (1985); Bratton v. City o f



60a

Detroit, 704 F.2d 878, 884 (6th Cir.), modified in other 
respects, 712 F.2d 222 (6th Cir. 1983), cert, denied, 104 
S. Ct. 703 (1984); La Riviere v. EEOC, 682 F.2d 1275, 
1279 (9th Cir. 1982) (collecting cases); see Deveraux v. 
Geary, 765 F.2d 268, 274 n.5 (1st Cir. 1985) (collecting ad­
ditional cases); see also United States v. City o f  Chicago, 
573 F.2d 416, 423 (7th Cir. 1978) (Title VII standards do 
not vary depending on whether defendant is a public or 
private employer).

A.
Based on the Weber Court’s reliance on the employer’s 

determination of a “ conspicuous racial imbalance”  in what 
it took judicial notice to be a “ traditionally segregated 
job category,”  this court has interpreted Weber as requir­
ing that governmental affirmative action plans “ be based 
upon findings of past discrimination by a competent body.” 
Janowiak, 750 F.2d at 561; c f  Lehman v. Yellow Freight 
System, Inc., 651 F.2d 520, 527 n.14 (7th Cir. 1981) (refus­
ing to decide whether objectives other than remedying 
past discrimination would support private affirmative ac­
tion plans). In Janowiak, we determined that on a sum­
mary judgment motion it was improper to conclude that 
as a matter of law an affirmative action plan survived a 
Title VII challenge when the plan was adopted solely on 
the grounds of a present statistical disparity between em­
ployees and the relevant labor pool and in spite of the 
fact that two review boards had found the luring prac­
tices reasonable. Janowiak, 750 F.2d at 562-63.

The first step in a Weber analysis under Janowiak is 
to determine whether there has been a finding of past 
discrimination “ by a competent body.”  In Janowiak we 
held that the South Bend Board of Public Safety was a 
body competent both to make findings of past discrimi­
nation and to implement an affirmative action plan “ be­
cause the Board is the ‘administrative body legally respon­
sible for the operation of the South Bend Fire Depart­
ment.’ ”  Janowiak, 750 F.2d at 561 (quoting Ind . Code



61a

A n n . § 36-8-3-2 (West 1983)).12 Here, of course, the 
Board of Trustees is the body legally responsible for 
operating the South Bend school district. Therefore it is 
competent both to make findings of past discrimination 
and to implement an affirmative action plan. But the 
Board is not the only body involved here—the Office for 
Civil Rights of HEW, the United States Department of 
Justice, and the United States District Courts for the Dis­
trict of Columbia and the Northern District of Indiana 
have been involved. The plaintiffs do not, as they could 
not, argue that courts of the Office of Civil Rights or 
the Department of Justice are not bodies competent to 
make the required findings.

Rather, they argue that any findings that were made 
by these bodies are not adequate. We disagree. None of 
the findings here were based solely on evidence of a pres­
ent “ statistical disparity between the percentage of minor­
ities employed and the percentage of minorities within the 
community.”  Janowiak, 750 F.2d at 562. Nor, of course,

12 Obviously this rationale would not apply to a private employer 
for whom there is no administrative body legally responsible for 
its operation. Presumably the employer is itself competent to make 
a finding of past discrimination, for instance, by determining that 
the job category is “ traditionally segregated.”

In holding that the South Bend Board of Public Safety was com­
petent to make findings of past discrimination, we were following 
the Brennan plurality in Bakke rather than Justice Powell’s Bakke 
opinion. One of the issues in Bakke was whether the Board of 
Regents of the University of California was competent to make 
findings of past discrimination. The Board was the “ administrative 
body legally responsible for the operation” of the University of 
California at Davis Medical School. Justice Powell determined that 
the Board was not competent to make the findings. Bakke, 438 
U .S. at 309-10 (Powell, J. opinion). The Brennan plurality deter­
mined that the Board was competent. Bakke, 438 U .S. at 366 n.42 
(Brennan, W hite, Marshall and Blackmun, JJ. opinion). The School 
Board here is analogous to the Board of Trustees in Bakke. There­
fore, under the approach of the Brennan plurality followed in 
Janowiak, it is a body competent to make findings of past dis­
crimination.



62a

did the district court here approve the no minority layoff 
provision as a matter of law on summary judgment.

The no minority layoff provision was adopted by the 
Board and the teachers as a way to further Resolution 
1020 in the face of possible layoffs necessitated by enroll­
ment decline and budget constraints. Resolution 1020 was 
adopted by the Board after a series of meetings at which 
it considered the problem of the vestiges of past discrim­
ination in the school system. It is true that the Board 
received statistics concerning the percentages of minor­
ity teachers and pupils in the school system. The statistics 
were not, however, merely for the current year, but cov­
ered a number of years. Further, the Board heard nonsta- 
tistical evidence. There was testimony that there was not 
a shortage of black applicants for teaching positions. Def. 
Ex. K-2. There was also testimony that there were “ at 
least five people who have met the qualifications to be­
come a teacher and have applied for positions and have 
not been hired, all blacks.”  Def. Ex. K-2, at 2. Further, 
there was testimony indicating that vacancies were first 
posted so that substitute teachers could apply for them 
before the vacancies were advertised outside the school 
system, and that principals often requested that substi­
tutes be appointed to vacancies. Def. Ex. K-3. Obvious­
ly, this hiring practice would tend to perpetuate the ef­
fects of any past discrimination in hiring substitute 
teachers. We believe that this evidentiary basis meets 
every test of legal sufficiency and is a broad foundation 
on which the School Board was authorized and in fact re­
quired to adopt Resolution 1020. See Janovriak, 750 F.2d 
at 564.

The difference between the evidence in this case and 
in Janovriak is highlighted by a fact crucial to our deci­
sion in Janovriak. In that case a Minority Recruitment 
Task Force and a Minority Recruitment Review Commit­
tee, both of which had been constituted by the South 
Bend Board of Public Saftey to study the hiring pro­
cedures for the city’s fire department, reviewed the 
department’s application and hiring procedures. Both the



63a

Task Force and the Review Committee found that the 
application and testing procedures were reasonable and 
not discriminatory and recommended thac they be re­
tained. 750 F.2d at 558-59. Here, however, no task force, 
review committee or other body ever studied the School 
Corporation’s past recruitment and hiring practices and 
determined that these were reasonable.

Indeed, the direct opposite is the case. The Office for 
Civil Rights of HEW studied those policies and other 
aspects of the operation of the school system, and con­
cluded that the School Corporation discriminated against 
minority teachers on the basis of race. This conclusion 
was, of course, based on more than a showing of present 
statistical disparity between the percentages of minority 
teachers and pupils. The OCR conducted two on-site in­
vestigations of the School Corporation and reviewed com­
plaints from individuals and organizations.

This administrative finding of past discrimination in the 
recruiting and hiring of minority teachers was confirmed 
in Brown v. Weinberger, 417 F. Supp. 1215 (D.D.C. 1976). 
In Brown, the district court also found that the School 
Corporation had not brought itself into compliance with 
Title VI.

It was in response to the HEW and district court find­
ings, as well as in a response to the concerns of citizens, 
that the Board began its consideration of minority hiring 
practices that lead to the adoption of Resolution 1020. 
Further, two years later the Attorney General certified 
that he had investigated complaints of race discrimination 
and school segregation and believed that the complaints 
were meritorious. This investigation was the basis of the 
Department of Justice suit that was settled by the con­
sent decree requiring the School Corporation to continue 
its affirmative action hiring policies embodied in Resolu­
tion 1020. United States v. South Bend Community School 
Carp., No. S80-35 (N.D. Ind. Feb. 8, 1980).

We believe that the findings of past discrimination here 
are clearly sufficient to support the School Corporation’s



64a

affirmative action policy, including both Resolution 1020 
and the no minority layoff clause, in the face of a Title 
V II challenge. See K rom nick v. School D istrict o f  
Philadelphia, 739 F.2d 894, 904-06 (3d Cir. 1984), cert, 
denied, 105 S. Ct. 782 (1985); Valentine v. Smith, 654 F.2d 
503, 507-10 (8th Cir.) (equal protection), cert, denied, 454 
U.S. 1124 (1981); see also part IV A, infra. Further, if 
we felt it were necessary (which it is not because the find­
ings of past discrimination satisfy the Janowiak re­
quirements) we would not hesitate to follow the Supreme 
Court’s lead and take judicial notice of the fact that teach­
ing is a “ traditionally segregated job category.” 13 A  study

13 With respect to teaching, we mean by this that black teachers 
traditionally taught in all black schools, primarily in states in which 
schools were legally segregated by race. But, as noted supra, the 
earliest available statistics in the record indicate that in 1963-64 
the minority teaching staff in the South Bend schools amounted 
to only 3.5%  of the total teaching staff. Def. Ex. H.

Judicial findings of racial discrimination by public school systems 
are legion. E .g., D ayton Board o f Education v. Brinkm an, 443 
U.S. 526 (1979); Columbus Board o f  Education v. Renick, 443 U.S. 
449 (1979); K eyes v. School D istrict No. 1, Denver, Colorado, 413 
U .S. 189 (1973); North Carolina Board o f Education v. Swann, 
402 U.S. 43 (1971); Swann v. Charlotte-M ecklenburg Board o f  
Education, 402 U .S. 1 (1971); Green v. County School Board, 391 
U .S. 430 (1968).

The appendices in Brown v. Weinberger, 417 F . Supp. 1215, 
1223-24 (D .D.C. 1976) list six school districts found ineligible by 
H E W  for funding under an Emergency School Aid Act (Pub. L. 
No. 92-318, Title V II , 86 Stat. 354 (1972), codified at 20 U .S.C . 
§ 1601 et seq., repealed by Pub. L . No. 95-561, § 601(bX2), 92 Stat. 
2268 (1978)), 26 school districts (including South Bend) found by 
H E W  to be in violation of Title V I , and 14 school districts under 
investigation for possible violations of Title V I. The appendices 
in Adam s v. Richardson, 356 F . Supp. 92, 100-02 (D .D.C.), a ffd  
as m odified, 480 F.2d 1159 (D.C. Cir. 1973) (en banc) (per curiam), 
a case similar to Brown, list ten states whose higher education 
programs were found by H E W  to violate Title V I , 85 school 
districts with one or more schools of substantially disproportionate 
racial composition, contrary to Title V I, and 42 school districts 
found by H E W  to be in presumptive violation of the Supreme 

(Footnote continued on following page)



67a

vided that if no agreement on a recommendation could 
be reached, the first thirty-five layoffs for the 1984-85 
school year would be governed by the language of the 
no .minority layoff provision. If further layoffs were 
necessary, they would be governed by the following lan­
guage:

The percentage of minority bargaining unit employees 
employed during a year in which staff reductions are 
implemented shall reflect the same percentage of 
minority bargaining unit employees employed during 
the preceding year. This percentage shall be deter­
mined by dividing the number of minority bargain­
ing unit employees by the total number of bargain­
ing unit employees in the Corporation. The computa­
tion shall be mutually determined by the Association 
and the Corporation on or before February 1 of each 
year.

Id. In January 1984 the committee recommended the 
adoption of the following substitute clause:

Affirmative action is defined as maintaining the same 
percentage of minority teachers in each minority 
classification throughout a period of reduction in force 
as were employed prior to such a reduction. For the 
purposes of this contract, minority shall be defined 
as members of the Black and Hispanic Races.

593 F. Supp. at 1227-28 (quoting “ Final Report of the 
Minority Language Committee”  (PI. Ex. 12) p. 17 § 5: 
App. 45).

In these circumstances the District Court was correct 
to reject the plaintiffs’ characterization of the provision 
as an ongoing racial-balance-maintenance measure. 593 F. 
Supp. at 1232. The provision was necessarily temporary 
because it was incorporated in a collective bargaining 
agreement o f limited duration. See Krom nick v. School 
District o f  Philadelphia, 739 F.2d 894, 911-12 (3d Cir. 
1984), cert, denied, 105 S. Ct. 782 (1985). Further, the 
changes proposed by the Minority Language Committee, 
indeed the constitution of the committee itself, is strong



68a

evidence that the provision was always meant to be 
temporary.

Nor did the provision require the discharge of white 
teachers and their replacement by new black hires, or 
create an absolute bar to the advancement of the white 
teachers. It did require that some white teachers be laid 
off who would not otherwise have been laid off. The forty- 
eight white teachers who would not have been laid off 
but for the provision made up 3.33% of the School Cor­
poration’s (before layoff) teaching staff of 1443 (and 3.77% 
of the after-layoff staff of 1274). Those who were laid off 
were at the head of the queue for rehire. And as the 
plaintiffs admit, all but twenty of the teachers originally 
laid off had been recalled by August 1984. 593 F. Supp. 
at 1231-32.15 The provision did not affect the hiring or 
promotion of whites, or of any teachers.

Furthermore, the district court found that testimony at 
trial established that the provision was designed to do 
nothing more than prevent the loss of the luring gains 
that had been achieved since the Board had resolved to 
increase the percentage of its black teachers. 593 F. Supp. 
at 1232. This finding is not clearly erroneous. As the dis­
trict court noted, in a period of “ declining staff and stu­
dent enrollment, layoff provisions are the only means of 
retaining any progress made in hiring procedures.”  593 
F. Supp. at 1232.

The plaintiffs argue that two alternative methods could 
have preserved this gain and show that the provision un­
necessarily trammel their rights. They claim that layoffs 
could have been effected pursuant to the rest of the 
seniority system, with black teachers recalled first, or that 
layoffs could have been made proportionally, as under the 
new contract and in the form approved in Wygant v. 
Jackson Board o f  Education, 746 F.2d 1152 (6th Cir.

15 A t oral argument plaintiffs’ counsel stated that all but five of 
the teachers had been recalled.



69a

1984), cert, granted, 105 S. Ct. 2015 (1985) (No. 84-1340).16 
Layoffs pursuant to the rest of the seniority system would 
have reduced the percentage of black teachers from 13.0% 
to 10.8%, barely higher than the percentage of black 
teachers on the staff at the time Resolution 1020 was 
adopted (10.4%). 593 F. Supp. at 1232. Layoffs under a 
proportionate system would have kept the percentage of 
black teachers at 13.0%. But Resolution 1020 also stated 
that it was a goal of the School Corporation to increase 
the percentage of minority employees every year, and 
Wygant does not hold that greater than proportionate 
layoffs are impermissible. In light of these factors we can­
not say the no minority layoff provision trammeled, much 
less unnecessarily trammeled, the interests of the white 
teachers merely because layoffs pursuant to it raised the 
percentages of black teachers on the staff from 13.0% to 
13.8%.

We conclude that the no minority layoff provision does 
not unnecessarily trammel the interests of the white 
teachers. And because the provision satisfies both prongs 
of the Weber test, it does not violate Title VII.

C.
The plaintiffs argue that Firefighters Local Union No. 

1781, v. Stotts, ____  U.S. ____ , 104 S. Ct. 2576 (1984),

16 The Supreme Court granted certiorari in Wygant to consider 
whether the Constitution allows racial preferences for teacher 
layoffs adopted by a public employer, in the absence of findings 
of past discrimination, that are based solely upon the disparity be­
tween respective percentages of minority faculty members and 
students. See 53 U .S .L .W . 3692 (subject matter summary of case 
recently docketed); Deveraux v. Geary, 765 F.2d 268, 275 n.6 (1st 
Cir. 1985). Here, as we discuss in parts III A  and IV  A , there 
are adequate findings of past discrimination, and neither those find­
ings nor the layoff provision was based solely on a disparity in 
the respective percentages of minority faculty members and 
students. Thus the Supreme Court’s grant of certiorari in Wygant 
should not affect our reliance on the Sixth Circuit’s decision or 
our result in this case.



70a

shows that the no minority layoff provision violates Title 
VII. In Stotts, the Supreme Court held that Title VII, 
and in particular sections 703(h) and 706(g), 42 U.S.C. 
§§ 2000e-2(h) & 2000e-5(g), barred a district court from 
modifying a consent decree over one party’s objection and 
ordering that layoffs be made so as to retain black hires 
who had been the beneficiaries of that prior remedial con­
sent decree. The prior decree did not itself limit or modify 
preexisting bona fide seniority rights. See Deveraux v. 
Geary, 765 F.2d 268, 272 (1st Cir. 1985); Vanguards o f  
Cleveland v. City o f  Cleveland, 753 F.2d 479, 486-87 (6th 
Cir. 1985); Krom nick v. School District o f Philadelphia, 
739 F.2d at 911; Grann v. City o f  Madison, 738 F.2d 786, 
795 n.5 (7th Cir.), cert, denied, 105 S. Ct. 296 (1984); see 
also 593 F. Supp. at 1230.

Stotts is distinguishable on several grounds. First, sec­
tion 703(h), on which the Court relied and which protects 
bona fide seniority systems that are not the result of an 
intent to discriminate, is not applicable here. The union 
and the School Corporation “ incorporated the [no minor­
ity layoff provision] . . .  in their collective bargaining con­
tract, thereby agreeing that certain prerequisites of 
seniority are to be qualified by that policy.”  Krom nick 
v. School District o f  Philadelphia, 739 F.2d at 911. Unlike 
Stotts, there is no override of a bona fide seniority plan. 
Deveraux v. Geary, 765 F.2d at 273; EEOC v. Local 688, 
753 F.2d 1172, 1186 (2d Cir. 1985); Wygant v. Jackson 
Board o f Education, 746 F.2d at 1157-59; Krom nick v. 
School District o f  Philadelphia, 739 F.2d at 911. Second, 
Stotts concerned a court-imposed affirmative action plan. 
Indeed, the no minority layoff plan there wTas imposed over 
the objections of the city. The Court explicitly refused 
to decide whether the city would have been unable to
voluntarily adopt such a provision. Stotts, ____  U.S. at
____ , 104 S. Ct. at 2590; Turner v. Orr, 759 F.2d 817,
824-25 (11th Cir. 1985); Vanguards o f  Cleveland v. City 
o f Cleveland, 753 F.2d 479, 486 (6th Cir. 1985); Wygant 
v. Jackson Board o f Education, 746 F.2d at 1158. Third, 
Stotts did not even purport to, much less actually, over-



71a

rule Weber. Deveraux v. Geary, 765 F.2d at 274; Van­
guards o f  Cleveland v. City o f Cleveland, 753 F.2d at 
487-88 & n.7; Wygant v. Jackson Board o f Education, 746 
F.2d at 1158. All the circuits that have considered the 
issue have concluded that Weber remains good law. 
Deveraux v. Geary, 765 F.2d at 274-75 (First Circuit deci­
sion collecting cases from Second, Third, Sixth, Seventh 
and Ninth Circuits); see also Turner v. Orr, 759 F.2d at 
825 (Eleventh Circuit). Finally, we note that in essence 
Stotts was a case about a district court’s power to amend 
a consent decree over the objections of one of the par­
ties. Stotts, ____  U.S. at ____ , 105 S. Ct. at 2594-95
(Stevens, J. concurring in the judgment); see Deveraux 
v. Geary, 765 F.2d at 272-73; Grann v. City o f  Madison, 
738 F.2d 795 n.5. Therefore, we agree with the district 
court that Stotts does not decide this case. 593 F. Supp. 
at 1230-31 & n.4. Indeed, the plaintiffs finally concede as 
much. PI. Br. at 17.17

We conclude that the no minority layoff provision of the 
1980-83 Agreement does not violate Title VII.

IV.
Because the no minority layoff provision does not violate 

Title VII, we must consider the plaintiffs’ claim that it 
violates the Equal Protection Clause. The Supreme Court 
has considered the merits of constitutional challenges to * VII

17 An argument could be made that if Stotts decides this case 
it compels affirmance rather than reversal. Stotts does not over­
rule Weber, and we have determined that the provision in ques­
tion here satisfies the Weber test and so does not violate Title 
V II. The provision was incorporated in the collective bargaining 
agreement and became effectively part of the seniority plan of the 
School Corporation’s teachers. Because it is permissible under Title
V II it is presumably protected by section 703(h). If the district 
court here had ordered the white teachers reinstated it would have 
done so over the School Corporation’s objections, and been in a 
position analogous to that of the district court in Stotts, whose 
action the Supreme Court held to be prohibited by Section 706(g).



72a

affirmative action plans in Regents o f  the University o f  
California v. Bakke, 438 U.S. 265 (1978), and Fullilove 
v. Klutznick, 448 U.S. 448 (1980). In neither case did any 
opinion command the assent of a majority of the Court. 
Thus the Court’s opinions do not provide the kind of 
guidance in the constitutional area that its decision in 
Weber does in analyzing Title VII challenges. Indeed, this 
court has recently stated:

After reviewing the eleven separate opinions filed in 
these two plurality decisions, this court agrees with 
the Sixth Circuit that “ the only clear consensus to 
be garnered from these various statements is that 
in any affirmative action program (1) some govern­
mental interest must be served, and (2) the program 
must somehow be directed toward the achievement 
of that objective.”

Janowiak, 750 F.2d at 563 (quoting Bratton v. City o f  
Detroit, 704 F.2d 878, 885 (6th Cir.), modified in other 
respects, 712 F.2d 222 (6th Cir. 1983), cert, denied, 104 S. 
Ct. 703 (1984)); see Valentine v. Smith, 654 F.2d 503, 509 
nn .ll & 12 (8th Cir.) (detailing the various positions of 
the Justices on necessary finding of past discrimination 
and appropriate standard of review), cert, denied, 454 U.S. 
1124 (1981); United States v. City o f  Miami, 614 F.2d 
1322, 1337 (5th Cir. 1980) (“ In over one hundred and fifty 
pages of United States Reports [that make up the Bakke 
opinions], the Justices have told us mainly that they have 
agreed to disagree.” ), rehearing en banc, 664 F.2d 435 
(5th Cir. 1981). But see infra at 32-33 & n.19.

A.
We first examine whether the no minority layoff clause 

serves a governmental interest. There is some uncertainty 
as to whether the governmental interest in remedying the 
effects of past societal discrimination is a compelling in­
terest. See Valentine v. Smith, 654 F.2d at 508 n.5 (iden­
tifying positions of Justices in Fullilove and Bakke opin­
ions). There is not, however, any doubt that this interest



73a

is substantial and important enough to support affirmative 
action plans. Fullilove, 448 U.S. at 453 (Burger, C.J. opin­
ion, joined by Powell and White, JJ.); id. at 519-20 (Mar­
shall, J. concurring in the judgment, joined by Brennan 
and Blackmun, JJ.); Bakke, 438 U.S. at 307 (Powell, J. 
opinion); id. at 362 (Brennan, Marshall, Blackmun and 
White, JJ. opinion); Janowiak, 750 F.2d at 563. In order 
to show that the affirmative action plan serves the sub­
stantial and important interest in remedying the effects 
of discrimination, there must be a finding of past discrim­
ination. Janowiak, 750 F.2d at 563-64; Valentine v. Smith, 
654 F.2d at 508. Once again, the issue before us is 
whether the findings of past discrimination are sufficient.

In Janowiak, we held that the “ failure to put forward 
any evidence other than evidence of statistical disparity 
and [defendants’] own admissions that the hiring practices 
appeared reasonably and non-discriminatory,”  750 F.2d at 
564, was insufficient to constitute a finding of discrimi­
nation to support summary judgment for defendants as 
a matter of law on a constitutional challenge to their af­
firmative action plan. But the evidence here was not a 
mere present statistical disparity coupled with a finding 
that the hiring procedures were reasonable and non-dis- 
criminatory. See supra part III A. And, as previously 
noted, the district court found for defendants not on sum­
mary judgment but after an evidentiary hearing and a 
trial. We believe the findings were fully adequate.

Our conclusion that the findings here are sufficient to 
enable the no minority layoff provision to withstand an 
Equal Protection challenge is supported by Krom nick v. 
School District o f  Philadelphia, 739 F.2d 894 (3d Cir. 
1984), cert, denied, 105 S. Ct. 782 (1985), and Valentine 
v. Smith, 654 F.2d 503 (8th Cir.), cert, denied, 454 U.S. 
1124 (1981).

Valentine is on all fours with this case. The plaintiff, 
Bonnie Valentine, alleged that the Arkansas State Univer­
sity had, in violation of the Equal Protection Clause of 
the Fourteenth Amendment, refused to hire her because



74a

she was white.18 The Eighth Circuit acknowledged that 
Valentine had been rejected because of her race, but af­
firmed a judgment for the university because ASU hired 
the black applicant pursuant to its affirmative action plan. 
Valentine, 654 F.2d at 507-11. The court required ASU 
to predicate its affirmative action plan on a finding of past 
discrimination. 654 F.2d at 508. (We relied on Valentine 
for this requirement in Janowiak, 750 F.2d at 564.) The 
Office of Civil Rights of HEW had conducted a compliance 
review of ASU under Title VI in 1968. In January 1969 
HEW informed the governor of Arkansas that the state’s 
universities, including ASU, were not in compliance with 
Title VI. Voluntary compliance was not achieved, and in 
February 1973 the District Court for the District of Co­
lumbia ordered HEW to commence enforcement pro­
ceedings against ASU so as to bring the university into 
compliance with Title VI. Adams v. Richardson, 356 F. 
Supp. 92 (D.D.C.), a jfd  as modified, 480 F.2d 1159 (D.C. 
Cir. 1973) (en banc) (per curiam). ASU finally submitted 
a plan late in 1975 in response to the findings and the 
action taken by the OCR. 654 F.2d at 505-06, 508-09. The 
Eighth Circuit held that these findings were adequate:

There is no consensus on what findings of past dis­
crimination justify remedial affirmative action. Never­
theless, the issue of whether the findings of past dis­
crimination made by the District of Columbia District 
Court and HEW  were adequate to justify a race­
conscious remedy is not even close. Findings of 
previous statutory violations of title VI by a district

18 Valentine, a white, had taught at A S U  from 1967 until 1974, 
when she resigned for personal reasons. Her replacement, the only 
black on the business faculty, resigned in 1976 and Valentine ap­
plied for her former position. She was rated the most qualified 
candidate by the faculty search committee and the dean of the 
college of business administration. The affirmative action officer 
at A S U  removed the names of all white candidates from the list, 
including Valentine’s, and one of the two black applicants recom­
mended by the affirmative action officer was hired by A SU . Valen­
tine, 654 F.2d at 506-07.



75a

court and OCR justify the use of some type of race­
conscious remedy by a state to serve its constitu­
tionally permissible objective of remedying past dis­
crimination.

Valentine, 654 F.2d at 509 (footnote omitted).
Kromnick v. School Distinct o f Philadelphia arose from 

a Title VI (and hence constitutional-standard-invoking) 
challenge to a policy that sought to maintain a faculty 
ratio at the relevant schools of between 75% and 125% 
of the system-wide proportion of black and white teachers. 
From 1978 to 1982 the Office for Civil Rights of HEW 
required the school district to maintain this policy in or­
der to be eligible for federal funds under an Emergency 
School Aid Act (Pub. L. No. 89-10, Title VI, 79 Stat. 55 
(1965), Pub. L. No. 95-561, Title VI, 92 Stat. 2252 (1978), 
codified at 20 U.S.C. § 3191-3207, repealed by Pub. L. 
No. 97-35, § 587(a), 95 Stat. 480 (1981) effective Oct. 1, 
1982). In 1982 the OCR for the Department of Education, 
which had assumed compliance responsibility, found the 
district in compliance with its regulations and no longer 
required the proportionality policy. The school district con­
tinued the policy voluntarily. 739 F.2d at 897-900.

The district court held that there was inadequate evi­
dence that the 75%-125% policy continued to serve a 
remedial purpose. The Third Circuit reversed:

The district court apparently believed that once the 
School District was relieved by the OCR in 1982 of 
the obligation to maintain the 75%-125% policy, its 
action in continuing that policy ceased to be remedial. 
The district court ignored the 15 year history of state 
proceedings against the School District, which are still 
pending in state court, directed to effecting integra­
tion of the Philadelphia public school system. The 
long history of Philadelphia public schools as “ racially 
identifiable”  as either “ white schools”  or “ black 
schools”  cannot be gainsaid. As early as 1969 the 
School District was operating under a consent decree



77a

v. M etropolitan Dade County, 723 F.2d 846, 851-52 (11th 
Cir.), cert, denied, 105 S. Ct. 220 (1984); Bratton v. City 
o f Detroit, 704 F.2d 878, 885-87 (6th Cir.), modified in 
other respects, 122 F.2d 222 (6th Cir. 1983), cert, denied, 
104 S. Ct. 703 (1984); Valentine v. Smith, 654 F.2d at 510;
see also Paradise v. Prescott, ____ F .2 d _____ (slip op. at
5784-86 (11th Cir. 1985); Wygant v. Jackson Board o f  
Education, 746 F.2d 1152, 1157 (6th Cir. 1984), cert. 
granted, 105 S. Ct. 2015 (1985); United States v. City o f  
Alexandria, 614 F.2d 1358, 1366 (5th Cir. 1980).

We agree with the recent statement of the Eleventh 
Circuit that “ the differences between the various ap­
proaches are more of phraseology than of substance.”
Paradise v. Prescott, ____  F.2d ____ , ____  (slip op. at
5786) (11th Cir. 1985).19 In any event, we need not choose

19 The Eighth Circuit, for example, held in Valentine v. Smith 
that the plan must be “ substantially related” to the objective of 
remedying past discrimination. 654 F.2d at 510. The court then 
defined “ substantially related:”

A  race-conscious affirmative action program is substantially 
related to remedying past discrimination if (1) its implemen­
tation results or is designed to result in the hiring of a suffi­
cient number of minority applicants so that the racial balance 
of the employer’s work force approximates roughly, but does 
not unreasonably exceed, the balance that would have been 
achieved absent the past discrimination; (2) the plan endures 
only so long as is reasonably necessary to achieve its legitimate 
goals; (3) the plan does not result in hiring unqualified appli­
cants; and (4) the plan does not completely bar whites from 
all vacancies or otherwise unnecessarily or invidiously tram­
mel their interests.

Id. Valentine has been cited approvingly by a number of circuits 
in this context. Palm er v. D istrict Board o f  Trustees, 748 F.2d  
595, 600 n.14 (11th Cir. 1984); W ygant v. Jackson Board o f  Educa­
tion, 746 F .2d 1152, 1157 (6th Cir. 1984), cert, granted, 105 S. Ct. 
2015 (1985); M organ v. O ’Bryant, 671 F.2d 23, 28 (1st Cir.), cert, 
denied, 459 U .S. 827 & 881 (1982). Indeed, in M organ  the First 
Circuit stated that the First, Fifth, Sixth and Eighth Circuits were 
“ substantially in accord” on the proper test to be applied. Morgan 
v. O 'Bryant, 671 F.2d at 28.

(Footnote continued on following page)



79a

of Resolution 1020, and so would survive scrutiny under 
any of these standards.

First, the provision did not stigmatize any of the white 
teachers who were laid off. The layoff was not related 
to merit but was determined by the provision and other 
aspects of seniority. Thus the teachers who were laid off 
were not stamped as inferior. Bakke, 438 U.S. at 371 
(Brennan, White, Marshall and Blackmun, JJ. opinion); 
Fullilove, 448 U.S. at 484 (Burger, C.J. opinion); Wygant 
v. Jackson Board o f  Education, 546 F. Supp. 1195, 1202 
(E.D. Mich. 1982), affd, 746 F.2d 1152 (6th Cir. 1984), cert, 
granted, 105 S. Ct. 2015 (1985). Indeed, the teachers laid 
off are no more stigmatized than any employees laid off 
for lack of seniority under any other contractual seniority 
system.20

Second, the provision does not require the retention of 
unqualified teachers. Bratton v. City o f  Detroit, 704 F.2d 
at 891; Valentine v. Smith, 654 F.2d at 511; United States 
v. City o f  Miami, 614 F.2d 1322, 1340 (5th Cir. 1980); 
Wygant v. Jackson Board o f Education, 546 F. Supp. at 
1202.

Third, the provision did not require the layoff of all 
white teachers. The forty-eight teachers who would not 
have been laid off but for the provision amounted to 3.77% 
of the faculty of 1274. Thus, the provision did not in­
vidiously trammel the interests of the white teachers or 
act as an absolute bar to their employment. Fullilove, 448

20 A s a general matter, though we need not rely on it here, the 
self-esteem of whites is not endangered by attempts to remedy 
past acts unfairly militating in their favor. The purpose of such 
programs is to aid blacks, not to exclude whites. The socially domi­
nant white majority is not being subject to what amounts to con­
stitutionally invidious stigma. Bratton v. C ity o f  Detroit, 704 F.2d 
878, 891 (6th Cir.), m odified in other respects, 712 F.2d 222 (6th 
Cir. 1983), cert, denied, 104 S. Ct. 703 (1984); see T. Nagel Equal 
Treatment and Com pensatory Discrim ination, 2 PH IL. & PUB.
A F F . ------  (1973), reprinted in  EQUALITY A N D  PREFERENTIAL
Treatment 3 (Cohen, Nagel & Scanlon, eds. 1977).



80a

U.S. at 484; Valentine v. Smith, 654 F.2d at 511; United 
States v. City o f  Miami, 614 F.2d at 1340; Wygant v. 
Jackson Board o f Education, 546 F. Supp. at 1202; see 
Weber, 443 U.S. at 208-09. We agree with the district 
court in Wygant that it is difficult to conceive how (ab­
sent a claimed breach of the duty of fair representation) 
a plan which was voluntarily adopted by the membership 
of the NEA-South Bend, a majority of whom were white, 
could invidiously trammel their interests. 546 F. Supp. at 
1202. In fact, this factor is one of the most decisive in 
validating the challenged plan.

Fourth, the provision was a temporary measure not 
designed to maintain a particular racial balance in the 
teaching staff. See supra part III B. Bratton v. City o f  
Detroit, 704 F.2d at 892; Valentine v. Smith, 654 F.2d 
at 511; United States v. City o f  Miami, 614 F.2d at 1340.

The teachers’ most serious claim is that a less burden­
some layoff procedure would have been possible, and so 
the provision is not reasonable. It is true that considered 
in the abstract it would have been possible to lay off by 
seniority excluding the provision and rehire black teachers 
first, or to engage in proportional layoffs (as is now the 
case under the revised layoff provision). But the provi­
sion was designed to further the goals of Resolution 1020 
and prevent the loss of the gains that had been made.

If layoffs had been effected without the provision, more 
than one-quarter (27.3%) of the school district’s black 
teachers would have been laid off, and almost one-third 
(32.9%) of the laid off teachers would have been black. 
Def. Ex. F-l. The reason for this is the usual and distress­
ing one that a disproportionate percentage o f black 
teachers had been only recently hired. Without the provi­
sion the percentage of black teachers would have dropped 
from 13.0% to 10.8%, almost back to what it had been when 
Resolution 1020 was adopted. At the same time the per­
centage of black students had risen from 22.1% to 25.8%. 
Def. Ex. E -l. The plaintiffs apparently concede that a



81a

straight percentage layoff provision would have been 
reasonable. See PI. Br. at 14. Layoffs pursuant to such 
a provision would have kept the percentage of black 
teachers at 13.0%, while the actual layoffs pursuant to 
the no minority layoff provision increased the percentage 
to 13.8%. We do not believe this minor difference makes 
the provision constitutionally unreasonable. This conclu­
sion rests on the fact that Resolution 1020 required that 
the School Corporation strive to exceed each year the 
minority employment figures of the previous year. C f 
Vanguards o f  Cleveland v. City o f Cleveland, 753 F.2d 
479, 485 (6th Cir. 1985) (rejecting as “ entirely too spec­
ulative”  the argument that a district court may not ap­
prove a consent decree adopting an affirmative action plan 
“ simply because other measures may, over the course of 
future years, achieve the same result”  (emphasis in 
original)); Kromnick v. School District o f Philadelphia, 739 
F.2d at 907 (“ No Supreme Court opinion has required a 
competent agency to undergo a convassing of alternatives 
as a constitutional prerequisite for a legitimate remedial 
action. The various opinions in Fullilove either express­
ly reject any requirement that the remedy chosen be the 
least restrictive, or adopt a far less rigorous standard.”  
(citations omitted)).

For all of these reasons we believe that the provision 
sufficiently furthered the School Corporation’s legitimate 
objective.21 Because it was also supported by adequate

21 The dissent’s reliance on Donovan v. Illinois Education A ss'n , 
667 F.2d 638 (7th Cir. 1982), and Oliver v. Kalam azoo Board o f  
Education, 706 F.2d 757 (6th Cir. 1983) is misplaced. Donovan  was 
a labor case in which we found a violation of section 401(e) of the 
Labor-Management Reporting and Disclosure Act of 1959, 29 
U .S.C . § 481(e). That “ case [did] not involve the legality of affir­
mative action. . . . Whatever may be the status of affirmative ac­
tion under civil rights statutes or the equal protection clause of 
the Fourteenth Amendment, those laws [were] not involved in 
[that] litigation.”  Donovan, 667 F.2d at 640. Anything from 
Donovan  on which the dissent would rely today is mere dicta.

(Footnote continued on following page)



82a

findings of discrimination, it was valid and survives con­
stitutional challenge.

V.
We now turn to the plaintiffs’ state law challenges to 

the no minority layoff provision. Having found no merit 
to the teachers’ federal claims, the district court declined 
to exercise pendent jurisdiction over the state claims.21 22 
The district court correctly noted that the decision 
whether to entertain the state law claims was discre­
tionary, citing United M ine Workers v. Gibbs, 383 U.S. 
715, 726 (1966), even after a trial on the merits in which 
the federal claim has not been proven, citing Delcambre 
v. Delcambre, 635 F.2d 407 (5th Cir. 1981) (per curiam). 
The court then reasoned as follows:

The crux of the state claims in this case is the im­
pact of Article XXIII, § 9 on the plaintiffs’ seniority 
rights under the Indiana Teacher Tenure Act. The 
question o f whether an affirmative action plan 
violates the Teacher Tenure Act has not been ad­
dressed by Indiana courts. Therefore, where, as here, 
the proper resolution of the state law question is

21 continued
Oliver involved a court-imposed layoff system that overrode a bona 
fide seniority system over the objections of one of the parties to 
the litigation. The court explicitly distinguished voluntary affir­
mative action plans. See Oliver, 706 F.2d at 763 n.6 & 765 n.9. 
In W ygant v. Jackson Board o f Education, which the dissent con­
cedes supports our position, the Sixth Circuit stated that Oliver 
simply anticipated Stotts. Wygant, 746 F.2d at 1157-59. Oliver, like 
Stotts, was distinguishable from W ygant, and is from this case as 
well.
22 The plaintiffs’ state-law claims below were, essentially, chal­
lenges to “ (1) the validity of the School Board Meeting of June 
1 and 2, 1982; (2) the Board’s decision with respect to seniority 
claims advanced by plaintiffs Jan Meiss, Jeanne Reabarger, 
Patricia Toth and Bonita Ujdak; and, (3) the validity of the ‘no 
minority layoff clause under the Teacher Tenure Act, I.C. § 20-6.1-4-1 
et seq.”  593 F.2d at 1232-33.



83a

unclear, a federal court may properly decline to ad­
dress the pendent issues. Any judgment by this court 
on this question would be purely advisory and of no 
precedential value to tlje state court.

593 F. Supp. at 1233 (citation omitted). On appeal plain­
tiffs merely restate their argument concerning the merits 
of their state claims. The correct standard of review is 
abuse of discretion, however, not error on the merits. We 
do not believe the district court abused its discretion in 
declining to exercise pendent jurisdiction over the state 
claims and dismissing them without prejudice. Gibbs, 383 
U.S. at 726; Delcambre v. Delcambre, 635 F.2d at 408.

An affirmative action plan is a serious measure. It must 
not be entered into without careful consideration of the 
need for and the burdens of the plan. But the plan in­
volved here, Article XXIII, Section 9 of the 1980-83 col­
lective bargaining agreement between the South Bend 
School Corporation and the NEA-South Bend, was care­
fully considered and reasonable under the circumstances. 
We have concluded that it did not violate either Title VII 
or the Equal Protection Clause of the Fourteenth Amend­
ment. We have also concluded that the district court did 
not abuse its discretion in dismissing the pendent state 
claims. For the reasons given above, the order of the dis­
trict court is A ffirmed.



84a

P o s n e r , Circuit Judge, dissenting. The public school 
system of South Bend, Indiana laid off 146 teachers. All 
were white; 48 had more seniority than blacks not laid 
off; two years later 20 of the 48 had not yet been recalled. 
The school system was carrying out a policy of not lay­
ing off any blacks. This was racially discriminatory state 
action and the question is whether it denied the 48 white 
teachers the equal protection of the laws, in violation of 
the Fourteenth Amendment.

Discrimination against whites, when connected in some 
way, however tenuously, to the history of discrimination 
by whites, is called “ affirmative action,” or, less euphemis­
tically, “ reverse discrimination.”  The debate over its 
legality is bounded by two positions. The first is that, like 
discrimination against members of minority groups, it is 
illegal per se; that since rights against discrimination are 
personal rather than group rights, as emphasized in Con­
necticut v. Teal, 457 U.S. 440, 453-54 (1982), membership 
in a racial group confers no entitlements; and that to hold 
that there is good racial discrimination and bad racial dis­
crimination and that only the bad is unlawful would make 
the antidiscrimination principle too contingent, too em­
pirical, too subject to judicial caprice, and at once too 
heedless of the legitimate rights of white people and too 
condescending toward black people. The second position 
is that reverse discrimination is permissible if reasonable 
in all the circumstances; that the law should be capable 
of differentiating among types of discrimination that differ 
in history, motivation, and consequence; and that inflexi­
ble commitment to the idea o f a color-blind Constitution 
would prevent black people from overcoming the effects 
of centuries of severe discrimination.

The choice between these positions is as contentious as 
any issue facing the nation. The Supreme Court has 
avoided it by steering a middle course, thus obliging us 
to do likewise. The Court has refused to condemn reverse 
discrimination outright, as discrimination against blacks 
and other minority groups is condemned. See, e.g., Fulli- 
love v. Klutznick, 448 U.S. 448, 482-83 (1980). But it has



85a

not treated it as permissively as purely “ economic”  dis­
crimination, such as exempting individuals from a personal 
property tax, is treated. Compare id. at 519 (Marshall, 
J., concurring), and Regents o f University o f  California 
v. Bakke, 438 U.S. 265, 358-62 (1978) (separate opinion of 
Brennan, J.), with Lehnhausen v. Lake Shore Auto Parts 
Co., 410 U.S. 356, 359-60 (1973). All of the Justices seem 
troubled by state action that draws racial lines, even if 
the benefited group is a traditional target, rather than 
a practitioner or a beneficiary, of discrimination. Yet all 
seem also to believe that reverse discrimination is less 
vicious and less harmful than discrimination against the 
traditionally discriminated against. For even the severest 
critics of reverse discrimination do not object to programs 
for recruiting or training blacks and other minority per­
sons, though such programs create a racial preference, and 
though a program for recruiting or training whites as such 
would be viewed with the gravest suspicion.

So in evaluating what South Bend has done to these 
white teachers we are not permitted by our judicial 
superiors either to condemn it out of hand as illegal dis­
crimination because its motivation was racial or to evalu­
ate it under a standard of reasonableness whereby any­
thing goes that is not clearly arbitrary. We have to look 
at it critically—to give it, in Justice Brennan’s words, 
“ strict and searching”  review, Regents o f  University o f  
California v. Bakke, supra, 438 U.S. at 361-62 (separate 
opinion)—and to adjudge it a denial of the equal protec­
tion of the laws if we cannot say that it is a well-tailored 
means to a clearly lawful end.

There are two possible ends to which the laying off of 
these teachers might conceivably be a proper means. The 
first is to remedy a violation of law. Suppose South Bend 
had formerly refused to hire black teachers, and to cor­
rect the violation it not only hired blacks but jumped them 
ahead of some white teachers on the seniority roster. This 
remedy could be defended on the ground that, but for 
the city’s past discrimination, the black teachers whom 
it had hired recently would have been hired earlier and



86a

would thus have accumulated as much seniority as white 
teachers—though the city would have to prove that the 
particular black teachers given superseniority had in fact, 
as my example assumes, been victims of the city’s past 
discrimination. See Firefighters Local Union No. 1781 v. 
Stotts, 104 S. Ct. 2576, 2588 (1984). Applied to this case, 
the defense would fail for two reasons. There is no evi­
dence that the particular black teachers who received 
superseniority had ever been discriminated against by the 
South Bend school system. And the city put the black 
teachers ahead of all the white teachers, thus giving them 
more seniority than it is plausible to imagine they would 
have accumulated had there never been discrimination 
against blacks—giving them, in fact, what they could have 
expected to get only in a world where whites were sys­
tematically discriminated against.

But forget all this; for the more fundamental point is that 
this is not a case that arises out of discrimination in hiring, 
whether against the particular black teachers who kept their 
jobs when more senior whites were laid off or against any 
other black candidates for teaching jobs in the South Bend 
public schools. South Bend used to discriminate against 
black teachers, it is true, but the discrimination lay in 
assigning them to schools with a predominantly black stu­
dent population, not in refusing to hire them. The scanty 
references in the record to “ recruitment”  are to the fact 
that until the 1970s the school board did not make aggres­
sive efforts to recruit blacks. It did not make aggressive 
efforts to recruit anyone. Affirmative action in hiring is 
sometimes permitted, but it is not mandatory, and its ab­
sence does not equate to refusing to hire qualified black 
applicants. Of such refusal I can find no indication in the 
record except an unelaborated, unsubstantiated, unsworn 
statement made by a black community activist at a public 
meeting of the school board. My brethren describe this 
statement as “ testimony” ; it is not testimony, and there 
is nothing else.

My brethren may think that any school system that 
segregated blacks and whites must have discriminated 
against blacks in hiring too; but actually there need be



87a

no correlation between the two forms of discrimination. 
Indeed, with complete segregation of whites and blacks, 
and identical student-teacher ratios in black and white 
schools, the ratio of black to white teachers would be 
equal to the ratio of black to white students—which as 
a matter of fact is the school board’s goal in this case. 
There might be no hiring discrimination even if, with 
segregated schools, the ratio of black to white teachers 
was lower than the ratio of black to white students, as 
apparently it has been throughout South Bend’s history. 
Maybe there were fewer qualified black teachers than 
white teachers; the school system therefore hired fewer 
black teachers relative to black students than white teachers 
relative to white students; so the student-teacher ratio 
was higher in the black than in the white schools. There 
would, if the schools were racially segregated, be discrimi­
nation, but not in hiring—a distinction fundamental to this 
case.

The rational remedy for the discrimination in which 
South Bend engaged—for school segregation as distinct 
from refusal to hire qualified black teachers—is not super- 
seniority for black teachers but equal assignments for 
black teachers. It is therefore not surprising that the con­
sent decree entered in 1980 contained no provision for 
superseniority. The defendants’ counsel conceded at oral 
argument that no competent body had ever made a find­
ing that the school board had turned down a qualified 
black applicant for a teaching job. I do not find this im­
portant concession remarked in the majority opinion.

Rather than discriminating against black teachers in hir­
ing, South Bend has discriminated in their favor since 
before the consent decree was signed. This is a more per­
tinent fact than what Indiana did to blacks when it was 
a territory, or before the Civil War, or even in 1949. 
Whatever its past failure in the area of aggressive re­
cruiting of blacks, by 1978 South Bend (we were told at 
argument) was hiring three times the fraction of black ap­
plicants for teaching jobs as of white applicants. True, the 
fraction of black teachers was not yet so high as the frac­



88a

tion of black students, but that does not prove discrimina­
tion, any more than the ratio of the percentage of black 
teachers (7 percent) to the percentage of black students 
(16 percent) in 1968 proved discrimination—in hiring. The 
proper comparison is not between the percentages of black 
teachers and black students, any more than the ratio be­
tween the percentage of black employees of soft-drink 
vendors and the percentage of soft-drink buyers who are 
black would be relevant in a suit charging the vendors 
with discrimination. The proper comparison is between the 
number o f black teachers hired by the school district and 
the number of qualified black teachers in the relevant 
labor market, see Hazelwood School District v. United 
States, 433 U.S. 299, 308 (1977)—a number that appears 
nowhere in this record but that in the absence of evidence 
is best approximated by the number of black teaching ap­
plicants. And in 1978 a black applicant had three times 
the chance of being hired as a white applicant. It appears, 
then, that two years before the consent decree went into 
effect South Bend was hiring a larger fraction of qualified 
blacks than qualified whites—and there is no evidence that 
it had ever refused to hire qualified blacks. The record 
will not sustain an argument that superseniority for black 
teachers was necessary to eliminate a legal violation or 
even keep the school board out of legal trouble, for there 
is no evidence of a relevant violation, actual or arguable, 
past or present. The lack of “ fit” between the discrimina­
tion found and the remedy prescribed is complete, and 
is not to be brushed aside by reference to the history of 
school segregation in Indiana; for, as I have tried to em­
phasize, segregating the schools and refusing to hire quali­
fied black teachers are logically, and for all we know fac­
tually, distinct forms of racial discrimination.

The other ground for giving black teachers supersenior­
ity might be to preserve “ role models”  for the black students 
in South Bend’s public schools, the theory being that 
scholastic underachievement is one of the legacies of dis­
crimination against blacks. Although the defendants have 
made little effort to establish this ground, I am willing



89a

to give them every benefit of the doubt and therefore con­
sider whether there is any possible basis for upholding 
the grant of superseniority by reference to the need for 
black role models.

At the time of the consent decree 11 percent of the 
teachers in the South Bend public schools were black, 
which was half the percentage of black students and was 
thought to be too low. To raise this percentage it was 
decided that half of the new hires should be black. By 
the time the layoffs began 13 percent of the teachers were 
black, and but for the grant of superseniority in 1982 that 
percentage would have fallen back to 11 percent because 
many of the black teachers had been hired recently and 
therefore had less seniority than white teachers.

It is plausible both that black teachers on average relate 
better to black students than white teachers do and that 
a significant presence of black teachers in a school is 
necessary to legitimize educational achievement in the 
minds of black students who come from educationally de­
prived homes. But it does not follow that every school 
with black students ought to strive for the identical 
percentage of black teachers at whatever cost to white 
teachers. If these white teachers, who so far as appears 
are neither practitioners nor beneficiaries of racial dis­
crimination and who I am sure are not the economically 
most secure members of the community either, are to be 
sacrificed as pawns in the struggle for racial justice 
because they are, as my brethren put it, members of “ the 
socially dominant white majority,”  there should be some 
competent evidence—educational, psychological, or sociologi­
cal—that their sacrifice is necessary. Evidence, for exam­
ple, that the difference between 11 percent of the teachers 
being black in a school 26 percent of whose students are 
black and 13 percent of the teachers being black is educa­
tionally relevant. There is no such evidence and there are 
no relevant findings of fact by the district judge, who 
based decision on his earlier decision in a similar case, 
the Janowiak case, which another panel of this court 
reversed in a decision that my brethren are at pains to 
distinguish.



90a

Even the point of comparing the percentage of teachers 
who are black with the percentage of students who are 
black, rather than the number of black teachers with the 
number of black students, is not apparent, and of course 
is not explained. Comparing the number of black teachers 
to the number of black students is relevant to the issue 
of role models for black students because it indicates how 
often a black student is likely to encounter a black 
teacher. But comparing the percentage of black teachers 
to the percentage of black students merely generates 
paradoxes. Suppose that as a result of a sharp decline 
in the number of teachers (because of layoffs), with no 
decline in the number of students, the ratio of black 
teachers to black students fell because some black 
teachers had been laid off, but the percentage of black 
teachers (that is, black teachers as a percentage of all 
teachers) rose because a higher fraction of white than of 
black teachers had been laid off. The number of black role 
models would have declined yet under the method of 
calculation used by the defendants the black students 
would be deemed better off. Actually they would be worse 
off both because the student-teacher ratio was higher, so 
that each student could expect less individual attention, 
and because there would be fewer black teachers for the 
students to look up to.

Or suppose that for some reason the number of white 
students in the school system increased and the number 
of black teachers, black students, and white teachers re­
mained the same. The percentage of black teachers would 
be the same but the percentage of black students would 
be lower (because the percentage of white students would 
be higher), so the ratio of the two percentages would be 
higher. For example, if the number of white students in 
the public schools of South Bend doubled, the percent­
age of black teachers would be roughly the same as the 
percentage of black students (the latter percentage hav­
ing declined to roughly half of what it had been), and by 
the defendants’ reasoning the black students would have 
their full quota of role models. To be concrete, suppose



91a

we start with 9 white teachers, one black teacher, 80 
white students, and 20 black students, so that the percent­
age of black teachers is 10 percent but the percentage 
of black students 20 percent, and then we add 100 white 
students. This would bring down the percentage of black 
students to 10 percent, so that under the defendants’ view 
the black students would now have enough black role 
models, for there would be the same percentage of black 
teachers as of black students. I am baffled by this logic. 
The black students would have neither more black 
teachers nor a higher percentage of black teachers; they 
would just have more white fellow students.

The record contains what I have said is the more rele­
vant comparison—the ratio of black teachers to black 
students, which ranged from 1 to 40 to 1 to 60 in the 
relevant period. But the record contains no interpretation 
of these ratios. I would like to know how many black 
teachers the South Bend schools would have to have in 
order to guarantee every black student at least two black 
teachers a year, and I should like to have the opinion of 
an educator or a sociologist as to whether black students 
would benefit significantly from having more role models 
than that. Eleven percent, which is what the percentage 
of black teachers in the South Bend public schools would 
have been if they had not been given extra seniority, is 
the approximate percentage of blacks in the nation’s 
population. It is not obvious to me why a higher percent­
age is necessary to provide black students with enough 
role models, even if the students happen to attend a 
school wrhere the percentage of blacks exceeds the national 
average. Again I emphasize the lack of any evidence on 
the point.

There is an insidious as well as arbitrary quality to “ role 
model” arguments that ought to make us insist that they 
be backed by evidence. Supposing that black male students 
need black male teachers as role models, should preference 
be given to black male over black female applicants for 
teaching jobs? Are whites entitled to white role models 
in schools where black or Asian or Hispanic teachers are



92a

overrepresented? Must the teaching staff of every public 
school in the United States reflect the racial, ethnic, 
sexual, and religious composition of the student popula­
tion of the school? Should a school system assign only 
black teachers to a school that has only black students? 
See Morgan v. Kerrigan, 509 F.2d 580, 596 (1st Cir. 1974). 
Would not the “ role model”  argument, carried to an ex­
treme, carry us back to where Indiana was before 1949, 
with a system of segregated schools, in which blacks at­
tended schools staffed (presumably) by black teachers? In 
order to answer these heavily rhetorical questions “ no”  
yet accept the defendants’ role-model argument in this 
case we need some evidence, and have none.

Even if the defendants had made a case for giving black 
teachers some extra seniority, a policy of laying off only 
white teachers is hard to describe as the equal protec­
tion of the laws, if as I assume the equal protection clause 
requires careful scrutiny of discrimination directed against 
any race, including the white race, though perhaps less 
careful than if the group discriminated against were 
smaller and less secure. The defendants’ policy amounts 
to saying that every black teacher shall have more senior­
ity than any white teacher; that so far as seniority is con­
cerned the blacks shall constitute a separate and superior 
caste. This seems to me a little like giving each black 
citizen of South Bend two votes in elections to the school 
board compared to one for whites—a discrimination that 
I cannot imagine any court upholding.

The defendants’ policy has the curious effect of increas­
ing the percentage of black teachers in the public schools 
of South Bend merely because economic conditions have 
worsened. Suppose the South Bend schools had had to 
lay off half their teachers; since no blacks could be laid 
off, the percentage of blacks would have zoomed from 13 
to 26 percent. The actual number o f layoffs was not so 
great, so that while the percentage of black teachers did 
increase, the increase was only from 13 to 14 percent. 
Still, laying off only whites seems a pretty weird mechan­
ism for creating more black role models. Even if the need



93a

for adequate role models required that the fraction of 
teachers who are black equal the fraction of students who 
are black, it does not follow that the proper means to that 
goal is never to lay off a black. An alternative would be 
to hire an even higher fraction of blacks. The adverse ef­
fect on the job security o f whites would be less.

I am not much comforted by the point that the provi­
sion for racial preference expires with the collective bar­
gaining agreement, and thus lasts only three years unless 
renewed. Now as a matter of fact it has been renewed, 
though only for a year. The union and the school system 
are thinking of moving toward a system of racially pro­
portional layoffs, so that the fraction of black teachers in 
the system would not rise because of layoffs. This would 
still mean giving blacks more seniority than whites on 
purely racial grounds, though not as much more as under 
the 1980 agreement. So the discrimination will persist, in­
definitely perhaps, though in a somewhat milder form than 
in its first four years. Collective bargaining agreements, 
be it noted, almost always lapse after three years, but 
no one is likely to argue that on that account unions and 
employers should be free to write discriminatory provi­
sions into them.

Nor am I persuaded that since the union voted to give 
the blacks superseniority, it must be okay, though my 
brethren regard this point as “ one of the most decisive 
in validating the challenged plan.”

1. Under the collective bargaining arrangements be­
tween South Bend and the teachers’ union, only union 
members can vote on whether to ratify a proposed col­
lective bargaining contract. A  teacher who is not a 
member of the union has no voice, and 28 percent of the 
teachers, including some of the plaintiffs, were not 
members of the union. If all the union members voted 
and fewer than 70 percent of them voted for the contract, 
then a minority of all the teachers voted for it. We do 
not know what the vote was.



94a

2. Even the union members do not vote on particular 
provisions, such as the provision that gives blacks super- 
seniority; they vote the whole contract up or down. A 
majority might have wanted the racial provision deleted 
yet have voted for the contract because they liked the 
remaining provisions or because they were fearful of 
working without a contract. This is conjecture, of course; 
but the burden of justifying racial discrimination is on 
those who do the discriminating, the defendants in this 
case, who presented no evidence of consent by the vic­
tims of the discrimination beyond the bare fact of ratifica­
tion of the collective bargaining contract.

3. The provision on minority rights that appears in the 
contract as ratified is worded differently from the provi­
sion that was in the draft of the contract submitted to 
the members of the union to vote on. The record does 
not contain the original wording.

4. We do not know the vote on the contract, as I said, 
but it was not unanimous, and it is no answer to a charge 
of racial discrimination that an electoral majority supports 
it. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 
51-52 (1974). Suppose a majority o f the black members 
of the union had voted to lay off blacks first, regardless 
of seniority. Would this mean that other black members 
could not complain o f racial discrimination? That black 
nonmembers could not? My brethren say that “ the teachers 
were not oblivious of these possibilities [i.e., that they 
might lose their jobs] when they voted for the provision.” 
I would word it differently. I would say, more accurate­
ly than my brethren, that the teachers who voted fo r  the 
collective bargaining contract were, presumably, not 
oblivious to the possibility that they might lose their jobs 
because of the provision in the contract granting super- 
seniority to blacks. We know that some of the plaintiffs 
did not vote for the contract, because they were not mem­
bers of the union and therefore were ineligible to vote. 
We do not know how many, if any, of the plaintiffs who 
were members of the union voted for the contract and 
as to those who did vote for it—if there were any plain­



95a

tiffs who did—we do not know whether they supported 
superseniority for blacks or opposed it but thought that 
on balance it was better to have a discriminatory contract 
than to have vno contract.

5. Could a teacher dissatisfied with the racial provision 
in the collective bargaining agreement have filed a griev­
ance, as my brethren suggest? No. The agreement defines 
a grievance as a claim “ that there has been a violation, 
misinterpretation or misapplication of any provision of this 
Agreement.”  The only remedy against a provision itself 
is the inadequate electoral remedy.

To take away a public employee’s job because of his 
racial identity is a serious step. It ought not be taken 
as lightly as it was here. This is not to say that it is the 
worst form of reverse discrimination that can be imagined. 
Hiring unqualified blacks in lieu of qualified whites is a 
worse affront to the merit principle and to social efficien­
cy. For seniority is not a meritocratic principle, so that 
laying off more senior ahead of less senior workers need 
not reduce the quality of the work force, and may increase 
it. But job  rights are precious commodities to workers 
(the Supreme Court, of course, views tenure, which these 
plaintiffs had, as “ property”  within the meaning of the 
due process clauses of the Fifth and Fourteenth Amend­
ments, see, e.g., Perry v. Sindermann, 408 U.S. 593, 599, 
601-02 (1972)), and the deprivation of those rights on 
nakedly racial grounds is a sufficient affront if not to the 
merit principle than to the ideals of racial equality and 
of judgment in accordance with individual worth to re­
quire something more than the slapdash effort at rational­
ization attempted by the defendants in this case; at least 
our judicial superiors seem to believe that.

It is not enough that South Bend once discriminated 
against black teachers on grounds unrelated to anything 
for which superseniority would be a rational corrective 
and that there are valid educational reasons for wanting 
to expose black students to black teachers. This would 
be enough to justify efforts to recruit more black teachers



96a

but it is not enough to justify taking away (whether tem­
porarily or permanently, depending on economic condi­
tions) white teachers’ jobs. Cf. Krom nick v. School Dis- 
tri• i, 739 F.2d 894, 902 (3d Cir. 1984). For that a more 
particularized showing of need is required than was 
attempted.

My brethren’s scrutiny of the defendants’ conduct is not 
“ strict and searching” ; it is not brief, but it is casual, and 
although supported by the Sixth Circuit’s decision in 
Wygant v. Jackson Bd. o f  Educ., 746 F.2d 1152 (6th Cir. 
1984), cert, granted, 105 S. Ct. 2015 (1985), is inconsis­
tent with the approach previously taken in this circuit, 
see Janowiak v. Corporate City o f  South Bend, 750 F.2d 
557, 563-64 (7th Cir. 1984), and Donovan v. Illinois Educa­
tion A s s ’n, 667 F.2d 638, 641-42 (7th Cir. 1982), with the 
spirit of the Supreme Court’s decisions in McDonald v. 
Santa Fe Trail Transp. Co., 427 U.S. 273 (1976), and Fire­
fighters Local Union No. 1781 v. Stotts, supra, 104 S. Ct. 
at 2584, 2588, with an earlier Sixth Circuit decision, Oliver 
v. Kalamazoo Board o f Education, 706 F.2d 757 (6th Cir. 
1983), and with the evident seriousness with which all of 
the Supreme Court Justices regard any form of racial dis­
crimination. Even Wygant provides only limited support 
for the decision today. Wygant did not involve a policy 
of not laying off any blacks—it just provided that no 
higher percentage of blacks than of whites could be laid 
off—and the process for ratification of the collective bar­
gaining agreement was not (so far as remarked in the 
opinions, anyway) flawed, as was the process here. No 
case before today has upheld so harsh a form of reverse 
discrimination. The plan of affirmative action upheld in 
United Steelworkers v. Weber, 443 U.S. 193 (1979), for ex­
ample, did not involve discharging any workers. But I 
shall not pretend that precedent dictates the outcome of 
this case. We must distill principles, and apply them. The 
principle I distill is that the kind of reverse discrimina­
tion involved in this case, which takes away job  rights 
and not just job opportunities, requires careful and critical 
review; and it has not received it.



97a

The harshness of the discrimination practiced in this 
case does not go completely unremarked by my brethren, 
but they do not draw the obvious conclusion, which is that 
the defendants ought to be required to show that -this 
discrimination was necessary to achieve some clearly 
lawful end. My brethren remark the painful character of 
what the defendants have done to the plaintiffs, yes, but 
the only solace they offer these plaintiffs, who have lost 
their jobs, is to note that the loss is, for most of them 
anyway, temporary; that many white teachers, though not 
necessarily the plaintiffs, voted to give the blacks extra 
seniority; and that in any event the plaintiffs, being white, 
have not been “ stigmatized”  by being laid off. Although 
man does not live by bread alone, neither does he live 
by self-esteem alone, and it is small comfort to a person 
who loses his job as a result of discrimination in favor 
of a black to be told that he has, after all, the consola­
tion of being white, that most of the people who have 
discriminated against him are themselves white, and that 
he may get his job back some day soon—though some of 
these plaintiffs have been waiting for three years. I am 
willing to accept that the equal protection clause means 
as a practical matter less for whites than for blacks but 
not that it means nothing at all, which if this decision 
stands will be the approximate situation in this circuit 
after today.

A true Copy:
Teste:

Clerk o f  the United States Court o f  
Appeals fo r  the Seventh Circuit



98a

JSm tzb JS iatbs d i s t r ic t  (Eavcrt
^oriljern district of <3ltthta:mr 

J§»outI] ^ tn b  .Btfriston

~\

ELM ER BRITTON et al

vs. >

SOUTH BEND COMMUNITY 
SCHOOL CORPORATION

S82-0283

Allen Sharp

JUDGM ENT IN A  CIVIL CASE
0  D ecision by Court. This action came to trial or hearing 

before the Court with the judge named above presiding. 
The issues have been tried or heard and a decision has 
been rendered.

IT IS ORDERED AND ADJUDGED
that plaintiffs take nothing by way of their complaint 
against the defendant, South Bend Community School 
Corporation and its Board of Trustees, and judgment is 
hereby entered in favor of the defendants and against the 
plaintiffs. It is futher ordered that plaintiffs’ state law 
claims be DISMISSED WITHOUT PREJUDICE.

RICHARD E. TIMMONS 
Clerk

By: Karen L. Brickner September 26, 1984
Deputy Clerk



99a

ELMER BRITTON, et al.,
Plaintiffs,

v.

SOUTH BEND COMMUNITY 
SCHOOL CORPORATION, et al.,

Defendants.

United States District Court,
N.D. Indiana,

South Bend Division 
Sept. 25, 1984

MEMORANDUM AND ORDER 
ALLEN SHARP, Chief Judge.
This action arises under the Fourteenth Amendment 

to the Constitution of the United States, 42 U.S.C. §§ 
1981, 1983 and Title VTI of the Civil Rights Act of 1964, 
as amended, 42 U.S.C. § 2000e, et seq., the Indiana 
Constitution and the Indiana Teacher Tenure Act, I.C. 20- 
6.1-4-1, et seq. Jurisdiction of this court is predicated upon 
a federal rights question under 28 U.S.C. § 1331, civil 
rights claims under 28 U.S.C. § 1343 and an employment 
discrimination (Title VII) claim under 42 U.S.C. § 2000e- 
5(f)(3). Jurisdiction over the state claims is grounded on a 
theory of pendent claim jurisdiction. United Mine Workers 
v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130,1139, 16 L.Ed.2d 
218 (1966). This case was tried before the court sitting 
without a jury on April 26-27, 1984. Post-trial briefs and 
proposed findings of fact and conclusions of law were sub­
mitted to the court by all parties on July 30, 1984. Final 
argument was held in South Bend, Indiana, on August 3, 
1984. This memorandum and order constitutes this court’s 
findings of fact and conclusions of law for purposes of F.R. 
Civ.P. 52(a).



I.

This dispute has its genesis in the voluntary adop­
tion by the South Bend Community School Corporation 
Board o f Trustees (Board) of an affirmative action plan 
(Resolution 1020) designed to increase the percentage 
of minorities in the teaching force. The plaintiffs are 
white teachers who were laid off by the South Bend 
Community School Corporation (School Corporation) on 
June 7, 1982. Resolution 1020 was adopted on December 
18, 1978 after several discussions at Board meetings focus­
ing on the recruiting and hiring practices of the School 
Corporation and the low percentage of minorities on the 
School Corporation’s teaching staff. Over the course of 
these discussions, statistics were presented to the Board 
exhibiting the disparity between the percentage of blacks 
in the student body.

One such presentation was made on October 7,1978 by 
Mr. William Roberts, acting Assistant of Superintendent 
of Personnel. He introduced statistics showing the num­
ber of black teachers and the number of black employees 
from 1970-1978. Statistics were also presented showing 
the number of black teachers in each school in 1970 and 
1978 and the number of blacks who had left the School 
Corporation since 1975. Mr. Willie Green, a black com­
munity activist, presented other statistics comparing the 
percentage of black students with the percentage of black 
staff members.

Resolution 1020, as finally adopted, provides that the 
School Corporation will strive to increase the percentage 
of minorities in its teaching force until that percentage 
equals the percentage of minorities in its student body. 
The Board specifically resolved to increase the percentage 
of minority pupils because it deemed it essential that the 
student population, both black and white, have a sufficient 
number of minority teachers to act as role models.

During the next three school years, (1978-1979, 1979-

1 0 0 a



1 0 1 a

80 and 1980-81), the School Corporation hired a greater 
percentage of black teachers then it had hired in any prior 
three-year period since records have been kept regarding 
the racial composition of the teaching force. From the 
1978-79 school year to the 1981-82 school year, 63 out of 
the 161 teachers hired were black. The percentage of black 
teachers in the teaching force increased from 10.4% in the 
1978-79 school year to 13% in the 1981-82 school year. The 
percentage of black pupils in the School Corporation in the 
1981-82 school year was 25.42%.

On February 8, 1980, Resolution 1020 was incor­
porated into the Consent Order entered by this court in 
United States o f America v. South Bend Community School 
Corporation, et al., Cause No. S 80-35.1 The United States 
Department of Justice had commenced that action earlier

1The United States filed a suit in February 1980 against the 
South Bend Community School Corporation, its Superintendent, 
its Board of Trustees, individually and as a group, alleging that 
defendants had engaged in various acts of discrimination with  
the intent and effect of segregating students and faculty on the 
basis of race in the South Bend, Indiana public school system. 
The suit was brought under Section 407 of Title IV  of the Civil 
Rights A ct of 1964 (42 U .S .C . § 2000c-6) and Section 207 of the 
Equal Educational Opportunities Act of 1974 (20 U .S .C . § 1706). 
The Government sought an injunction prohibiting defendants 
from discriminating on the basis of race or color in operating 
the schools within the territory of the School Corporation and 
requiring defendants to develop and implement a desegregation 
plan which should remove all vestiges of prior discrimination.

This court entered a consent order submitted by the parties 
and calling for defendants to develop and implement a desegrega­
tion plan for student assignments by the beginning of the 1981- 
82 school year on February 8, 1980. On February 26-27 , 1981, 
the Board of School Trustees passed a resolution adopting a 
desegregation plan for student assignments. On February 27, 
1981, the parties to the suit submitted to this court a proposed 
consent order incorporating the plan. The plan was subsequently 
revised, resubmitted to the district court on April 3, 1981, and 
was adopted by this court on April 17, 1981.

(Footnote continued on the following page)



1 0 2 a

on the same day. In its complaint, the Justice Department 
alleged that the School Corporation had engaged in acts of 
discrimination which were intended to segregate, and had 
the effect of segregating, students and faculty on the basis 
of race within the school system.

The Consent Order required the School Corporation 
to formulate a specific desegregation plan for student as­
signment by September 1, 1980. In addition, the Order 
required the School Corporation to continue to pursue its 
present affirmative action hiring policies. Further the 1

1 (Continued)

On February 26, 1981 Clay Quality Education II, Inc. (Clay) 
sought leave to intervene as a defendant. Clay was an 
Indiana not-for-profit corporation whose members were parents 
of children in the South Bend school system. On March 3, 
1981 the South Bend Branch of the National Association for the 
Advancement of Colored People (N A A C P ) also filed a motion to 
intervene. On April 1 7 ,1 9 8 1 , this court entered an order denying 
the N A A C P ’s and Clay’s motions to intervene. A  tim ely notice of 
appeal was filed by Clay with respect to the order refusing inter­
vention. See U .S . v. South Bend Community School Corporation, 
511 F.Supp. 1352 (N .D .Ind.1981).

On M ay 4, 1981, the N A A C P  filed a motion for reconsideration 
of the April 17 order refusing intervention. Clay filed a notice 
of appeal from that order on M ay 13, 1981. On M ay 27, 1981, 
this court stayed the implementation of the April 17 consent 
decree pending appeal. The School Corporation and the Justice 
Department each filed motions to vacate the stay order on M ay  
28 and 29, 1981, respectively. The N A A C P  motion for recon­
sideration, as w ell as the motions of the School Corporation and 
the Justice Department for vacation of the stay, were denied by  
this court on June 1, 1981. Thereafter, the School Corporation 
and the Justice Department filed motions in the Court of Appeals 
for the Seventh Circuit requesting that court to vacate the stay  
pending appeal. That court did so on August 5, 1981. The Court 
of Appeals subsequently affirmed this court’s denial of the mo­
tions to intervene on July 28, 1982. On motion of the defendants, 
the Court of Appeals affirmed the order in a published order. See 
United States v. South Bend Community School Corp., 692 F .2d  
623 (7th Cir.1982).



103a

Consent Order contained the School Corporation’s denial 
that it ever engaged in intentional discrimination. At no 
time were findings made that the School Corporation had 
engaged in intentional discrimination against any black 
applicant or teacher.

On May 16, 1980, the School Corporation entered into 
a three-year Collective Bargaining Agreement with the 
NEA-South Bend, the exclusive bargaining representative 
for the School Corporation’s teachers. The Agreement, 
in Article XXIII, § 9, provides that in the event of a 
reduction in force, "No minority bargaining unit employee 
shall be laid off.” The term "minority” referred only to 
black teachers. The provision had not appeared in any 
prior collective bargaining agreements between the School 
Corporation and the NEA-South Bend.

Prior to and during the negotiations, the administra­
tion and the Board anticipated that the Board might have 
to lay off teachers during the term of the 1980-83 Collective 
Bargaining Agreement. Thus, the School Corporation ne­
gotiating team proposed the "no minority lay-off ” clause to 
maintain the success it had achieved in recruiting minority 
teachers pursuant to Resolution 1020.

The negotiations which led to the 1980-83 Collective 
Bargaining Agreement lasted two weeks. After the ne­
gotiations, representatives from the NEA-South Bend 
met with the teachers to discuss the proposed Collective 
Bargaining Agreement. Article XXIII, § 9 was discussed 
at that meeting. Thereafter, the teachers ratified the 
proposed agreement by a substantial argin. No member 
of the Union ever filed a grievance alleging that he or she 
was not fairly represented by the NEA in the negotiations 
leading to the 1980-83 Collective Bargaining Agreement.

On April 26, 1982, the Board determined by resolution 
to eliminate 232 teaching positions, necessitating an actual



104a

reduction in force of 188 teachers.2 The Administration 
promptly notified the 188 teachers, including the plaintiffs, 
that their contracts were being considered for cancellation 
as is required by I.C. § 20-6.1-4-11. After receiving this 
notice, certain teachers pursuant to I.C. 20-6.1-1-1 et seq., 
filed written requests for a statement of why the Board was 
considering their contracts for cancellation. In compliance 
with such requests, the Board advised those persons that 
their contracts were being considered for cancellation be­
cause of an alleged justifiable decrease in the number of 
teaching positions resulting from declining pupil enroll­
ment and increased operating expense. Certain teachers 
also requested a hearing pursuant to I.C. § 20-6.1-4-11, on 
the proposed reduction in force and the cancellation of their 
contracts.

The Board scheduled the hearing for May 24,1982. On 
the day of the hearing, counsel for several of the teachers 
asked for, and received, a continuance to better prepare 
for the hearing. The Board rescheduled the hearing for 
June 1, 1982 at 4:00 o’clock P.M. Counsel for the teachers 
did not object to the appointed time of the hearing nor did 
they seek any other continuance throughout the course of 
the proceeding. The hearing, which was open to the public, 
began at 4:00 o’clock P.M. and lasted until 6:00 o’clock A.M. 
on June 2, 1982. The entire Board presided at the hearing 
with Mr. Hollis Hughes, president of the Board, acting as 
chief hearing officer.

The rescheduled hearing was conducted along

2 The number of teachers who were laid off was subsequently  
reduced to 146 pursuant to an agreement between the School 
Corporation and the N E A -South  Bend. The parties entered into 
the agreement as part of a consent order by Special Judge, John 
G. Baker, in an action entitled South Bend Com m unity School 
Corporation v. N ational Education Association South Bend, et 
al., which was pending in St. Joseph Circuit Court and docketed 
as Cause No. N -7015 .



105a

guidelines adopted from materials obtained from the 
Indiana State School Board Association and supplemented 
by the advice of counsel for the Board. During the course of 
the proceedings, several teachers individually challenged 
their position on the seniority list. Further, the Board 
refused to allow one witness to testify out of turn. This 
ruling was in accord with an agreement entered into pre­
viously among the parties that no deviation in the proceed­
ings would occur absent agreement among the parties. The 
Board also asked one of the witnesses for the teachers 
to step down after the witness had ignored several ad­
monitions from the teachers’ counsel and from the hearing 
officers to stop testifying about irrelevant matters.

Based on the testimony and evidence presented at the 
hearing, the Board on June 7, 1982, entered Findings of 
Fact and Conclusions of the Board. The Board found that 
the proposed layoffs constituted a justifiable decrease in the 
number of teaching positions and that the teachers chosen 
for layoff were properly selected pursuant to the terms of 
the Collective Bargaining Agreement entered into with the 
NEA-South Bend. The Board also found that the teachers 
who individually challenged their position on the seniority 
list were not entitled to a change in seniority. Pursuant 
to these findings, the Board on June 7, 1982 cancelled the 
contracts of the teachers who attended the hearing and also 
the teachers who had not attended the hearing but had 
received notice of cancellation.

The Collective Bargaining Agreement went into effect 
on August 15, 1980, and terminated on August 15, 1983, 
and was superseded by a 1982-84 Collective Bargaining 
Agreement with an identical "no-minority layoff” provi­
sion. However, the School Corporation formed a committee 
to study the matter of minorities and reductions in force. 
Such committee recommended in January 1984 the adop­
tion of the following substitute clause which reads:

Affirmative retention is defined as maintaining



106a

the same percentage of minority teachers in each 
minority classification throughout a period of 
reduction in force as were employed prior to such 
a reduction. For the purposes of this contract, 
minority shall be defined as members of the Black 
and Hispanic Races. (P. 17, Sec. 5, "Final Report 
of the Minority Language Committee”)

The plaintiffs allege that they were laid off in viola­
tion of the equal protection and due process clauses of the 
Fourteenth Amendment of the Constitution of the United 
States, the Civil Rights Act of 1861, 42 U.S.C. § 1981, the 
Civil Rights Act o f 1871, 42 U.S.C. § 1983, Title VH of the 
Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, 
et seq., the Indiana Constitution, and the Indiana Teacher 
Tenure Act, I.C. § 20-6.1-4-1, et seq. The plaintiffs further 
allege the Board’s determination to lay them off was ar­
bitrary and capricious.

Defendants contend that Article XXIII, § 9 was 
a necessary part of the School Corporation’s voluntary 
affirmative action program and did not unreasonably favor 
blacks over whites. With respect to the state claims, defen­
dants argue that the Board fully complied with the Indiana 
Teacher Tenure Act, thus satisfying the due process clause 
of the Fourteenth Amendment.

The case of Britton, Kochanowski et al. v. South Bend 
Community School Corporation, No. § 82-283, was com­
menced by the filing of a complaint in this court on June 
11, 1982. Its companion case, Andrews et al. v. South 
Bend Community School Corporation et al., No. S 82-485, 
began as a state court action filed on October 5, 1982 in 
the St. Joseph Circuit Court, St. Joseph County, Indiana. 
It was brought by forty named plaintiffs, all teachers or 
former teachers of the School Corporation, against the 
South Bend Community School Corporation and its seven- 
member Board of Trustees. Defendants removed the case to 
this court by the filing of a petition for removal on October 
22, 1982. These cases were consolidated for all purposes,



107a

including discovery, preliminary motions, pretrial proce­
dures and trial on the merits by order of this court on 
November 2, 1982.

Plaintiffs filed for a preliminary injunction on 
November 29, 1982. After a hearing on December 2, 1982, 
such motion was denied by order of this court on December 
15,1982. A motion for partial summary judgment was filed 
on December 2, 1982 against plaintiffs, H. Keller and L. 
Edler. On March 10, 1983, that motion was granted and 
those parties were dismissed from the action. The court 
now turns to the discussion of the merits of the case.

n.
A.

Federal Claims

The central issue in this suit is the legality of Article 
X X m , § 9, the provision of a collectively bargained a- 
greement between the NEA-South Bend and the School 
Corporation, which provides for "no minority layoff” in 
the event of a reduction in force. Although the Supreme 
Court of the United States has consistently held that states 
may implement voluntary race-conscious plans to eradicate 
the effects of post unconstitutional discrimination, see e.g. 
Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 
L.Ed.2d 902 (1980); Regents o f the University o f California 
v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 
(1978); United Jewish Organizations v. Carey, 430 U.S. 
144, 97 S.Ct. 996, 51 L.Ed.2d 229 (1977), the plaintiffs 
argue that Article XXIII, § 9 is an impermissible racial 
classification in that it neither pursues a compelling state 
interest nor is it a narrowly drawn means to such an 
end. They attack it on both federal constitutional and 
statutory grounds. Specifically, plaintiffs urge this court to 
adopt the traditional strict scrutiny test in its evaluation 
of Article XXIII, § 9 under the equal protection clause of 
the Constitution.



108a

Additionally, plaintiffs maintain that the case of
Firefighters Local Union No. 1784 v. Stotts, ___U.S____ ,
104 S.Ct. 2576, 81 L.Ed.2d 483 (1984) is controlling in this 
litigation. They iead Stotts as requiring that where an 
affirmative action plan abrogates vested seniority rights, 
it must pursue a compelling state interest, identified by 
direct findings of discrimination. The plan must also 
pursue that compelling state interest by the most narrowly 
tailored means.

Defendants argue that the test to be applied in this 
equal protection challenge is that espoused by the plurality 
in Regents o f California v. Bakke, supra, and adopted by 
the Court of Appeals of the Sixth Circuit in Detroit Police 
Officers Association v. Young, 608 F.2d 671 (6th Cir. 1979), 
cert, denied, 452 U.S. 938, 101 S.Ct. 3079, 69 L.Ed.2d 951 
(1981), and Bratton v. City o f Detroit, 704 F.2d 878 (6th 
Cir.1983) and by this court in Janounak v. Corporate City 
o f South Bend, 576 F.Supp 1461 (N.D.Ind.1983).

[1,2] Before beginning the constitutional analysis, 
this court reiterates that while an affirmative action plan 
like the one in issue might pass Title VII scrutiny where 
adopted by a private employer, a public employer’s Title 
VII compliance is circumscribed by the Equal Protection 
Clause. Hence:

[T]he Title VII challenge. . .  is necessarily sub­
sumed into [sic] that made here under the 
Fourteenth Amendment; what is valid under the 
latter will certainly pass muster under Title VTI.
Janounak, 576 F.Supp. at 1466-67 quoting Bratton 
v. City o f Detroit, 704 F.2d at 88.

Such reasoning is also applicable to challenges made 
under other federal statutory laws, specifically 42 U.S.C. § 
1981 and 42 U.S.C. § 1983. It is clear that affirmative ac­
tion plans which do not violate the equal protection clause 
do not violate those federal statutes. See Valentine v. 
Smith, 654 F.2d 503, 512 (8th Cir.1981); Detroit Police



109a

Officers Association v. Young, 608 F.2d at 692; Janovnak 
v. Corporate City o f South Bend, 576 F.Supp. at 1466 n. 4; 
Wygant v. Jackson Board o f Education, 546 F.Supp. 1195, 
1203 (E.D.Mich.1982). Thus, this court, will address only 
the equal protection issue.

[3] All parties to this litigation agree that the stan­
dard to be applied in constitutional analysis under the 
Fourteenth Amendment is strict scrutiny. Bakke, 438 U.S. 
at 361, 362, 98 S.Ct. at 2784, 2785. The point in contention 
is the test to be applied with respect to this standard. The 
Sixth Circuit has fashioned an interpretation of the test 
consistent with that set forth by the plurality in Bakke. 
That court cautions that in cases of reverse discrimination, 
"strict scrutiny” takes on a different nuance:

[A] case involving a claim of discrimination 
against members of the white majority is not a 
simple mirror image of a case involving claims of 
discrimination against minorities. One analysis 
is required when those for whose benefit the 
Constitution was amended or a statute enacted 
claim discrimination. A different analysis must 
be made when the claimants are not members 
of a class historically subjected to discrimina­
tion. When claims are brought by members of 
a group formerly subjected to discrimination the 
case moves with the grain of the Constitution and 
national policy. A suit which seeks to prevent 
public action designed to alleviate the effects of 
past discrimination moves against the grain .. . .
Young, 608 F.2d at 697.
The first prong of the test espoused by the Bakke 

plurality is that an articulated purpose or plan serve an 
important governmental objective. Bakke, 438 U.S. at 361, 
98 S.Ct. at 2784. The second prong of the test requires that 
the affirmative action program be reasonably related to the 
achievement of its remedial objective. Bakke, 438 U.S. at 
373-74, 98 S.Ct. at 2790-91.

The Sixth Circuit in Detroit Police Officers Association



1 1 0 a

v. Young, supra, added a gloss to the first prong of the 
Bakke plurality test. In Young, white police officers 
claimed that an affirmative plan adopted by the Detroit 
Police Department affecting promotions violated both Title 
VTI and the equal protection clause. The plan provided that 
50 percent of the police officers promoted to the rank of ser­
geant must be black. The district court held that the equal 
protection clause prohibited the adoption of an affirmative 
action plan absent judicial findings of prior intentional dis­
crimination against the blacks who benefited from its im­
plementation. Since the City of Detroit produced no such 
evidence, the plan was declared unconstitutional.

The Court of Appeals reversed. Finding error in the 
requirement that there be an antecedent judicial deter­
mination, the court noted that a policy to that effect would 
preclude virtually all voluntary affirmative action. The 
Sixth Circuit held that the city could constitutionally adopt 
an affirmative action plan upon a showing that blacks had 
been underrepresented on its police force. The court ar­
ticulated the inquiry to be made as " . . .  whether there is 
a sound basis for concluding that minority underrepresen­
tation is substantial and chronic, and that the handicap of 
past discrimination is impeding access [and promotion] of 
minorities.” 608 F.2d at 694.3

Plaintiffs advocate the test for strict scrutiny articu­
lated by Justice Powell in Bakke, i.e. it must be shown 
that the State’s "interest. . .  is compelling. . .  [and] the pro­

3 In cases dealing with school corporations, it is proper to com­
pare the percentage of minority faculty with the percentage of 
minorities in the student body rather than with the percentage of 
minorities in the relevant labor pool. Wygant v. Jackson Board 
of Education, 546 F.Supp. 1195 (E.D.Mich. 1982). In Wygant, 
the Court found it appropriate to use such a comparison because 
of the vital role teachers play as role-models for their students. 
This is particularly true in the rise of minority teachers since 
"societal discrimination has often deprived minority children of 
other role models.” Id. at 1201.



111a

grain’s racial classification is necessary to promote this in­
terest.” Bakke, 438 U.S. at 315-16, 98 S.Ct. at 2761-62. 
Ancillary to this is plaintiffs’ contention that the compell­
ing state interest be identified by direct findings of dis­
crimination. In support of such proposition, plaintiffs rely 
heavily on Stotts, supra.

In Stotts, a black fireman filed a class action alleg­
ing that the Memphis Fire Department was violating Title 
VII by making its hiring and promotion decisions on the 
basis of race. Thereafter, the parties entered into a con­
sent decree which was approved by the district court. 
Pursuant to the decree, the City of Memphis adopted a goal 
of increasing the percentage of black firemen until it ap­
proximated the percentage of blacks in the Memphis area’s 
labor force.

In May 1981 projected budget deficits required the 
layoff of some firemen. Pursuant to its agreement with the 
firefighters’ union, the City conducted the layoffs on the 
basis of seniority. At Stotts’ request, the district court en­
joined the city from making the layoffs solely on the basis 
of seniority.

In overturning the injunction, the Supreme Court 
noted that individual members of a plaintiff class must 
demonstrate that they have been actual victims of the 
discriminatory practice before being awarded competitive 
seniority. 104 S.Ct. 2588. The Court, in essence, held that 
Title VII does not permit the affirmative action goals of a 
consent decree benefiting employees who were not "actual 
victims” of discrimination to be given greater protection 
than a bona fide seniority system in the event of unan­
ticipated layoffs.

Having carefully reviewed the law presented by the 
parties, this court finds the test of reasonableness as set 
out by the Sixth Circuit in Young and, most recently, in 
Bratton to be controlling. First, the dispute over whether 
the first prong of the constitutional analysis should re­



1 1 2 a

quire a "compelling state interest” or a showing that some 
governmental interest is being served is an exercise in 
semantics in that the Supreme Court has already recog­
nized that remedying the present effects of past discrimina­
tion is compelling; Fullilove, 448 U.S. at 497, 100 S.Ct. at 
2784.

Second, the court does not read Stotts to require direct 
findings of discrimination in a voluntary affirmative ac­
tion plan. The "no minority layoff clause” in the collective 
bargaining agreement here was formed in a different fac­
tual and procedural context than that found in Stotts. It 
was approved by the rank and file of the NEA-South Bend 
(including these plaintiffs) not once but twice. Neither was 
it a necessary part of the Consent Decree approved pro 
forma by this court nor was it in any way mandated by 
this or any other court.

There can be little doubt that the Supreme Court in­
tended new teaching as to some court imposed affirmative 
action programs in Stotts. That teaching does not extend 
to this case. Therefore, the court cannot read into Stotts 
an interpretation of the law which the language of that 
opinion simply will not support.4

[4] Turning now to an examination o f the factual 
merits of the case, the court finds Article XX1H, § 9 to 
be constitutional and statutorily valid. The first inquiry

4 The Supreme Court in Stotts specifically reserved ruling on 
the issue presented in this case:

Finally, the Court of Appeals was of the view that the 
District Court ordered no more than that which the 
City unilaterally could have done by way of adopting 
an affirmative action program. W hether the City, a 
public employer, could have taken this course without 
violating the law is an issue we need not decide. The 
fact is that in this case the City took no such action and  
that the modification of the decree was imposed over its 
objections. 104 S .C t. at 2590.



113a

which must be made is whether there is some showing of 
previous underrepresentation of minorities in accord with 
Young and Bratton. At the time Resolution 1020 was 
adopted, the School Corporation was aware of the severe 
racial imbalance in its teaching force. On June 18, 1978, 
Mr. Willie Green, a community activist, pointed out to the 
Board that although blacks made up approximately 21.37% 
of the School Corporation, only 9% of the 1500 teachers in 
the School Corporation were black.

At the meeting of October 2, 1978, Mr. William 
Roberts, the Acting Superintendent of Personnel, 
presented statistics portraying the number of black 
teachers and the number of black employees from 1970- 
1978. Based upon the most current statistics (1978-79), out 
of 114 administrators, only 22 were members of a minority 
class and out of a total of 1478 teachers, only 152 were 
minority class members. These particular findings were 
made by the School Board, a body competent to make such 
findings. Bakke, 438 U.S. at 363-64, 98 S.Ct. at 2785- 
86. Thus, the court finds that the historical discrimination 
is enough to qualify as "past discrimination” within the 
meaning of Young and Bratton.5

The next inquiry is whether Article XXIII, § 9 is 
"substantially related” to the objective of remedying the ra­
cial imbalance among teachers. This entails a determina­
tion of whether the teachers were unduly stigmatized and 
whether the program applies the use of racial classification 
reasonably. Bratton, 704 F.2d at 890.

The white teachers have not been stigmatized by 
Article XXUI, § 9 within the meaning of Young and

5 A t the trial of this case, the School Corporation introduced 
statistics showing the ratio of the number of black students to the 
number of black teachers. In 1966, there was one black teacher 
for every 61 .2  black students; in 1982, one black teacher for every 
51.4 black students; in 1978, one black teacher for every 40 .6  
black students. See Defendants’ Ex. E - l .



114a

Bratton. The underlying purpose of the plan was to uplift 
blacks rather than to exclude whites and the layoffs which 
did occur were not at all related to merit. Rather, tes­
timony indicated that the layoffs were precipitated by 
declining enrollment and financial problems. (Inj. Tr. at 
p. 133). Therefore, the white teachers were not being 
subjected to what amounts to a constitutionally invidious 
stigma.

Neither have the white teachers’ interests been in­
vidiously or unnecessarily trammeled by the layoff provi­
sion. " . . .  [A] plan designed to remedy the effects of 
past discrimination is not invalid merely because some in­
dividuals not in any way culpable with respect to past dis­
criminatory acts must bear the brunt of racial preference. 
Fullilove, 448 U.S. at 484, 100 S.Ct. at 2777-78; Bratton, 
704 F.2d at 891. Article XXIII, § 9 did not result in the per­
manent discharge of all the white teachers originally laid 
off. As plaintiffs admit in their brief, all but twenty of the 
teachers originally laid off have been recalled. (Plaintiffs’ 
Brief at p. 21). Moreover, the teachers ratified collec­
tive bargaining agreements containing Article XXIII, § 
9 not only once but twice.6 Though certainly not indica­
tive of constitutionality or validity of the provision, such 
affirmation is some indicia of the reasonableness of the 
clause.

Testimony by members of the School Corporation has 
established that Article XXIII, § 9 was designed to do 
nothing more than prevent the loss on hiring gains which

6 The 1980-83 Collective Bargaining Agreem ent was su­
perceded by a 1983-84 Collective Bargaining Agreem ent with an 
identical "n o  minority layoff” provision. However, the 1983-84  
Agreem ent did contain a memorandum of understanding that a 
joint committee consisting of teachers and administrators would 
be formed to review the current language in the contract and 
to m ake recommendations to both parties at the bargaining  
table next year. See "F in al Report of the M inority Language 
Com m ittee,” Plaintiffs Ex. 12.



115a

had been achieved since the Board resolved to increase 
the percentage of its black teachers. (Trial Tr. at P. 
37). Crucial to this discussion is the fact that student 
enrollment in the School Corporation has declined every 
year since 1966. This has been accompanied by a similar 
decline in the number of teachers. In a period of declin­
ing staff and student enrollment, layoff provisions are 
the only means of retaining any progress made in hir­
ing procedures. Although the layoffs increased the per­
centage of black teachers from 13% to 13.8%, the percent­
age of black teachers employed by the School Corporation 
(13.8%) remained well below the percentage of black stu­
dents (25.8%) attending the Schools of the South Bend 
Community School Corporation.

Further, Article XXIII, § 9 was also reasonably related 
to remedying racial imbalances in that it was a temporary 
measure. The court cannot accept plaintiff’s characteriza­
tion of the clause as ongoing maintenance mechanism. It 
is "ongoing” only as long as the agreement is in effect; 
any change in the collective bargaining agreement would 
necessarily affect future layoffs and, therefore, the status 
quo.

Finally, plaintiffs allege that there were other methods 
to maintain the gains made under Resolution 1020. 
Specifically, they suggested: (1) following the straight 
seniority system for layoffs but institute a modified recall 
procedure to recall blacks first, or (2) limit the minority 
layoffs to the percentage of blacks on the staff. However, 
both of the plans are race-conscious also. Assuming any or 
both of the above plans are more reasonable than Article 
XXIII, § 9, this element is not determinative of the out­
come of the analysis but is simply one characteristic that 
must be taken into account. The fact remains that since 
passing Resolution 1020 and prior to the layoff, the School 
Corporation had increased its percentage of black teachers 
from 10.4% to 13%. If seniority alone had governed



116a

the layoffs, the percentage of black teachers would have 
decreased from 13% to 10.8%, a figure just slightly above 
the percentage of black teachers (10.4%) on the teaching 
staff just prior to the passage of Resolution 1020.

Thus, in light of all the considerations discussed above, 
the court concludes that Article XXIII, § 9 is substan­
tially related to proper objectives and is, therefore, con­
stitutional. For the same reasons Article XXIII § 9 does 
not violate the equal protection clause of the Indiana 
Constitution, as the protection afforded by that clause is 
coextensive with the protection afforded by its federal coun­
terpart. H uff v. White Motor Corp., 609 F.2d 286, 298 (7th 
Cir.1979); Indianapolis v. Clint's Wrecker Service, Inc., 440 
N.E.2d 737, 745 and.App.1982).

B.
State Claims

The court turns now to the state claims pending in 
this cause of action.7 Essentially, the plaintiffs’ challenge: 
(1) the validity of the School Board Meeting of June 1 
and 2, 1982; (2) the Board’s decision with respect to 
seniority claims advanced by plaintiffs Jan Meiss, Jeanne 
Reabarger, Patricia Toth and Bonita Ujdak; and, (3) the 
validity of the "no minority layoff” clause under the 
Teacher Tenure Act, I.C. § 20-6.1-4-1 et seq.

[5, 6] Having found no merit to the plaintiffs’ federal 
claims, this court declines to exercise pendent jurisdiction 
over the remaining state claims. The Supreme Court of 
the United States has held that federal courts may exercise 
pendent jurisdiction over state laws claims where the state 
and federal claims "derive from a common nucleus of opera­
tive fact.” United Mine Workers v. Gibbs, 383 U.S. 715,

7 The claim  based on the Indiana Constitution is not included 
here since it was addressed in the discussion of the federal con­
stitutional question.



117a

725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (2966). However, 
the power need not be exercised in every case in which it 
is found to exist. Thus, it has consistently been recognized 
that pendent jurisdiction is a doctrine of discretion, not 
of plaintiff’s right. Id. at 726, 86 S.Ct. at 1139. Though 
Gibbs appears to require dismissal of the state claims if the 
federal claim, though substantial enough to confer juris­
diction, was dismissed before trial, Id. at 726-27, 86 S.Ct. 
at 1139-40, courts may, and have, dismissed pendent state 
claims after a trial on the merits when a federal claim has 
not been proven. See Delcambre v. Delcambre, 635 F.2d 
407 (5th Cir.1981).

The crux of the state claims in this case is the impact 
of Article XIII, § 9 on the plaintiffs’ seniority rights under 
the Indiana Teacher Tenure Act. The question of whether 
an affirmative action plan violates the Teacher Tenure 
Act has not been addressed by Indiana courts. Therefore, 
where, as here, the proper resolution of the state law ques­
tion is unclear, a federal court may properly decline to ad­
dress the pendent issues. Sanders v. Duke University, 538 
F.Supp. 1143,1148 (M.D.N.C. 1982). Any judgment by this 
court on this question would be purely advisory and of no 
precedential value to the state courts.

Accordingly, it is the order of this court that plaintiffs 
take nothing by way of their complaint against the defen­
dants, South Bend Community School Corporation and its 
Board of Trustees, and judgment is hereby entered in favor 
of the defendants and against the plaintiffs. It is further 
ordered that plaintiffs’ state law claims be DISMISSED 
WITHOUT PREJUDICE. SO ORDERED.



118a

RESOLUTION 1020
Staff Recruitment and Employment
I. Philosophy

The Board of School Trustees of the South Bend 
Community School Corporation are committed to quality 
education for all its students. We believe that equal 
employment and equal promotional opportunities for all 
of its employees will enhance that commitment. Public 
schools reflect a cross section of society from all ethnic, 
socio-economic and other phases of the community. To 
provide in-depth education, the schools need to provide in 
the learning environment an opportunity for children to 
experience highly qualified representatives of all ethnic 
groups and cultures as part of their education since they 
need to learn to function in a pluralistic world. Providing 
the community with quality education should be the top 
priority in the schools; exposure to full learning is vital 
to the survival of our country and to the total welfare of 
its people. We believe, therefore, that the recruitment of 
personnel from all major groups is an essential aspect of 
the education of children.

n. Policy
a) It will be the policy of the school corporation to 

recruit, hire, provide training opportunities and 
promote staff without regard to race, religion, color, 
national origin, sex, age, or handicap.

b) It will be the policy of the school corpora­
tion to base employment decisions on the prin­
ciple of equal employment opportunity and on a 
non-discriminatory assessment of an individual’s 
qualifications for positions to be filled.

c) It wdll be the policy of the school corporation to 
recruit staff and make promotional decisions in ac­
cordance with the principles of equal employment 
opportunity and involve only valid requirements in 
the assessment of the individual’s qualifications for 
promotional opportunities.



119a

d) It will be the policy of the school corporation that 
personnel policies, practices and procedures involv­
ing such factors as compensation, benefits, trans­
fers, layoffs, school sponsored training and educa­
tional assistance programs are administered in ac­
cordance with the principle of equal employment op­
portunity.

e) It wdll be the policy of the Board of School Trustees 
to require from the Superintendent and his im­
mediate staff a written procedural program that, 
when implemented, will insure positive equal op­
portunity practices at all levels of employment in 
the corporation.

f) It will be the policy of the Board of School Trustees 
to make a continuous effort to place male, female 
and minority representation at all levels of employ­
ment as such candidates have requisite skills and 
can be reasonably expected by their availability 
within the labor or recruitment area.

g) It will be the policy of the Board of School Trustees 
to achieve quality education by recruiting and 
retaining staff that reflects the ethnic, racial and 
cultural diversity of the community.

h) It will be the policy of the Board of School Trustees 
to require that the Superintendent of Schools 
present a biannual review from the Department of 
Personnel of the personnel employment assignment 
and promotional process and changes to insure that 
equal opportunities for all applicants are being ob­
served.

III. Goals of Employment
Many factors influence the availability of personnel 

and need to be considered at the time of employment. 
Some of these factors are: License requirements, extracur­
ricular assignments, special talents, trade skills, interests, 
experience, training, pupil enrollments, and others.

1) It shall be the goal of the South Bend Community 
School Corporation to employ certificated and 
non-certificated personnel in the various job



1 2 0 a

classifications of the corporation which will ap­
proximately correspond to the racial and ethnic per­
centages of pupil enrollment. The present composi­
tion of the student body is 74.9 Anglo, 22.0 Black 
and 2.3 Latino.

2) It shall be the goal of the corporation to endeavor 
to exceed each year the previous year’s employment 
figures for minority personnel in the various job 
classifications of the corporation until the minimum 
desired percentages are reached.

3) The corporation will hold in high priority in all 
job classifications the recruitment and promotion of 
Black and Latino personnel until at least the stated 
goals are reached.

4) The corporation will hold in high priority the 
recruitment and promotion of women and members 
of minority groups into administrative positions.

(adopted 12/18/78)



1 2 1 a

<31 n 'QJtfe

States district (Enurt far tljt 

^ortljern ^tstrkt of ^nbtana 
^outlj ^ tn b  ^Btfrtston

UNITED STATES OF AMERICA,
Plaintiff,

SOUTH BEND COMMUNITY 
SCHOOL CORPORATION, et 
al.,

Defendants.

S80-0035

CONSENT ORDER
The United States has filed a complaint alleging that 

the South Bend Community School Corporation, its Board 
of School Trustees, and its Superintendent have engaged 
in acts of discrimination which were intended and had 
the effect of segregating students and faculty on the basis 
of race in the school system. The United States alleges 
further that the defendants’ discriminatory actions had a 
system-wide effect and that those actions continue to cause, 
in large part, the patterns of racial imbalance in student 
assignment which persist today.

The South Bend Community School Corporation and 
the other named defendants deny that they have engaged 
in intentional acts of racial discrimination. The defen­
dants assert that they have taken actions in the recent



1 2 2 a

past which have contributed to greater integration of the 
school system. The defendants state further that it is the 
policy of the South Bend Community School Corporation to 
remove racial imbalance from the public schools and to en­
sure equal educational opportunity to all students without 
regard to race, color, or national origin.

The parties agree that the litigation of this action 
would require a substantial expenditure of public funds 
which more appropriately can be used to achieve the educa­
tional goals of the school system. The United States agrees 
that the local school authorities can best develop a specific 
plan to achieve desegregation provided, however, that such 
a plan fully meets constitutional standards.

In light of these considerations, the parties, as indi­
cated by the signatures of their counsel below, desire to 
settle this action by entry of an appropriate decree. The 
defendants submit to the jurisdiction of the Court and ad­
mit that subject matter jurisdiction exists over this action 
under Title IV of the Civil Rights Act of 1964, 42 U.S.C. 
2000c, and under the Equal Educational Opportunities Act 
of 1974, 20 U.S.C. §1706. The defendants waive the notice 
provisions of those acts. All parties waive the entry of 
findings of fact and conclusions of law. All parties agree 
that this Consent Decree is final and binding as to the 
issues resolved herein.

WHEREFORE, the parties having freely given their 
consent, the terms of the order being within the scope of 
the complaint, and the terms of the order being not unlaw­
ful, unreasonable, or inequitable, it is hereby ORDERED, 
ADJUDGED, and DECREED that:

1. The defendants shall formulate a specific 
desegregation plan for student assignment by 
September 1, 1980. In developing such a plan, the defen­
dants shall continue to consult with the plaintiff. The 
parties shall attempt in good faith to resolve voluntarily 
any disagreements which may arise during the develop­



123a

ment of the plan.

2. The desegregation plan for student assignment 
shall provide that the percentage of black students in each 
school shall be within fifteen percentage points of the total 
percentage of black students in the School Corporation.

3. The integration of students of other national origins 
shall be implemented so that such students are not sub­
jected to extreme isolation and so that the possible con­
tinuation of appropriate special programs for such students 
is not precluded.

4. The desegregation plan for student assignment 
shall provide that, if  the transportation of students is re­
quired, such transportation shall be designed so that all 
racial groups share as equally as possible.

5. If the closing of any schools is necessary for pur­
poses of integration, such closings shall be designed so that 
all racial groups share as equally as possible.

6. By the beginning of the 1980-81 school year, the 
faculties of each school operated by the School Corporation 
shall be appropriately adjusted so that each approximately 
reflects the average racial composition, teaching ex­
perience, and teaching disciplines of the faculty of the 
school system as a whole. Educational and extracurricular 
programs shall be equal for each school serving similar 
grade levels and similar student needs.

7. The desegregation plan shall provide for staff train­
ing, curriculum evaluation and revision, facilities com­
parability, and substantially equal discipline practices.

8. The Board of School Trustees shall continue to 
pursue its present affirmative action hiring policies.

9. By the beginning of the 1981-82 school year, the 
defendants shall complete fully the implementation of the 
desegregation plan for student assignment.

10. By November 1st of 1980,1981,1982 and 1983, the



124a

defendants shall file with the Court and serve on counsel 
for the United States a report setting forth the following 
information:

a. the total faculty, by race, of the School Corporation;
b. the total faculty, by race, of each school facility;
c. the total school and central office administrative 

staff, by race, of the School Corporation;
d. the total administrative staff, by race, of each school 

facility;
e. the total student enrollment, by race, of the School 

Corporation;
f. the total student enrollment, by race, of each school 

facility; and
g. the number of students, by race, enrolled in each 

classroom in each class period during the third 
Friday in September preceding the filing of the 
report.

11. Each party shall bear its own costs.
12. The Court shall retain jurisdiction of this action 

for all purposes.
ORDERED this the 8 day of February, 1980.

/s/ A llen Sharp

United States District Judge

THE UNDERSIGNED CONSENT TO THE ENTRY OF 
THIS ORDER:

/s/ Franklin A. M orse n  /s/ David T. Ready

Franklin A. M orse II David T. Ready

Thornburg, M cGill, Deahl, United States Attorney 
Harmon, Carey & M urray 

First Bank Building Building 
South Bend, Indiana 46601

Attorneys for Defendants



125a

Drew S. Days m  
Assistant Attorney General

By: /s/ Robert J. Rein stein 
Robert J. Reinstein

/s/ Michael B. W ise 
M ichael B. W ise

/s/ Richard J. Epps, Jr. 
Richard J. Epps, Jr.

Attorneys
General Litigation Section 
Civil Rights Division 
Department of Justice 
Washington, D.C. 20530

Attorneys for Plaintiff



126a

Article XXIII
REDUCTION IN FORCE-RECALL

Section 1: In the event of a Board decision for a decrease 
in force within the bargaining unit, or recall after layoff, 
the following factors as listed below shall govern:

a. Certification

b. Seniority

Section 2: Seniority is defined as the teacher’s length 
of continuous service from his/her beginning date of 
last employment in the South Bend Community School 
Corporation. Approved leaves of absence shall be con­
sidered as continuous service. A teacher who has 
had his/her period of service in the School Corporation 
broken after having attained permanent status shall have 
seniority determined by totalling the actual years of ser­
vice in the South Bend Community School Corporation.

Section 3: A teacher whose current assignment is not avail­
able due to a reduction in force shall displace the least su­
perior teacher in his her areas of classification.
Section 4: Teachers who have been laid off will be recalled 
on the basis of reverse seniority using the test specified in 
Section 1.
Section 5: A teacher on layoff shall remain on the recall 
list for four (4) years, so long as he/she expresses his/her 
desire to do so to the Board each year by May 1 in writing, 
except as follows:

a. Until removed at the employee’s request.

b. Until the employee refused two (2) different recalls for 
employment.
A teacher accepting a recall must report to work 

within twenty-one (21) calendar days after receipt of a 
written notice of recall. The written notice of recall shall 
be given by the Board by registered or certified mail, ad­



127a

dressed to the employee at his/her last address appearing 
on the records of the Board. An employee who is employed 
in another school corporation at the time of recall shall be 
allowed to complete his/her contractual obligation before 
returning. In the event a teacher cannot return due to 
a contractual obligation the position will be filled by a 
certified teacher on a temporary contract.
Section 6: When two (2) or more teachers have the same 
length of service, the teacher having the greater amount 
of total teaching experience shall be considered senior. If 
two (2) or more teachers have the same total years of ex­
perience, then the teacher with the earliest birthdate shall 
be considered senior.

Section 7: One corporation-wide seniority list based on ser­
vice with the corporation shall be established. This list 
shall contain the names, areas of certification and years of 
service for all teachers, including teachers on official leaves 
of absence. The initial seniority list shall be posted in each 
faculty lounge and made available to each teacher who re­
quests a copy thereof. Teachers shall have a period of forty- 
five (45) calendar days to file exceptions to their placement 
on the seniority list with the Assistant Superintendent- 
Department of Personnel. No exception shall be enter­
tained which has not been filed within this time period. 
This list shall be updated and posted annually.
Section 8: For a period of three (3) years following any 
lay-off any teacher who is laid off shall have one of the 
following options available:
Option a) Using the teacher seniority list, the school cor­
poration shall offer regular teacher contracts to the fifteen 
(15) most senior teachers on said list to perform permanent 
substituting for the school corporation. Should one or more 
of the fifteen (15) most senior laid off teachers refuse this 
option the corporation shall continue down the seniority 
list until the fifteen (15) regular contracted permanent sub­
stitute positions are filled.



128a

Option b) Any laid off teacher not accepting option (a) or 
any laid off teacher not having option (a) available shall 
be offered a daily substitute position if available according 
to seniority at the per diem rate the teacher would have 
achieved had the teacher remained in the school corpora­
tion as a regular teacher for that school year. Teachers 
remain eligible for such preference only as long as they 
accept available positions; however, each teacher shall be 
granted fifteen (15) refusals per school year.
Section 9: No minority bargaining unit employee shall be 
laid off.
Section 10: The Board hereby agrees to indemnify the 
NEA-South Bend and hold it harmless against any and 
all claims, demands, suits or other forms o f liability that 
should arise out of or by reason of Section 9 of this article.
Section 11: Any teacher employed after the start of the 
school year and having worked less than 120 teacher work 
days shall not be subject to this Article.
Section 12: Those employees properly issued temporary 
contracts under state statute shall not be covered by the 
provisions o f this Article.