Federal Court Asked to Rule on Georgia Golf Bias Case

    No. 84-1340

In The

€uq.irrtm' (Cmtrl of %  Ifnitrh
October Te r m , 1985

Wendy W ygant, Susan Lam m , John Krenkel, Karen 
Sm ith , Susan Diebold, Deborah Brezezinski, Cheryl 
Zaski, and Mary Odell,

Petitioners,
v.

Jackson Board of Education, Jackson, Michigan, and 
Richard Surbrook, President; and Don Pension, 
Robert Moles, Melvin Harris, Cecelia F iery, Sadie 
Barham , and Robert F. Cole,

Respondents.

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

BRIEF FOR RESPONDENTS

Jerome A. Susskind 
Jerome A. Susskind, P.C. 
2530 Spring Arbor Road 
Jackson, Michigan 49203-3696 
(517) 787-5340 

Attorney for Respondents

W i l s o n  , E p e s  P r i n t i n g  C o , ,  In c . - 7 8 9 - 0 0 9 6  - W a s h i n g t o n , d . c . 2 0 0 0 1



QUESTIONS PRESENTED

1. May the responsible local school board— after com­
plaints, careful investigation, and full deliberation— adopt 
a faculty integration program as part o f an overall 
effort to provide an integrated system o f public school­
ing, particularly in view o f a history of chronic under­
representation o f minority schoolteachers and a plausible 
showing o f past discrimination on the part of the board 
with respect to staff as well as students?

2. Is the particular collective bargaining provision on 
teacher lay-offs— which was carefully tailored in negotia­
tions between the board and the teachers’ certified repre­
sentative so as to implement the board’s laudable inte­
gration effort during a difficult time o f declining enroll­
ment and to distribute the burden of lay-offs equally 
among minority and non-minority teachers in order to 
avoid stigmatizing any teacher as inferior or unqualified 
— barred by Section 1 o f the fourteenth amendment?

3. Was the district court correct in denying plaintiffs’ 
motion for summary judgment and in granting the Jack- 
son Board of Education’s motion for  summary judgment?

(i)





TABLE OF CONTENTS
Page

QUESTIONS PRESENTED .............................  i

STATEMENT OF THE CASE ......................................... 1
A. Prior Proceedings ....................................................  2

B. Undisputed Facts from District Court Brief........ 3

SUMMARY OF ARGUMENT ...................... ....................  15

ARGUMENT.... .......... ............................................... ........... 17

I. The Jackson Board of Education May, Consist­
ent with the Fourteenth Amendment, Adopt 
Article XII (the Race-Conscious Lay-Off Provi­
sion) as Part of a Plan to Remedy Prior Dis­
crimination and to Achieve the Educational Ben­
efits of School Integration for its Students........ 17
A. A local school board is a proper governmental

body to evaluate the effects of its past con­
duct and the need for an integrated system of 
schooling, and to adopt and implement effec­
tive measures, including race-conscious 
measures, to achieve these ends. The decision 
o f the Jackson Board of Education to inte­
grate its schools and faculties and to collec­
tively bargain for a reasonable limitation on 
minority teacher lay-offs while that goal is 
being pursued was proper............................ . 19

B. Without regard to its own prior discrimina­
tion, a local school board is a proper body to 
establish affirmative, race-conscious educa­
tional and institutional goals, and the Jack- 
son Board’s action was appropriate in this 
respect also ......................................................  25

(hi)



IV

II. The Lay-Off Provision Adopted through the Col­
lective Bargaining Process to Implement the 
Board’s Integration Program Is Reasonable and 
Properly Tailored. It Does not Violate the Four­
teenth Amendment because It Distributes Lay- 
Off Burdens Equitably without Singling Out 
Any Teacher for Stigmatic Treatment on Ac­
count of Race................................... ........................ 31

A. Unlike Stotts, in the case at bar, Petitioners 
and other third parties had repeated oppor­
tunities to have their interests represented.... 32

B. Because Article XII involved the voluntary
modification of a seniority system by the 
union that created the prior seniority sys­
tem, the legitimate expectations of third par­
ties have not been upset........ ............................  34

C. Article XII is a necessary means to achieve
the Board of Education’s compelling reme­
dial and educational interests......... .................  41

III. The District Court Was Correct in Denying Peti­
tioners’ Motion for Summary Judgment and Cor­
rect in Granting the Jackson Board of Educa­
tion’s Motion for Summary Judgment____ ___ _ 45
A. Petitioners’ summary judgment motion____ 45
B. Jackson Board of Education’s motion for

summary judgment  _____________ ______  46

CONCLUSION ______________ _____ ___ ____ _____ _____  49

TABLE OF CONTENTS— Continued
Page



V

TABLE OF AUTHORITIES
Cases: Page

Aeronautical Industrial District Lodge 727 v.
Campbell, 337 U.S. 521 (1949)....... .................. . 34-35

Albemarle Paper Company v. Moody, 422 U.S. 405
(1975 )...........    38-39

Arnold v. Ballard, 390 F. Supp. 723 (N.D. Ohio 
1975), aff’d, 12 FEP Cases 1613 (6th Cir.), vcv- 
cated and remanded on other grounds, 16 FEP
Cases 396 (6th Cir. 1976) ............................ .......... 28n

Berry v. School District of Benton Harbor, 467 F.
Supp. 721 (W.D. Mich. 1978)____________    29n

Berry v. School District of Benton Harbor, 442
F. Supp. 1280 (W.D. Mich. 1977)................. ......... 21n

Bratton v. Detroit, 704 F.2d 878, modified, 712 
F.2d 222 (6th Cir. 1983), cert, denied, 104 S. Ct.
703 (1984)....         30n

Bridgeport Guardians, Inc. v. Bridgeport Civil 
Service Commission, 482 F.2d 1333 (2d Cir.
1973), cert, denied, 421 U.S. 991 (1975) ............ 28n

Brown v. Board of Education, 347 U.S. 483 (1954).. 19, 25,
41

Brown v. Board of Education, 349 U.S. 294 (1955).. 15, 18,
19, 20, 21, 49

Columbus Board of Education v. Penick, 443 U.S.
449 (1979) ............................. ................ .................  20

Cooper v. General Motors, 651 F.2d 249 (5th Cir.
1981) .............        34

Davis v. Board of School Commissioners of Mobile,
402 U.S. 33 (1971) ______ _______ ______________ 42n

Dayton Board of Education v. Brinkman, 443 U.S.
526 (1979) ................      20n

Deboles v. Trans World Airlines Inc., 552 F.2d 
1005 (3d Cir.), cert, denied, 434 U.S. 837
(1977)_________      35n-36n

Detroit Police Officers Association v. Young, 608 
F.2d 671 (6th Cir. 1979), cert, denied, 452 U.S.
938 (1981) ________ ________ _________________ 30n, 48n

Emporium Capwell v. Community Organization,
420 U.S. 50 (1975) 37



VI

Estes v. Metropolitan Branches, Dallas NAACP,
444 U.S. 437 (1980)...................... ........................... 28n

Firefighters Local Union No. 1784- v. Stotts, 104
S.Ct. 2576 (1984) ............... ...........17n, 31, 32, 33-34, 37n

Ford Motor Company v. Huffman, 345 U.S. 330
(1953) .......................................................... .....36, 37, 43

Fort Bend Independent School District v. City of
Stafford, 651 F.2d 1133 (5th Cir. 1981)........... . 42n

Franks v. Bowman Transportation Company, 424
U.S. 747 (1976) ............................ ............37,38,39-40

Fullilove v. Klutznick, 448 U.S. 448 (1980).......23, 26, 31,
34, 35

Goslowski v. Penn Central Transportation Com­
pany, 545 F. Supp. 337 (W.D. Pa. 1982), aff’d
mem., 707 F.2d 1401 (3d Cir. 1983).....................  35n

Green v. County School Board of New Kent
County, 391 U.S. 430 (1968)____________ 15,18, 20, 21

Hunter v. Erickson, 393 U.S. 385 (1969).......... ....... 22
Johnson v. Airline Pilots in Service of Northwest 

Airlines, 650 F.2d 133 (8th Cir.), cert, denied,
454 U.S. 1063 (1981).... ........................................ 35n

Local 900 IUE v. NLRB, 727 F.2d 1184 (D.C. Cir.
1984) .................. ............................ ..........................  35n

McDaniel v. Barresi, 402 U.S. 39 (1971)................. 22
Milliken v. Bradley, 433 U.S. 267 (1977)___ __ _ 20
Minnick v. California Department of Corrections,

452 U.S. 105 (1981)............ .................................... 45
Mississippi University for Women v. Hogan, 458

U.S. 718 (1982) ............... .................................... .. 45
NAACP v. Allen, 493 F.2d 614 (5th Cir. 1974).... 28n
NAACP v. Lansing Board of Education, 559 F.2d 

1042 (6th Cir. 1977), cert, denied, 438 U.S. 907
(1978) ....................... ....................................... .......20n-21n

North Carolina State Board of Education v. Swann,
402 U.S. 43 (1971)___________________ 21, 22, 24, 25-26

Oliver v. Kalamazoo Board of Education, 706 F.2d
757 (6th Cir. 1983)............... ..................................  38n

Oliver v. Michigan State Board of Education, 508 
F.2d 178 (6th Cir. 1974), cert, denied, 421 U.S.
963 (1975)

TABLE OF AUTHORITIES— Continued
Page

21n



V ll

Pellicer v. Brotherhood of Railway & Steamship 
Clerks, 217 F.2d 205 (5th Cir. 1954), cert, de­
nied, 349 U.S. 912 (1955)............ ...........................  37n

Personnel Administrator of Massachusetts v.
Feeney, 442 U.S. 256 (1979) __________ ____ ___  44

Regents of the University of California v. Bakke,
438 U.S. 265 (1978) .............................................. .passim

Smith v. B & 0  Railroad Company, 485 F. Supp.
1026 (D. Md. 1980) ....... ........ ................................. 35n

Swann v. Charlotte-Mecklenburg Board of Educa­
tion, 402 U.S. 1 (1971) ...............  15. 18, 20, 21, 23, 25

United Jewish Organizations v. Carey, 430 U.S. 144
(1977)....  ......... ......................................................  44n

United States v. Miami, 614 F.2d 1322 (5th Cir.
1980), modified, 664 F.2d 435 (1981)...... ............  24

United Steelworkers of America v. Weber, 443 U.S.
193 (1979)---------------- --------------17n, 26, 31, 34, 38, 39n

Vaca v. Sipes, 386 U.S. 171 (1967)...........................  32, 34
Washington v. Davis, 426 U.S. 229 (1976)...........23, 32, 44
Washington v. Seattle School District No. 1, 458

U.S. 457 (1982) .......................... .......................... 28n, 29n
Williams v. New Orleans, 729 F.2d 1554 (5th Cir.

1984) ............ ................ .............................. .............. 29n
Wygant v. Jackson Board of Education, 746 F.2d

1152 (6th Cir. 1984) ................. ............. .......ln-2n, 3, 48n
Wygant v. Jackson Board of Education, 546 F.

Supp. 1195 (E.D. Mich. 1982).... ..In, 3, 24, 41, 47n, 48n
Statutes:

42 U.S.C. § 1981 
42 U.S.C. § 1983 
42 U.S.C. § 1985

TABLE OF AUTHORITIES— Continued
Page

Rules:
Fed. R. Civ. P. 12 (b) (6) ......................   2
Fed. R. Civ. P. 29 ......................................   2
Fed. R. Civ. P. 56____         2
Fed. R. Civ. P. 56 ( e )___          46n
Supreme Court Rule 34.1 (g) .................................... l

2
2
2



V l l l

TABLE OF AUTHORITIES— Continued 
Other Authorities: Page

Davidson, Davidson & Howard, The Riffing of 
Brown: De-Integrating Public School Faculties,
17 Harv. C.R.-C.L.L. Rev. 443 (1982) ............._...30n-31n

Dimond, Strict Construction and Judicial Review 
of Racial Discrimination Under the Equal Pro­
tection Clause, 80 Mich. L. Rev. 462 (1982) ...... 29n

Dimond & Sperling, Of Cultural Determinism and 
the Limits of Law, 83 Mich. L. Rev. 3301
(1985 )  .......................................................... 30n

Ely, The Constitutionality of Reverse Discrimina­
tion, 41 U. Chi. L. Rev. 723 (1974) _____ ____ _ 30n

J. Ely, Democracy and Distrust (1980)___ ___ ____ _ 30n
H.R. Rep. No. 92-238, 92d Cong., 1st Sess., re- 

printed in 2 Subcomm. on Labor of the Senate 
Comm, on Labor and Public Welfare, 92d Cong.,
2d Sess., Legislative History of the Equal Em­
ployment Opportunity Act of 1972 at 61 (Comm.
Print 1972) ______________ ___________________ 40n-41n

Sandalow, Judicial Protection of Minorities, 75
Mich. L. Rev. 1162 (1977) .................... ........ ........ 30n

Schnapper, Affirmative Action and the Legislative 
History of the Fourteenth Amendment, 71 Va.
L. R ev .------  (June, 1985, forthcoming)........... 29n-30n



In T he

(Limvt itf thr Ihxmh Btutis
October Term, 1985

No. 84-1340

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

Petitioners,

Jackson Board of Education, Jackson, Michigan, and 
Richard Surbrook, President; and Don Pension, 
Robert Moles, Melvin Harris, Cecelia F iery, Sadie 
Barham , and Robert F. Cole,

_________  Respondents.

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

BRIEF FOR RESPONDENTS

STATEMENT OF THE CASE

Petitioners’ statement of the case is incomplete and 
does not contain all that is material to the consideration 
of the questions presented, as is required by Supreme 
Court Rule 34.1(g). Petitioners ignore the procedural 
posture and undisputed record below when the trial court 
ruled on the cross-motions for summary judgment and 
when the Court of Appeals affirmed. Many of the “ facts” 
set forth in Petitioners’ brief are drawn from “ Petition­
ers’ Lodging”  in this Court and find no support in the 
record of this case.1 1

1 In the text of our statement of facts, we therefore set forth the 
prior proceedings and record made below on the cross-motions for 
summary judgment. Like the District Court, Wygant v. Jackson 
Board of Education, 546 F. Supp. 1195, 1197-99 (E.D. Mich. 1982) 
and appeals court, Wygant v. Jackson Board of Education, 746 F.2d



A. Prior Proceedings

Petitioners, who are laid-off Jackson, Michigan public 
schoolteachers, filed their complaint in the District Court 
in 1981, alleging violations of their civil rights under 
42 U.S.C. §;§ 1981, 1983, and 1985, and of the fourteenth 
amendment. No answer was filed, because the Jackson 
Board of Education moved to dismiss pursuant to Fed. R. 
Civ. P. 1 2 (b )(6 ) or, alternatively, for summary judg­
ment under Fed. R. Civ. P. 56. Petitioners also moved for 
summary judgment. There was no discovery and no dep­
ositions or admissions of fact under Fed. R. Civ. P. 29. 
No evidentiary hearing was held, and no facts were con­
tested by affidavit or other evidence.

However, during oral argument on the cross-motions, 
Petitioners explicitly conceded the facts as set forth in 
the Jackson Board’s summary judgment papers (Tr. of 
2 /23/82 hearing, at 5-6) ; while Petitioners argued that 
the court should draw certain inferences from these facts, 
they never asserted any other facts concerning the his­
tory or purposes of the lay-off provision which they are 
attacking. Indeed, when a single oral remark of school 
board counsel was momentarily questioned by Petitioners’ 
attorney at the hearing, he prefaced his inquiry with the 
comment that “ I thought we didn’t have a dispute on

2

1152 (6th Cir. 1984), we proceed on the understanding that in 
the Courts below, the Petitioners did not dispute the operative 
facts set out in our summary judgment papers, though we realize 
that each side has drawn different inferences from them. These 
undisputed facts demonstrate that a plausible showing that there 
had been prior discrimination against black students and teachers 
in the Jackson Public Schools provided the context for the Jackson 
Board’s ongoing desegregation effort, o f which the challenged lay­
off provision is an integral part. In footnotes, we add the underly­
ing facts of public record which belie Petitioners’ claims in this 
Court that there has never been any prior discrimination in the 
Jackson school district. We have asked the Clerk of each federal or 
state tribunal or agency that holds these records to transmit certified 
copies to the Clerk of this Court.



3
the facts”  (id. at 6 ).2 3 * * * * The facts contained in the Jack- 
son School Board’s summary judgment motion brief were 
thus undisputed, as District Judge Joiner stated in his 
opinion, Wygant v. Jackson Board of Education, 546 
F. Supp. 1195, 1197 (E.D. Mich. 1982).

The District Court dismissed Petitioners’ asserted fed­
eral claims. Based upon the undisputed facts, Judge 
Joiner ruled that the lay-off provisions of the collectively 
bargained contract were substantially related to the con­
stitutional objectives of remedying past discrimination, 
correcting substantial and chronic underrepresentation of 
minority staff, and providing for an integrated system 
of schooling. 546 F. Supp. at 1201-02. Petitioners ap­
pealed, but the Sixth Circuit Court of Appeals affirmed. 
Wygant v. Jackson Board of Education, 746 F.2d 1152 
(6th Cir. 1984). The Court of Appeals held that the 
“ school board (and bargaining representative of the 
teachers) have a legitimate interest in curing the past 
racial isolation of black teachers in the school system.” 
746 F.2d at 1157. Both the majority and concurring 
opinions also noted approvingly the procedural safe­
guards inherent in such a collectively bargained-for lay­
off provision. Id. at 1158-59, 1161. Certiorari was 
granted by this Court on April 15, 1985.

B. Undisputed Facts from District Court Brief8

“ In the school year 1950-51 the Jackson Public Schools 
hired 48 new teachers; in 1951-52, 58 new teachers; in

2 Similarly, school district counsel Susskind stated at the hearing 
that “ I don’t believe, in either of our briefs, we set forth any fact 
that would be of any substantial nature that would show any dis­
agreement. There is no issue to try before this Court.”  (Tr. 5-6.)

3 All o f the facts recited below were set forth in the brief support­
ing the Jackson Board’s motion for summary judgment in the dis­
trict court. Both the district court, 546 F. Supp. at 1197, and the
Court o f Appeals, 746 F.2d at 1157, proceeded on the understanding 
that these facts were not disputed, based on Petitioners’ concession
to this effect at the hearing on the summary judgment motions.
The text of this brief therefore quotes verbatim from the statement



4
1952-53, 83 new teachers and in 1953-54, 61 new teach­
ers were added to the staff. Carrie Hannan was among 
the 61 newly hired in 1953-54 and she became the first 
black teacher hired in Jackson. At that time the system 
had 9,966 students and 355 teachers. The pace of minor­
ity hiring was slow from 1953 to 1961. As of the latter 
date, ten members of a teaching staff of 515 were minor­
ity members for a minority ratio of 1.8 percent. The 
student enrollment had climbed to 12,611 by 1961.

“ In the school year 1968-69, black students made up 
15.2 percent of the total student population in the Jack- 
son Public Schools, black members of the faculty con­
stituted 3.9 percent of the total teaching staff.

“ Jackson integrated its two senior high schools in 1963, 
and in the spring of 1969, with the building of the North­
east Junior High School, the district integrated the four 
junior high schools. The city-wide proportion of minor­
ity to majority was then established in the four junior 
high schools, and since those junior high schools fed 
into the two senior high schools, racial balance was sub­
stantially achieved in the secondary schools.

“ The district then turned its efforts toward integra­
tion of the elementary schools. Various complaints had 
been filed with the Michigan Civil Rights Commission 
by the Jackson NAACP alleging segregation of elemen­
tary schools as well as discriminatory treatment of mi­
norities in staff hiring and placement.* [4] Efforts to in­

of facts in the Board’s district court brief supporting its summary 
judgment motion; the footnotes appended are from sources in public 
records which we have asked the appropriate court or agency clerks 
to furnish to this Court, see supra note 1. Copies of most of the 
materials cited in the footnotes may also be found in Respondents’ 
separate Lodging with this Court.

4 In April, 1969, the Jackson branch of the NAACP filed a de­
tailed complaint with the Michigan Civil Rights Commission (Com­
plaint No. 6585) alleging that the Jackson Public Schools were en­
gaging in a variety of racially discriminatory practices. The com­
plaint specifically asserted that “ The Jackson Public Schools are



5
tegrate the elementary schools and to set up increased 
minority hiring were prompted, in part, by these com­
plaints.

discriminatory in hiring practices.” In addition, the NAACP as­
serted that there was discrimination in discipline, curriculum, and 
relations with the parents o f black students. The NAACP com­
plained as well about the attitudes of the virtually all-white teach­
ing staff, asserting that lower black student achievement was occur­
ring because “ teachers have lower expectations of black students 
. . . [and] teachers and administration interact negatively with 
black students on the basis of preconditioned methods and tech­
niques of dealing with black students.” The complaint asserted that 
“ the counseling program is discriminatory; that counselors are not 
sensitive to the needs of black students; that counselors do not 
relate to realizing the educational . . . potential of black students.”

The Commission’s investigation into these charges revealed sub­
stantial evidence of intentional segregation and discrimination, in­
cluding in hiring and assignment of teachers. See, e.g., Prelimi­
nary Investigation Report, June 16, 1969, at 8. The Superintendent 
of Schools acknowledged that the “ imbalance” of black teachers in 
the system was unacceptable, but argued that final hiring decisions 
were made by the principals o f the various schools; other evidence 
suggested that the system’s central personnel office was deliberately 
steering black applicants to the predominantly black schools. The 
results were clear: Eight of the nine all-white schools had all-white 
faculties (Cascades, Dibble, Firth, Columbia, Huntington, Ridge­
way, Sharp Park, and Trumbull), while half of all the black teachers 
were concentrated in just two schools (McCulloch and Helmer) 
whose pupil enrollments were 72% and 79% black, respectively. 
(See id., exhibits 14 and 19.) The Commission’s investigation re­
sulted in the conclusion that “ each of the allegations as stated in 
the complaint can be substantiated . . .”  (emphasis supplied).

In the face of these findings, the Jackson School Board agreed 
on September 10, 1969 to undertake an ongoing program to integrate 
the school system, which the Commission approved. This agreement 
contained specific provisions dealing with each of the NAACP al­
legations which the commission’s investigation had sustained. With 
regard to its employment practices, the Board agreed to

[t]ake affirmative steps to recruit, hire, and promote minority 
group, teachers and counselors as positions become available 
and pursue other programs now in progress to provide equality 
o f opportunity.

(Notice of Disposition, If II (5 ).)



6

“ To facilitate the accomplishment of these goals, the 
superintendent formed a Professional Staff Ad Hoc Com­
mittee, which made a preliminary report in October, 1969. 
That report included a priority recommendation that 
within a year each of the 22 elementary schools in Jack- 
son should include at least two minority members on the 
school staff. The Superintendent of Schools and the 
Executive Secretary of the Jackson Education Associa­
tion (JEA) served as members of the Committee. The 
JEA had served as collective bargaining representative 
for all teachers in Jackson since 1966.

“ At the time of this recommendation by the Ad Hoc 
Committee, only three of the 22 elementary schools had 
at least two minority teachers on the staff. To implement 
the recommendation at that time, the system would have 
had to immediately hire some 40 additional minority 
teachers.

“A Citizens Schools’ Advisory Committee was then 
formed, with various subcommittees. The Committee 
studied all aspects of integration, including teacher hir-

5 The committee concluded that an increase in the number of 
minority teachers was essential for the education o f white as well 
as black students:

Jackson needs more qualified minority group teachers, admin­
istrators and counselors . . . Minority group students . . . need 
to associate with persons o f their own ethnic extraction who 
have proven levels of achievement. White students have to 
grow up in schools where successful minority group profes­
sional people are more frequent because the attitudes these 
students form in their school years are the attitudes they carry 
through life.

Racial Subcommittee Report, October 16,1969, p. 1.
The Committee also concluded that minority teachers were de­

terred from working in Jackson because of community hostility and 
housing discrimination, and recommended that affirmative steps be 
taken to deal with those problems and to recruit minority teachers 
Id.



7
mg and training.1®1 A Professional Council was also 
formed pursuant to the collective bargaining agreement. 
The Professional Council was made up of an even dis­
tribution of administrators and representatives of JEA. 
Some 50 percent to 60 percent of council discussions dur­
ing this period were involved with integration problems. 
In the words of the then Superintendent of Schools, ‘the 
leadership of the JEA always indicated a sincere com­
mitment to the same basic goals that the Board of Edu­
cation had adopted with reference to development of a 
completely integrated school system.’

“ In November of 1971, the Minority Affairs Office of 
the Jackson Public Schools recommended to the members 
of the racial subcommittee of the Citizens Schools’ Advi­
sory Committee the increased recruitment of minority 
teachers plus increased protection of minority teachers 
from layoff.171 At that point in time, 15.9 percent of the 16

16 In May, 1970, this second committee appointed by the school 
board issued a more detailed set of recommendations for the integra­
tion of the elementary schools. The method to be followed for in­
tegrating the students was, as in other communities, a matter of 
considerable controversy. The committee itself favored “ the adop­
tion of total racial integration as soon as possible,” a step that it 
concluded would require busing. See Plaintiffs’ Exhibit No. 2, 
Jackson Education Association v. Board of Education of Jackson 
Public Schools, No. 4-72340 (E.D. Mich. 1976) (hereafter “Jackson 
I” ), “ Elementary Redistricting Recommendation,”  at 2. But the 
committee found that the elementary school principals did not 
support “ total racial integration of the elementary schools at this 
time”  and that a large majority o f the parents were “ strongly op­
posed”  to busing. Accordingly, the majority of the committee, over 
a number of vigorous dissents (see id., “Addenda to Redistricting 
Subcommittee Report, comments of Mary Ann Alber, Alonzo Little­
john, Carl Breeding, Bruce Wilkins), proposed a desegregation 
plan that involved no busing. The committee also urged, without 
dissent, the “ integration of . . . the teaching staff throughout the 
district.” Id. at 3; see also id. at 4 (urging “ improving the mix of 
teachers” ) .

7 During the period from 1969 to 1972 when the problem of stu­
dent desegregation was still under discussion, the Board took steps 
on its own to deal with the lack of black teachers caused by its prac-



8
students were classified as members of minorities, whereas 
only 8.8 percent of the faculty were minority members. 
The minority-majority faculty ratio for 1971-72 had 
increased from a 1970-71 ratio of 5.5 percent. This in­
crease was a reflection of the intensified affirmative ac­
tion hiring policy instituted by the district wherein the 
system was actively seeking black teaching candidates.

“ The successful recruitment of minority teachers con­
tinued to be burdened, however, by economic circum­
stances and decreasing student enrollment. The straight 
seniority system mandated by the then existing collec­
tive bargaining agreement imposed the primary burden 
of layoffs on the ‘last hired.’ The ‘last hired’ were the 
very minority teachers the system was trying to recruit 
and retain. The affirmative action program was im­
peded by the effects of the seniority system.[8] * I.

tices, steps that would clearly be necessary if  the 1969 goal of two 
minority teachers in each school were to be achieved. Affirmative 
steps were taken to recruit and hire more minority teachers. See, 
e.g., Tr. of 3/31/76 hearing, Jackson I  Thereafter “ Tr. Jackson I” ) 
at 18-19 (testimony o f Kirk Curtis, Executive Secretary of Jackson 
Education Association); Deposition of Lawrence Read, Jackson I, 
(hereafter “ Read Dep.” ) at 5, 22. Between the 1967-68 school year 
and the 1971-72 school year, the number o f minority teachers more 
than doubled, from 21 to 50. See Plaintiffs’ Exhibit No. 15, Jackson
I . The problems which ultimately gave rise to Article XII occurred 
in 1970 and 1971, when faculty lay-offs became necessary. As a 
result o f the Board’s past hiring practices, a substantial majority of 
the district s non-white teachers had less than three years of senior­
ity. Under the collective bargaining agreement in effect prior to 
1972, however, lay-offs were to be made on the basis o f seniority; the 
1970 and 1971 lay-offs thus substantially defeated the Board’s re­
cent efforts to recruit and hire more non-white teachers. The effect 
of that seniority rule, the school superintendent testified, was to 

literally wipe out all the gain that had been made in terms of 
affirmative action . . . .” Read Dep. at 24. Minority teachers re­
cruited and hired one year were simply laid off the following year.

® By the beginning of 1972 the leaders of the teachers’ union, 
with the acquiescence o f its members, had already begun to prepare 
possible alternatives to the seniority lay-off rule because the union



9

“ In January of 1972, on the eve of commencement of 
negotiations for a new collective bargaining agreement, 
Walter Norris of the Minority Affairs Office of the Jack- 
son Public Schools issued a questionnaire to all teachers, 
wherein the Superintendent solicited their views as to the 
system layoff policy. In the questionnaire he posed two 
specific alternatives, to-wit: continuation of a straight 
seniority system, or a freeze of minority layoffs to en­
sure retention of black teachers in exact ratio to the 
black student population.

“ The questionnaire was not well received by the teach­
ers or the Jackson Education Association. Ninety-Six 
percent of the teachers expressed a preference for the 
straight seniority system, and the JEA, feeling that the 
questionnaire constituted illegal interference with the 
bargaining process, threatened the filing of an unfair 
labor practice charged91 * 9

recognized that a modification of the rule was necessary to bring 
about integration of the staff. Tr. Jackson I, at 29 (testimony of 
JEA Executive Secretary Kirk Curtis). In February, 1972, the 
Jackson Board received a committee report recommending a desegre­
gation plan for the fall o f 1972, a proposal which included, as had 
the 1969 report, a goal o f having no- less than two minority teachers 
in every elementary school. Plaintiffs’ Exhibit No. 7, Jackson I, 
at 2. The Board adopted that plan in March of 1972, see Read Dep. 
at 46, even though at that time there w-ere still too few minority 
teachers in the system to meet that stated goal, Tr. Jackson 1, at 
27, and despite the fact that the minority teachers who were in the 
school district were particularly vulnerable to the seniority lay-off 
rule then contained in the Board’s collective bargaining agreement.

9 JEA Executive Secretary Curtis testified:
. . .  I felt that Mr. Norris was serving a union membership 
about what the union’s proposals ought to be at the bargaining 
table. I felt it a very clear unfair labor practice and I so in­
formed the Board. And in addition, we took the action of in­
forming our building representatives at that point to instruct 
the membership to respond with B, which they did, about 93 
percent.

Tr. Jackson I, at 25. See also id, at 29 ( “ In fact, at the time we 
indicated to the membership how we decided to have them vote we 
had even at that point, had been working on alternatives [to lay-offs



10
“ In recognition of the serious disagreement on this 

issue, preliminary negotiations were commenced in the 
early spring of 1972.

“ To correct this situation and to ‘end up with a truly 
integrated school system/ representatives of the Board 
and the Jackson Education Association reached tentative 
agreement in the spring of 1972 on various clauses which 
ensured increased minority hiring and increased protec­
tion from layoff for the newly hired minority teachers. 
The layoff provision represented a compromise between 
a standard plant-wide seniority system and a rigid freeze 
for a certain percentile of minority teachers.1101 The col­
lective clauses were eventually memorialized by an agree­
ment which retroactively became effective on July 1, 1972. 10

based solely on seniority], with their knowledge” ) . The union sub­
sequently negotiated a modification of seniority-based lay-offs, see 
infra.

10 The school superintendent and the union leader who had par­
ticipated in the framing of Article XII gave similar explanations 
for that clause. First, Article X II was regarded as an “ integral 
part” of the desegregation plan; without the limited protection it 
afforded to minority teachers, it would have been impossible to 
achieve the school Board’s repeatedly expressed goal of desegregat­
ing the faculty and placing two minority teachers in each elementary 
school. See Read Dep. at 69 (without the lay-off provision “ [ejvery- 
thing else is in danger, if  not destroyed” ) ; Tr. Jackson I at 20 
(change in lay-off rules needed “ to prevent the fruits of recruitment 
from being wiped out the following spring” ), 42 (testimony of JEA 
Executive Secretary Curtis). See also, Proposed Joint Pre-Trial 
Order, Jackson I, at 2 ( “ the active minority recruitment program 
was . . . suffering from the impact of continuing layoffs dictated by 
economic circumstances and magnified by the straight systemwide 
seniority system mandated by the existing collective bargaining 
agreement. To correct this situation, and to ‘end up with a truly 
integrated system,’ the board and the Jackson Education Associa­
tion”  agreed to adopt Article X I I ) .

Second, the limited protection afforded by Article XII was re­
garded as essential to the school Board’s future ability to attract 
and hire minority teachers. The Jackson School Board, like school 
boards throughout the country, hires most of its teachers from col-



11
“ The key layoff language was contained in Article XII, 

B., 1, of the JEA-Jackson Public Schools agreement cover­
ing the period of July 1, 1972 through August 31, 1973.

“ Although tentative agreement was reached on this is­
sue in the spring of 1972, final ratification did not occur 
until the late fall of 1972.

“ In February of 1972, the system experienced ‘a violent 
(racially motivated) explosion at Jackson High School, 
probably the worst we had had/ which featured fighting 
and rioting among the students. On February 17, 1972, 
the Citizens Advisory Committee recommended that all 
elementary schools be desegregated as of the fall of 1972

leges outside of, and far from, the city of Jackson itself. Read Dep. 
at 73-75. Many of the minority teachers whom Jackson wanted to 
attract were from southern colleges, and those teachers were under­
standably reluctant to move all the way to Michigan if they faced 
an imminent threat o f lay-off. The lay-offs of large numbers of 
minority teachers in 1970 and 1971 made recruiting such teachers 
far more difficult, Tr. Jackson I at 20, and the abolition of Article 
XII would have “cripple [d] . . . greatly” the Board’s efforts to 
recruit minority teachers, id. at 56; see also id. at 55 (convincing 
minority teachers to move to Jackson from the south “ particularly 
difficult” without Article X I I ) .

Third, both school officials and the teachers’ union in Jackson 
regarded the presence on the faculty o f a substantial number of 
minority teachers as essential to providing an effective education, 
particularly for minority students, Tr. Jackson I at 56 (testimony 
of JEA Executive Secretary Curtis) :

It is a great deal of help to both students and other staff in a 
particular school to have a mixed staff o f minority teachers, 
black teachers on staff. Gives the black students someone they 
can, you know, have an affinity with if they can look up to, if 
you will and it gives, I think if anything, more importantly 
more accurate and better picture if  you will o f minority people 
to white students.. . .
Q. . . .  [w]hen you arrived at the conclusion to have the affirma­
tive action program . . . you did that for education reasons ?
A. Well, yeah. I guess you could say that part of the educa­
tional setting is to present a multi-cultured environment. Chil­
dren don’t see black people as maids and menials, that they saw 
them as professional people. And th a t. . .  is education.



12
and that racial balance be achieved on each elementary 
staff with a minimum of two black teachers to be included 
on the staff at each building. The Board, after consider­
able agonizing, adopted the recommendations, proceeded 
to prepare the community for the process, and made the 
necessary staff assignments.

“ The elementary schools were then integrated in the 
fall o f 1972.[11] The teachers reported to work even 
though final agreement had not been reached at the bar­
gaining table. Services were not withheld by the JEA at 
the outset of school because it was felt that such action 
might be interpreted as a strike against integration. A 
strike eventually occurred in the late fall, but final agree­
ment was ultimately reached.

“ At the teacher ratification meeting, some protests were 
received in regard to the proposed contract layoff policy. 
Some critics claimed that the compromise represented a 
destruction of the teacher seniority system. The leader­
ship explained that a staff racial mix was educationally 
sound and that the system needed black teachers. It was 
also noted that the new layoff policy was partially de­

11 In adopting the 1972 elementary school desegregation plan, 
and in pressing for a provision such as Article XII to assure the 
retention of sufficient minority teachers to implement the faculty 
aspects of that plan, school officials perceived that their action was 
required by federal law. Read Dep. at 65-68. By the spring of 1972 
a number o f other school districts in Michigan had been named in 
federal desegregation suits or were already under federal court 
orders. Id. at 43. In a written statement on the desegregation 
plan circulated to parents in April o f 1972, the Jackson School 
Board explained why it was taking voluntary action rather than 
waiting for a court order:

Waiting for what appears the inevitable only flames passions 
and contributes to the difficulties of an orderly transition from 
a segregated to a desegregated school system. Firmly estab­
lished legal precedents mandate a change. Many citizens know 
this to be true. Waiting for a court order emphasizes to many 
that we are quite willing to disobey the law until the court 
orders us not to disobey the law.

Plaintiffs’ Exhibit No. 8, Jackson I, question 4.



13
signed to correct past discriminatory policies. The teach­
er’s leader stated that ‘every single teacher accepted the 
premise that the presence of minority teachers was help­
ful.’ The teachers ratified the contract.

“ According to the Executive Secretary of the Jackson 
Education Association, the negotiation and ratification of 
the layoff language was the ‘most difficult balancing of 
equities that he had ever encountered.’ tl2]

Shortly after ratification of the contract in the fall of
1972, the Superintendent of Schools, Dr. Lawrence Read, 
was fired.

“ Layoffs were again necessary in the spring of 1973. 
The contract language was followed. In the summer of
1973, a new collective agreement was under negotiation. 
Following another teacher strike in the fall of 1973, a 
contract was completed. In spite of radical changes in 
personnel on the Board of Education since the spring of 
1972, the same affirmative action and layoff language con­
tinued in the successor agreement. (Article VII, E, F and 
Article X II). 12

12 In the 1972 collective bargaining negotiations between the 
Board and the JEA, the Board had proposed that there be a com­
plete freeze on the laying off o f minority teachers, at least until the 
proportion of minority teachers reached 15% or 17%. Read Dep. 
at 28 ( “ [T]he business of not dismissing any minority teachers was 
certainly paramount in our objectives that year in negotiations, 
and I think that we would have like to have some kind of language 
in the contract that would have prohibited this” ) ; Tr. Jackson I 
at 31. The union, however, strongly opposed this proposal. Read 
Dep. at 28-29. Article XII was ultimately agreed upon in the spring 
of 1972 as a compromise method of providing some protection for 
the newly hired minority teachers in order to permit implementation 
of the desegregation plan without placing on white teachers the 
entire burden of any lay-offs. Id. Although it had opposed the 
freeze, the union strongly favored Article XII. The union members 
were virtually unanimous in agreeing that there was a need for 
more black teachers, and Article XII was perceived as necessary to 
bring that about and to achieve the widely accepted goal of “ having 
minority teachers in every building” and “ to correct past problems.”  
See Tr. Jackson I  at 42-43.



14
“ In April of 1974, the Jackson Public Schools an­

nounced the impending layoff of 75 teachers, 19 of whom 
were minority personnel. The ratio of minority personnel 
on the staff at said time was 11.1 percent. Ignoring the 
contract language and the ratio figure, the Board chose 
to retain all tenured teachers and failed to maintain the 
percentage of minority personnel which existed at the 
time of the layoff. As a consequence of this action, the 
minority teachers, through Linda Benson, filed a complaint 
in Federal District Court, alleging that the actions of 
the defendant, Jackson Public Schools, violated the Plain­
tiffs’ civil rights. Concurrent with this claim was a re­
quest that the Federal District Court assume pendente 
jurisdiction over the breach of contract claimJ13] The 
Federal District Court, through Judge DeMaseio’s memo­
randum opinion and order dated January 12, 1977, re­
fused to accept pendente jurisdiction over the contract 
claim, f* 14̂  This order was subsequent to a trial in the 
matter in which the aforesaid facts were proved and later

“ The Jackson Education Association brought the Jackson I 
suit in federal court together with two black teachers laid off as 
a consequence of the Board’s non-compliance with Article XII. In 
Count I of their complaint, these plaintiffs asserted a federal cause 
of action, claiming that Board practices had the effect of discrimi­
nating against blacks; prior to trial, the plaintiffs amended this 
count to allege a violation o f Title VII. Count II requested the 
federal court to exercise pendent jurisdiction over plaintiffs’ state 
law contract claim seeking to enforce Article XII.

14 The court ruled that the plaintiffs had presented their federal 
claim based on statistical disparities and effects solely as a jurisdic­
tional predicate for resolution o f their pendent state law contract 
claims, that “ the proofs presented at trial were not directed at 
establishing violations” of federal law, and that instead the “ dis­
pute centers about a conflict between the provisions of a collective 
bargaining agreement and state law as interpreted by the Jackson 
Board.” (J.A. 37.) Because any federal claim was advanced “ to set 
forth a pretextual jurisdictional basis”  {id.), Judge DeMascio re­
fused to rule on the pendent state law claims and dismissed the case 
{id. at 37, 39.) Rather than pursue an appeal in the Sixth Circuit 
(J.A. 40), the Jackson Education Association eventually proceeded 
to state court to pursue the state law claim. (J.A. 40.)



15

stipulated to in Jackson EducoMon Association, Inc. v. 
Board of Education of the Jackson Public Schools, No. 
77-0011484 CZ (Jackson County Circuit Court, August 
31, 1979).

“ In this Circuit Court case, Judge Britten entered a 
declaratory judgment against the defendant, Jackson Pub­
lic Schools, on grounds of the breach of contract, and 
thereby found the minority Plaintiffs entitled to relief and 
damages. In this opinion, Judge Britten held the affirma­
tive action plan to be constitutional and not in violation of 
the Teachers Tenure Act. MCLA 38.105; MSA 15.2005.[15J 
As a result of this opinion, the defendant, Jackson Public 
Schools, formed its present conduct requiring the applica­
tion of the affirmative action clause when layoffs were 
necessary at the close of the 1981-82 school year. Conse­
quently, the laid-off white Plaintiffs filed the instant suit 
alleging the unconstitutionality of the affirmative action 
clause under the Fourteenth Amendment. . . .”

SUMMARY OF ARGUMENT
In 1972, following four years of investigating the 

causes and consequences of racial segregation of staff and 
elementary students, the Jackson Board of Education 
chose voluntarily to integrate its elementary schools and 
faculty. In so doing the Board showed its willingness to 
obey the spirit of this Court’s directives in Brown v. 
Board of Education, 349 U.S. 294 (1955) (Brown II) ,  
Green v. County School Board of Neiv Kent County, 391 
U.S. 430 (1968), and Swann v. Charlotte-Mecklenburg 
Board of Education, 402 U.S. 1 (1971). Instead of litigat- lo

lo Judge Britten declined to hold that race-conscious affirmative 
action could only be promulgated by a court. Instead, he ruled that 
the democratic process and collective bargaining were the preferable 
method for resolving the difficult issues posed by efforts “ to achieve 
the end of a truly integrated school system’’ (J.A. 42) and to over­
come the effects of “ societal discrimination.” J.A. 49, 51-53. The 
state court therefore entered a declaratory judgment that the 
Board had violated Article XII and directed the Board to pay dam­
ages to the black teachers injured by that breach of contract.



16
ing the issue for years and eventually being ordered by 
the federal courts to take specific action, as happened in 
many neighboring school districts, the Jackson Board 
chose to conform voluntarily to its constitutional obliga­
tions as it understood them.

In light of this history, as well as of its sincere belief 
in the educational soundness of its goals, the Jackson 
Board of Education and the Jackson Education Associa­
tion collectively bargained contract provisions that would 
promote the hiring and retention of minority teachers. 
As the responsible local education agency under state law, 
the democratically elected Jackson Board is a proper body 
to make this determination as to the consequences of its 
past discrimination and to establish ongoing desegregation 
and educational goals for its faculty and students. Such 
voluntary, good-faith desegregation efforts, contrary to 
Petitioners’ contentions, are fully supported by this 
Court’s prior rulings on appropriate remedies and per­
missible affirmative action. See infra Argument I.

Moreover, the particular race-conscious remedies imple­
mented by the Jackson Board were fairly bargained with 
the teachers’ certified representative. They were tailored 
to avoid dismantling the Board’s ongoing affirmative ef­
fort to thoroughly desegregate the system of schooling 
while providing for the sharing of the burdens of lay-offs 
among minority and non-minority teachers without stig­
matizing any individual or group as inherently inferior. 
See infra Argument II.

We recognize that this case arrives in this Court in a 
troublesome procedural posture because of the trial court’s 
ruling on the cross-motions for summary judgment with­
out the benefit of an answer or evidentiary hearing. We 
submit, however, that the lower courts properly under­
stood that the Petitioners did not contest the basic facts 
below; these facts constituted at least a plausible showing 
of historic discrimination by the Jackson Public Schools 
against blacks, the effects of which were continuing to be 
felt by students in the school system. Thus, the lower



17

courts properly concluded that the use of reasonable, race­
conscious criteria in retaining minority teachers was sub­
stantially related to overcoming the consequences of plausi­
ble past discrimination and assuring effective desegregated 
education in the Jackson Public Schools. See infra Argu­
ment III.

ARGUMENT
I. THE JACKSON BOARD OF EDUCATION MAY, 

CONSISTENT WITH THE FOURTEENTH AMEND­
MENT, ADOPT ARTICLE X II (THE RACE- 
CONSCIOUS LAY-OFF PROVISION) AS PART OF 
A PLAN TO REMEDY PRIOR DISCRIMINATION 
AND TO ACHIEVE THE EDUCATIONAL BENE­
FITS OF SCHOOL INTEGRATION FOR ITS STU­
DENTS.

The Jackson Board of Education believed that segrega­
tion in the elementary schools was caused, at least in 
part, by past policies of the Board and staff. This view 
was supported by a four-year study, including considera­
tion by a “blue ribbon”  citizens’ advisory committee and 
an Ad Hoc Committee comprised of teachers and admin­
istrators, by complaints filed by the NAACP, by an in­
vestigation of the Michigan Civil Rights Commission, and 
by the Board’s knowledge of its prior practices concern­
ing teacher hiring and student and teacher assignment.16

Recognizing that 90% of the black students were 
housed in two black elementary schools, that the majority 
of the very small number of elementary-level black teach­
ers were in those black schools, that black teachers had 
previously been chronically underrepresented on the Jack- 
son staff, and mindful both of this Court’s mandates in

16 See Firefighters Local Union No. 178U v. Stotts, 104 S. Ct. 
2576, 2589 (1984) (O’Connor, J., concurring) (stating importance 
of presenting “plausible case o f discriminatory animus” in adoption 
of seniority system to justify consent decree modification in Stotts) ;  
United Steelworkers of America v. Weber, 443 U.S. 193, 211 (1979) 
(Blackmun, J., concurring) (suggesting “ arguable violation” stand­
ard for voluntary affirmative action).



18

Brown II, Green, and Swann and of the educational value 
of racially integrated education, the Jackson Board 
reached the logical conclusion that its elementary schools 
should at last be desegregated. Having voted to adopt a 
pupil desegregation plan, the Board at the same time de­
termined to integrate the faculty.

The hiring, assignment and lay-off goals of the faculty 
integration plan were set forth in the labor agreement 
which was collectively bargained with the teachers’ union 
to support the desegregation plan. On no occasion have 
the school system’s hiring or assignment goals been chal­
lenged; this litigation has dealt solely with the lay-off 
provision, Article XII, which has been included by agree­
ment of the parties in each subsequent contract.17 The 
total number of teachers in the district has been declin­
ing as the total number of students in the school district 
declines. Absent Article XII, the district therefore would 
have very few minority teachers and the Jackson Board’s 
effort to integrate its school system would be frustrated. 
The fourteenth amendment does not require this result.

17 At Page 15, note 14 of Petitioners’ Brief, an issue is apparently 
raised relative to “ labor market figures.” See also Pet. Br. at 17 
n.15. This issue has no relevance to the case at bar since Petitioners 
have on no occasion sought to state a cause of action relative to the 
affirmative hiring provision, Article V II; their only mention of 
that article appears in paragraph 8 of their Complaint.

If there were a relevant dispute as to the appropriate labor 
market for hiring, however, the Jackson Board is prepared at any 
trial to demonstrate that the Jackson Public Schools have sought 
teachers (black and white) from a broad geographical area, prin­
cipally out-of-state, and would also be able to prove that from an 
economic position, such districts as Kalamazoo, Grand Rapids, De­
troit, and Lansing have been able to offer their teachers higher 
salaries and are culturally more attractive, placing Jackson at a 
competitive disadvantage within the in-state sub-market. Petition­
ers’ failure to raise a hiring issue makes this inquiry into the rele­
vant labor market unnecessary.



19
A. A Local School Board Is A Proper Governmental 

Body To Evaluate The Effects Of Its Past Conduct 
And The Need For An Integrated System Of School­
ing, And To Adopt and Implement Effective 
Measures, Including Race-Conscious Measures, To 
Achieve These Ends. The Decision Of The Jackson 
Board Of Education To Integrate Its Schools And 
Faculties And To Collectively Bargain For A Rea­
sonable Limitation On Minority Teacher Lay-Offs 
While That Goal Is Being Pursued Was Proper.

As demonstrated above, the record in this matter es­
tablishes that the lay-off provision, Article XII of the col­
lective bargaining agreement, which Petitioners attack, 
is an integral part of a comprehensive voluntary effort 
by the Jackson Board of Education to integrate its pub­
lic schools. Whatever may be the case with respect to 
other kinds of public agencies, the decisions of this Court 
leave no room to question either the competence or the 
obligation of local public school authorities to recognize 
and evaluate their own discriminatory conduct or that 
of their predecessors in office, and to develop and imple­
ment “whatever steps are necessary”  to extirpate the re­
maining effects of that conduct, including taking such 
race-conscious steps as may be necessary.

In Brown v. Board of Education, 347 U.S. 483 (1954) 
(Brown I ) ,  the Court determined that classifications that 
harm an oppressed group are likely to be the result of 
invidious discrimination or prejudice. The Court in 
Brown v. Board of Education, 349 U.S. 294 (1955) 
(Brown II) focused on the need to undo the systematic 
effects of longstanding discrimination against blacks in 
public educational institutions, in order to assure a tran­
sition to a unitary system of schooling. In Brown II, it is 
affirmatively stated that the local school board is the 
proper entity to determine the need to integrate and is 
under a duty to do so:

Full implementation of these constitutional prin­
ciples may require solution of varied local school 
problems. School authorities have the primary re­



20
sponsibility for elucidating, assessing, and solving 
these problems; courts will have to consider whether 
the action of school authorities constitutes good faith 
implementation of the governing constitutional prin­
ciples.

Brown II, 349 U.S. at 299 (emphasis supplied), quoted 
in Swann, 402 U.S. at 12.

Thus, it is well settled that the state and its local 
school board instrumentalities have a duty to remedy the 
consequences of their discriminatory conduct, see, e.g., 
Milliken v. Bradley, 433 U.S. 267, 281 (1977); Green v. 
County School Board of New Kent County, 391 U.S. 430, 
437-38 (1968), and that the duty to integrate is a con­
tinuing and affirmative one. See, e.g., Columbus Board 
of Education v. Penick, 443 U.S. 449 (1979).

The precedents cited above amply support the actions 
of the Jackson Board of Education in this case. Plausibly 
believing from the facts put before it that the elementary 
schools were segregated, as to both pupils and teachers, 
supported by four years of study and by a Michigan 
Civil Rights Commission investigation, and mindful of 
this Court’s mandates, the Jackson Board acted reason­
ably in 1972 in integrating the elementary schools and 
staff. Considering its first-hand knowledge of the facts, 
the J ackson School Board was justified in concluding that 
its prior student assignment and faculty hiring and as­
signment policies may have contributed to the segregated 
system of elementary education extant in 1972.18

18 In view of the subsequent judicial decrees against nearby school 
districts in Michigan and in neighboring Ohio, the decision of the 
Jackson Board in 1972 voluntarily to integrate its schools on the 
basis of a comparable factual history as was developed in those 
cases should be a matter for celebration, not censure. If other school 
boards had made the same determination as the Jackson Board, the 
need for wide-ranging court orders might have been substantially 
lessened. See Dayton Board of Education v. Brinkman, 443 U.S. 
526 (1979) ; Columbus Board of Education v. Penick, 443 U.S. 449 
(1979) ; Milliken v. Bradley, 433 U.S. 267 (1977) (Detroit) ; 
NAACP v. Lansing Board of Education, 559 F.2d 1042 (6th Cir.



21
It then became the Board’s obligation to design and 

carry out steps which would effectively remedy any prior 
misconduct on its part and establish a fully unitary school 
system for its students. The Court has described this 
affirmative duty as one requiring the elimination of all 
vestiges of school discrimination “ root and branch,”  
Green, 391 U.S. at 438. In Swann, 402 U.S. at 15, 22-31, 
the Court suggested that a local school board, in making 
the determination to integrate, should consider a wide 
range of factors in designing a remedy for the vestiges 
of prior segregation and discrimination. Swann and 
Brown II call for an evaluation by local school boards of 
the total factual situation presented in each case, and 
encourage local boards voluntarily to integrate without 
the necessity of suit either by the government or by in­
dividual parents.

In this light, it is not surprising that this Court has 
consistently recognized that race-conscious policies are 
frequently “ the one tool absolutely essential”  for redress­
ing past discrimination, North Carolina State Board of 
Education v. Swann, 402 U.S. 43, 46 (1971), and that 
school boards may use that tool when integrating volun­
tarily or under court order. In Swann, for example, the 
Court made it clear that school districts could use race­
conscious criteria in student assignment in order to 
achieve student integration even to the point of requiring 
that “ each school should have a prescribed ratio of Negro 
to white students reflecting the proportion for the district 
as a whole.”  402 U.S. at 16. (Here, the Jackson Board 
adopted much more flexible approaches to effectively in­
tegrate students and staff.)

The Court has recognized that although a blanket pro­
hibition against race-conscious redress of discrimination 
might seem neutral on its face, like the prohibition in

1977), cert, denied, 438 U.S. 907 (1978); Oliver v. Michigan State 
Board of Education, 508 F.2d 178 (6th Cir. 1974), cert, denied, 
421 U.S. 963 (1975) (Kalamazoo); Berry v. School District of 
Benton Harbor, 442 F. Supp. 1280 (W.D. Mich. 1977).



22
Hunter v. Erickson, 393 U.S. 385 (1969) it would be far 
from neutral in its operation. Such a prohibition “would 
freeze the status quo that is the very target of all deseg­
regation processes,” McDaniel v. Barresi, 402 U.S. 39, 41 
(1971) ; see North Carolina State Board of Education v. 
Swann, 402 U.S. at 45-46 (stating that “  ‘color blind- 
[ness]’ . . . against the background of segregation would 
render illusory the promise of Broivn v. Board of Edu­
cation” ) .

The Jackson Board of Education, a popularly elected 
governmental body, chose to come to grips with its own 
prior history of segregated schooling by adopting a vari­
ety of color-conscious programs to integrate its school 
system, including Article XII of its collective bargain­
ing agreement dealing with teacher lay-offs. Petitioners 
criticize that decision because, as in Regents of the Uni­
versity of California v. Bakke, 438 U.S. 265 (1978), no 
judicial finding of discrimination was made in this ease. 
However, as Justice Brennan, in an opinion in which 
Justices White, Marshall, and Blackmun concurred, stated, 
id. at 364:

[Any] requirement of a judicial determination of a 
constitutional or statutory violation as a predicate 
for race-conscious remedial actions would be self- 
defeating. Such a requirement would severely un­
dermine efforts to achieve voluntary compliance with 
the requirements of law. And, our society and juris­
prudence have always stressed the value of voluntary 
efforts to further the objectives of the law. Judicial 
intervention is a last resort to achieve cessation of 
illegal conduct or the remedying of its effects rather 
than a prerequisite to action.

The Jackson Board has acted in accordance with the 
mandates of this Court. Where a school board voluntarily 
seeks to comply with a longstanding constitutional man­
date to recognize, assess, and remedy its own possibly dis­
criminatory conduct, its good faith and reasonable judg­
ment should not be overruled or second-guessed.



23
Petitioners and the United States insist, however, that 

only an adjudication against it of unconstitutional con­
duct (with all o f its attendant collateral consequences) 
will permit a local school board to undertake race­
conscious measures to further integration. The asserted 
justification for this proposed prohibition on affirmative 
action programs is that, since our history has been so 
riddled with the use of racial classification by the ma­
jority to exclude, stigmatize and subordinate racial mi­
norities, racial considerations can now never be taken 
into account by the majority in the process of seeking to 
remedy the stark and subtle vestiges of past discrimina­
tion. But to exclude from constitutional analysis both the 
historical context and purposes for which racial consid­
erations are used serves neither logic, justice, nor our 
constitutional heritage. See Fullilove v. Klutznick, 448 
U.S. 448 (1980) ; Bakke; Washington v. Davis, 426 U.S. 
229 (1976) ; Swann.

If the Court were to accept the argument of petitioners 
and the Department of Justice, a school board concerned 
about the possibility of its own past discrimination would 
either have to undertake a lengthy recitation of details 
of its past questionable conduct at a public inquiry or 
wait until it was successfully sued in court before it 
could use reasonable race-conscious methods to cleanse its 
school system of the remaining vestiges of segregation 
and to provide an integrated education for its students.

In the instant case, the lay-off program merely protects 
gains in faculty desegregation from dissipation through 
the lay-off procedure. The parties to the collective bar­
gaining agreement recognized that the Article XII lan­
guage regarding lay-offs would adversely affect some 
white teachers, but felt it was necessary in order to pro­
tect the gains made through affirmative action hiring. 
The language was designed to protect against a “ Catch 
22 ’ situation, wherein minority teachers would be hired, 
only to be immediately laid off, thereby continuing a pat­
tern of racial exclusion of blacks from the previously 
segregated Jackson Public Schools.



24
To deny all use of racial consideration in the remedial 

context would create the following scenario: governmen­
tal actors could choose, in the face of past discrimination 
or disadvantage, to give preferential treatment to elderly 
people, military veterans, impoverished people, people 
from certain geographic localities, and even women, so 
long as such treatment was, at the most, “ substantially 
related” to an important governmental purpose. Only 
racial minorities would be prohibited from receiving pref­
erential treatment from the majority to remedy past 
discrimination.19

In approving Article XII, the District Court in this 
case adopted the test established by the Fifth Circuit in 
United States v. Miami, 614 F.2d 1322 (5th Cir. 1980), 
modified, 664 F.2d 435 (1981) : “The reasonableness test 
asks whether the affirmative action plan is ‘substantially 
related’ to the objectives of remedying past discrimina­
tion and correcting ‘substantial’ and ‘chronic’ underrepre­
sentation.” Wygant, 546 F. Supp. at 1202. As part 
of the ongoing school desegregation program, Article XII 
represents a reasonable and effective remedial tool for 
integrating the Jackson Public Schools. North Carolina 
State Board of Education v. Swann, 402 U.S. at 45-46; 
Swann, 402 U.S. at 25 ( “As we said in Green, a school

19 As stated in Bakke, 438 U.S. at 368 (Opinion of Brennan, 
White, Marshall & Blackmun, JJ.) :

Nothing whatever in the legislative history of either the Four­
teenth Amendment or the Civil Rights Acts even remotely sug­
gests that the States are foreclosed from furthering the funda­
mental purpose of equal opportunity to which the Amendment 
and those Acts are addressed. Indeed, voluntary initiatives by 
the States to achieve the national goal of equal opportunity 
have been recognized to be essential to its attainment. “ To 
use the Fourteenth Amendment as a sword against such State 
power would stultify that Amendment.”  Railway Mail Assn. v. 
Corsi, 326 U.S. 88, 98 (1945) (Frankfurter, J., concurring).

The interpretation of the fourteenth amendment as allowing some 
benign uses of race-conscious state action has been supported in 
several other opinions by members of this Court. See, e.g., Bakke, 
438 U.S. at 320 (Powell, J .).



25

authority’s remedial plan . . .  is to be judged by its effec­
tiveness” ).

B. Without Regard To Its Own Prior Discrimination, 
A Local School Board Is A Proper Body To Estab­
lish Affirmative, Race-Conscious Educational And 
Institutional Goals, And The Jackson Board’s Ac­
tion Was Appropriate In This Respect Also.

This Court, in its landmark decision in Brown I  noted 
that :

t E ] ducation is perhaps the most important function 
of state and local governments. Compulsory school 
attendance laws and the great expenditures for edu­
cation both demonstrate a recognition of the impor­
tance of education to our democratic society . . . . 
Today it is a principal instrument in awakening the 
child’s cultural values, and in preparing him for 
later professional training, and in helping him to 
adjust normally to his environment.

347 U.S. at 493. In Swann, the Court expressly consid­
ered and explicitly rejected the argument that the Con­
stitution requires that teachers be assigned on a “ color 
blind” basis. 402 U.S. at 19. In that same case, the 
Court stated:

School authorities are traditionally charged with 
broad power to formulate and implement educa­
tional policy and might well conclude, for example, 
that in order to prepare students to live in a plural­
istic society each school should have a prescribed 
ratio of Negro to white students reflecting the pro­
portion for the district as a whole. To do this as an 
educational policy is within the broad discretionary 
powers of school authorities; absent a finding of con­
stitutional violation, however, that would not be 
within the authority of the federal court.

402 U.S. at 16 (emphasis supplied). The Court repeated 
this view in North Carolina State Board of Education v. 
Swann:



26
[S] chool authorities have wide discretion in formu­
lating school policy . . . .  [ 4 ] s a  matter of educational 
policy school authorities may well conclude that some 
kind of racial balance in the schools is desirable quite 
apart from any constitutional requirements.

402 U.S. at 45 (emphasis supplied).
The broad scope of authority to take race into ac­

count is, of course, not limited to local school boards 
or to public agencies. In Bakke, 438 U.S. at 320 (Opin­
ion of Powell, J .), the Court held that a medical 
school had a constitutionally valid interest in achieving 
an ethnically or educationally “ diverse” student body, so 
that it could give “ competitive consideration to race and 
ethnic origin” in determining admission to medical school. 
In Fullilove v. Klutznick, 448 U.S. 448 (1980), the Court 
approved the constitutionality of a limited affirmative 
action program where Congress relied on findings of past 
societal discrimination against minority contractors. And 
in United Steelworkers of America v. Weber, 443 U.S. 
193 (1979), the Court sanctioned the voluntary use of 
race-conscious practices by private employers and unions 
to alleviate the continuing barriers to employment op­
portunities for blacks in the skilled crafts. Here, the 
Jackson Board’s interest in a reasonable affirmative ac­
tion program is at least as compelling and valid as in 
Bakke, Fullilove and Weber.

In Bakke, as in this case, there was no judicial finding 
that the University of California at Davis had engaged 
in any past discrimination, 438 U.S. at 301 (Opinion of 
Powell, J.) ; nevertheless, Justice Powell viewed the race- 
conscious goals, though not the particular device of the 
University of California plan, as analogous to the Har­
vard College admissions program:

[T ] he [Harvard Admissions] Committee is aware 
that if Harvard College is to provide a truly hetero­
gen [e]ous environment that reflects the rich diversity 
of the United States, it cannot be provided without 
some attention to numbers. . . . [Only] 10 or 20



27
black students could not begin to bring to their class­
mates and to each other the variety of points of 
view, backgrounds and experiences of blacks in the 
United States. . . . [T]he Committee on Admissions 
is aware that there is some relationship between 
numbers and achieving the benefits to be derived 
from a diverse student body. . . .

Id. at 323 (Appendix to Opinion of Powell, J .). The 
institutional interest and educational needs of the medical 
school were the bases for Justice Powell’s conclusion that 
the medical school could use race-conscious admissions 
criteria in order to achieve an “ educationally diverse” 
student body. Id. at 315, 320.

Justice Powell noted that a state’s interest in facil­
itating the health care of its citizens and in attaining a 
diverse student body in its educational institutions could 
be sufficiently compelling to support the use of racial 
classifications. 438 U.S. at 310-12. As he stated:

The fourth goal . . .  is the attainment of a diverse 
student body. This clearly is a constitutionally per­
missible goal for an institution of higher education.
. . . Physicians serve a heterogeneous population. 
An otherwise qualified medical student with a par­
ticular background— whether it be ethnic, geographic, 
culturally advantaged or disadvantaged— may bring 
to a professional school of medicine experiences, out­
looks, and ideas that enrich the training of its stu­
dent body and better equip its graduates to render 
with understanding their vital service to humanity.

Id. at 311-14. Thus, the fourteenth amendment does not 
prevent a state or local government from implementing 
race-conscious measures to meet a sufficiently important 
government interest. Bakke, 488 U.S. at 362-69 (Opinion 
of Brennan, White, Marshall, & Blackmun, J J .) ; id. at 
314-20 (Opinion of Powell, J .). That principle controls 
the decision in the case at bar.

The Jackson School Board, as indicated earlier, was 
concerned both with educational values and the remedial



28
need to integrate. Even assuming there were no black 
students in the district, the Board’s affirmative program 
for integrating staff still is a valid educational and insti­
tutional interest which would justify the race-conscious 
Article XII under the analysis of Justice Powell in 
Bakke, 438 U.S. at 311-14.

The Jackson Board concluded that white students 
should be exposed to black teachers and should be pre­
pared to participate in a multi-racial society.20 Believing 
that a multi-racial education was an important part of 
the educational function of the schools, the Jackson Board 
had added black culture courses to its curriculum, re­
viewed its other courses for racial bias, and worked hard 
to promote racial understanding in the community at the 
same time as it sought to integrate its elementary schools 
and faculty. This was part of the comprehensive com­
mitment of the Board to an effective system of integrated 
education.

It is also significant that duly elected representatives 
of the teachers joined in this effort throughout the col­
lective bargaining process. The Jackson Board was con­
vinced that the presence of black teachers would bring 
an important perspective to students and faculty, and 
that such a diverse faculty would be able to relate valu­

20 See Estes v. Metropolitan Branches, Dallas NAACP, 444 U.S. 
437, 451 (1980) (Powell, J., dissenting from denial o f certiorari) 
( “ [T ]he benefits o f attending ethnically diverse schools [are] ex- 
perience[s] that preparfe] a child for citizenship in our pluralistic 
society” ) ; Washington v. Seattle School District No. 1, 458 U.S. 457, 
495 (1982) (Powell, J., dissenting) ( “ [CJhildren of all races benefit 
from exposure to ‘ ‘ ‘ethnic and racial diversity in the classroom” ’ ” ) 
[citations omitted]. Cf. Bridgeport Guardians, Inc. v. Bridgeport 
Civil Service Commission, 482 F.2d 1333, 1341 (2d Cir. 1973), cert, 
denied, 421 U.S. 991 (1975) (presence of minority employees in 
visible positions after long exclusion may lessen divisiveness) ; 
NAACP v. Allen, 493 F.2d 614, 621 (5th Cir. 1974) ; Arnold v. 
Ballard, 390 F. Supp. 723, 736 (N.D. Ohio 1975), affd, 12 FEP 
Cases 1613 (6th Cir. 1976), vacated and remanded on other grounds, 
16 FEP Cases 396 (6th Cir. 1976).



29
able experiences and bring new perceptions to the class­
room that would contribute to the students’ total educa­
tional experience and add a needed balance to the faculty 
and curriculum.21 Surely, such goals are not constitu­
tionally barred by section one of the fourteenth amend­
ment.22 If a state university has a compelling interest

21 See Berry v. School District of Benton Harbor, 467 F. Supp. 
721, 744, 748 (W.D. Mich. 1978) (Michigan State Board of Educa­
tion 1966 Policy Statement and 1977 Guidelines requiring affirma­
tive efforts to attract and hire minority teachers).

In Washington v. Seattle School District No. 1, 458 U.S. 457 
(1982), neither the State of Washington, the United States Govern­
ment, 458 U.S. at 472 n.15, nor any member of this Court contested 
the notion that the Seattle School District could voluntarily use 
race-conscious methods to eliminate racially imbalanced schools, 
even in the absence of a judicial finding of past intentional discrimi­
nation, see 458 U.S. at 464 n.8. The dissenters in this Court argued 
that state-level educational policy should be able to override a local 
school board’s voluntary decision to bus students. 458 U.S. at 488 
(Powell, J., dissenting). In the present case, there has been no 
opposition from the state government. In fact, the Michigan At­
torney General’s office is filing an amicus brief on behalf of the State 
of Michigan and the Michigan Department of Civil Rights.

22 Using an alternative constitutional approach, the Court could 
uphold the plan in this case by relying on the thirteenth amendment, 
which “ [w;] holly aside from the fourteenth amendment. . . envisions 
affirmative action aimed at blacks as a race.”  Williams v. New 
Orleans, 729 F.2d 1554, 1570, 1577 (5th Cir. 1984) (en banc) (Wis­
dom, J., concurring in part and dissenting in part).

The Justice Department, in the United States’ amicus brief at 
11-17, however, offers a stilted historical perspective on the Civil 
War Amendments which would bar all race-conscious action except 
of the type ordered by federal courts to provide narrow relief to 
specific victims of proven specific discriminatory acts. The four­
teenth amendment was fashioned and approved by the same Con­
gress that deliberately enacted race-conscious remedies for the 
primary benefit of blacks (both free blacks and the newly freedmen), 
as well as their white supporters who were singled out for harass­
ment and oppression by the dominant white majority within several 
States. See generally Dimond, Strict Construction and Judicial Re­
view of Racial Discrimination Under the Equal Protection Clause, 
80 Mich. L. Rev. 462 (1982) ; Schnapper, Affirmative Action and 
the Legislative History of the Fourteenth Amendment, 71 Va. L.



30
in admitting a racially diverse student body,28 it would 
seem that a local school board has at least as compelling 
an interest in attempting to secure a racially diverse 
faculty. Especially in the face of possible prior discrim-

Eev. ------- (June, 1985, forthcoming). This is hardly coincidental,
for one of the chief purposes of the fourteenth amendment was to 
constitutionalize the remedies which the Thirty-Ninth Congress had 
already adopted in implementing the thirteenth amendment. Id. 
See also Briefs of Amici Curiae NAACP Legal Defense & Educa­
tional Fund, Inc.; National Council o f Black Lawyers, et al.

In Bratton v. Detroit, 704 F.2d 878, 886, modified, 712 F.2d 222 
(6th Cir. 1983), cert, denied, 104 S. Ct. 703 (1984) and Detroit 
Police Officers Association v. Young, 608 F.2d 671, 697 (6th Cir. 
1979), cert, denied, 452 U.S. 938 (1981), the Sixth Circuit noted that 
a reverse discrimination claim brought by a white person 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 dis­
crimination. A different analysis must be made when the claimants 
are not members of a class historically subjected to discrimination. 
When claims are brought by members of a group formerly subjected 
to discrimination, the case moves with the grain of the Constitu­
tion and national policy. A suit which seeks to prevent public action 
designed to alleviate the effects of past discrimination moves against 
the grain.”  See generally Sandalow, Judicial Protection of Minori­
ties, 75 Mich. L. Rev. 1162 (1977) ; J. Ely, Democracy and Distrust 
(1980); Ely, The Constitutionality o f Reverse Discrimination, 41 
U. Chi. L. Rev. 723, 733 (1974) ; Dimond & Sperling, Of Cultural 
Determinism and the Limits of Law, 83 Mich. L. Rev. 3301, 3316-20 
(1985).

Article XII does move with the grain of the Constitution, while 
the government’s approach goes against that grain.

23 Bakke, 438 U.S. at 314 (Opinion of Powell, J.) ; see also David­
son, Davidson & Howard, The Riffing of Brown: De-lntegrating 
Public School Faculties, 17 Harv. C.R.-C.L.L. Rev. 443, 480 482 
(1982) :

The integration of faculties serves several purposes, only one 
of which is to provide employment to minority teachers who 
have been discriminated against in the past. Minority teachers 
provide diverse experience and approaches that benefit all stu­
dents. More importantly, they provide a presence in the class­
room that instills a sense o f pride and self-worth in black school 
children and offers a more positive image of blacks to white



31
ination, the parties to the collective bargaining agree­
ment had sound reasons to believe there was a value in 
recruiting and maintaining qualified minority teachers 
to benefit all students and to enrich the entire faculty.

The affirmative steps to recruit and retain minority 
teachers set out in Article VII of the Jackson Public 
Schools labor contract are a legitimate response to the 
history of chronic underrepresentation of minority teach­
ers in a system with a history of previously segregated 
schools and are educationally sound. Indeed, as we have 
suggested, affirmative action designed to increase the 
proportion of minority teachers in a school district is 
quite different, and arguably substantially more justified, 
than affirmative action in other employment contexts.

II. THE LAY-OFF PROVISION ADOPTED THROUGH 
THE COLLECTIVE BARGAINING PROCESS TO 
IMPLEMENT THE BOARD’S INTEGRATION PRO­
GRAM IS REASONABLE AND PROPERLY TAI­
LORED. IT DOES NOT VIOLATE THE FOUR­
TEENTH AMENDMENT BECAUSE IT DISTRIB­
UTES LAY-OFF BURDENS EQUITABLY WITHOUT 
SINGLING OUT ANY TEACHER FOR STIGMATIC 
TREATMENT ON ACCOUNT OF RACE.

In Weber, Fullilove, and Firefighters Local Union No. 
178^ v. Stotts, 104 S. Ct. 2576 (1984), this Court has 
expressed concern that affirmative action plans should be 
properly tailored. As Chief Justice Burger observed in 
Fullilove, 448 U.S. 484, however, “ It is not a constitu­
tional defect in this [affirmative action] program that 
it may disappoint the expectations of nonminority firms. 
When effectuating a limited and properly tailored remedy 
to cure the effects of prior discrimination, such 'a shar­
ing of the burden’ by innocent parties is not impermis­
sible.”

students as well. Together, these effects provide an education 
which is truly equal to minority school children. . . .  In the 
crucial area of education the interests of school children must 
be paramount if true equality is to be achieved.



32

The provisions of the collective bargaining agreement 
at issue in this case cannot be objected to on constitu­
tional or equitable grounds relating to third parties. 
First, Petitioners have had substantial opportunity to 
have their interest represented during the collective bar­
gaining process. Moreover, because the union itself vol­
untarily modified the seniority system, no teacher can 
claim to have had a legitimate expectation upset. Finally, 
the relevant provision is tailored to achieve the school 
board’s important interest in integrating its faculty 
through a mechanism which distributes the burdens of 
lay-off equitably among minority and non-minority 
teachers.

A. Unlike S to tts , In The Case At Bar, Petitioners And 
Other Third Parties Had Repeated Opportunities To 
Have Their Interests Represented.

It is important to note that the duty of fair represen­
tation in collective bargaining parallels the reach of the 
fourteenth amendment to forbid actions that are “ arbi­
trary, discriminatory, or in bad faith” or seek to pur­
posefully harm individuals on account of their race. Com­
pare Vaca v. Sipes, 386 U.S. 171, 190 (1967) with 
Washington v. Davis, 426 U.S. 229 (1976). Petitioners, 
however, never have challenged the union’s adoption of 
Article XII through procedures established under the 
National Labor Relations Act. The labor agreement also 
has, as part of its structure, a grievance procedure with 
mandatory arbitration, but Petitioners did not make use 
of that remedy, nor did they attempt through their own 
union constitution to seek redress.

Petitioners have had repeated opportunities to mount 
such a challenge to Article XII. Despite the repeated 
negotiations, however, the parties closest to the factual 
situation in the local school district have left the lan­
guage intact and have six times ratified contracts in­



33
eluding the Article XII provision.24 At all times perti­
nent thereto, including the last agreement ratified fol­
lowing the grant of certiorari by this Court, the white 
teachers voting for ratification, all being members of the 
Jackson Education Association, constituted from 80% to 
86% of the union’s membership.

The Jackson Board believes that the parties at the bar­
gaining table are the parties most responsible for de­
termining if the language contained in the Labor Agree­
ment, which is the subject matter of this suit, is a 
reasonable response to past discrimination and is edu­
cationally justified. The decision was made by experi­
enced negotiators and ratified by the teachers. The con­
cept arose bilaterally and was not unilaterally imposed 
by the Board.

The continued opportunity of Petitioners to have their 
interests represented either through administrative pro­
ceedings or the labor grievance process makes the equita­
ble considerations concerning third parties here clearly 
distinguishable from those in Stotts where, as Justice 
White noted, ‘ ‘neither the Union nor the nonminority 
employees were parties to the suit when the . . . decree 
was entered.”  104 S. Ct. at 2584. Justice O’Connor ex­
pressed similar concerns in her concurring opinion:

“ Absent a judicial determination . . . the company 
. . . cannot alter the collective-bargaining agreement 
without the Union’s consent.”  W.R. Grace & Co. v. 
Local 751, 461 U .S .-------, ------- (1983).
Thus, if  innocent employees are to be made to make 
any sacrifices in the final consent decree, they must 
he represented and have had full participation rights 
in the negotiation process.

24 September 1, 1973— August 31,1975 
September 1,1975— August 31, 1977 
September 1, 1977— August 31, 1980 
September 1, 1980— August 31, 1983 
September 1,1983— August 31, 1985 
September 1,1985— August 28,1988



34

104 S. Ct. at 2590 n.3 (emphasis supplied). The concerns 
noted by Justices O’Connor and White in Stotts regard­
ing the rights of white employees who were not repre­
sented are thus wholly lacking in this case.

B. Because Article X II Involved The Voluntary Modi­
fication Of A Seniority System By The Union That 
Created The Prior Seniority System, The Legitimate 
Expectations Of Third Parties Have Not Been 
Upset.

In Weber, Stotts, and Fullilove, this Court evaluated 
the equities of an affirmative action program to insure 
that the legitimate expectations of innocent third parties 
were not being unnecessarily trammeled. In the case at 
hand, no evidence has ever been presented to suggest that 
the legitimate expectations of third parties have been 
upset. Neither any of the Petitioners, nor any other 
union member, has a legitimate expectation that the 
seniority provisions created through the collective bar­
gaining process will not be modified through that same 
bargaining process. It is widely accepted that:

[S] eniority rights are the creature of collective 
bargaining . . . what the contract confers, a later 
contract, validly made, may take away . . . .  The 
notion that rights any employees . . . had under [a] 
contract that terminated were vested or in any other 
fashion sacrosanct is devoid of support in Federal 
labor law or contract law. . . . Seniority is not only 
born from the collective bargaining agreement: it 
does not exist apart from that contract.

Cooper v. General Motors, 651 F.2d 249, 249-51 (5th 
Cir. 1981).

In the same vein, this Court has ruled unanimously 
that it was entirely proper for a union to modify the 
seniority provisions of a collective bargaining agreement 
to give enhanced seniority to union chairpersons even 
though it caused the lay-off of some workers with less 
time at the plant. Aeronautical Industrial District Lodge



35

727 v. Campbell, 337 U.S. 521 (1949). Plaintiffs in that 
case had tried to argue that Section 8 of the Selective 
Training and Service Act of 1940 disallowed such senior­
ity alterations because the Act gave veterans seniority at 
the workplace they had left for the time during which 
they were in the military service. This Court flatly re­
jected the argument because unions always have the 
right to alter seniority provisions in good faith and “ the 
temporary layoff of a veteran while a non-veteran chair­
man with less time at the plant is retained, is wholly 
unrelated to the veteran’s absence in the service,” 337 
U.S. at 528-29. The Court stated, id. at 526:

Barring legislation not here involved, seniority rights 
derive their scope and significance from union con­
tracts, confined, as they almost exclusively are, to 
unionized industry. See Trailmobile Co. v. Whirls, 
331 U.S. 40, 53 n.21. There are great variations in 
the use of the seniority principle through collective 
bargaining bearing on the time when seniority be­
gins, determination of the units subject to the same 
seniority, and the consequences which flow from 
seniority.25

25 See also Local 900 IUE v. NLRB, 727 F.2d 1184, 1189 (D.C. 
Cir. 1984) (permissible under NLRA to modify seniority provisions 
to add “ layoff-and-recall superseniority” for on-the-job union offi­
cials) ; Johnson v. Airline Pilots in Service of Northwest Airlines, 
650 F.2d 133, 136-37 (8th Cir.) (unions protected from com­
plaints that timing of strikes damaged seniority and recall rights of 
some members), cert, denied, 454 U.S. 1063 (1981); Goslowski v. 
Penn Central Transportation Company, 545 F. Supp. 337 (W.D. Pa. 
1982) (new contracts that caused “ diminution of seniority rights” 
permissible when two seniority lists “ dovetailed” ) , aff’d mem., 707 
F.2d 1401 (3d Cir. 1983); Smith v. B & O Railroad Company, 485 
F. Supp. 1026, 1029 (D. Md. 1980) (merging seniority lists per­
missible even when it gives greater seniority rights to workers “ with 
substantially fewer years of service” “ [a]bsent a showing of fraud 
or hostile motivation” ) ; Deboles v. Trans World Airlines, Inc., 552 
F.2d 1005, 1014 (3d Cir.) ( “ [Sjeniority differences and seniority 
adjustments among employee groups . . . are within the union’s dis­
cretion and judgment, so long as the seniority disadvantage is not



36

In Ford Motor Company v. Huffman, 345 U.S. 330 
(1953), this Court unanimously held that in light of the 
broad discretion given to collective bargaining agents in 
devising and modifying seniority provisions, 345 U.S. at 
339, and the Congressionally declared policy that “ em­
ployees who left their private civilian employment to 
enter military service should receive seniority credit,” 
id., it was legitimate for employer and union bargaining 
agents to go beyond statutory provisions in granting 
veterans seniority credit for pre-employment military 
service. Although “ members of [the plaintiff] class all 
ha[d] been laid off or furloughed from their respective 
employments at times and for periods when they would 
not have been so laid off or furloughed except for the 
provisions complained of in the collective bargaining 
agreements,”  the Court approved the seniority modifica­
tion because it was reasonable and did not indicate that 
the union had failed to “ make an honest effort to serve 
the interests of all those members without hostility to 
any.” 345 U.S. at 337.

In approving the seniority modification in Huffman, 
the Court recognized the impossibility of devising vital 
provisions in a collective bargaining agreement that 
would not fall more harshly on some parties:

The complete satisfaction of all who are represented 
is hardly to be expected. A wide range of reason­
ableness must be allowed a statutory bargaining rep­
resentative in serving the unit it represents, subject 
always to complete good faith and honesty of pur­
pose in the exercise of its discretion.

345 U.S. at 338.
The Court in Huffman clearly did not intend to limit 

its approval to those situations where the modification of 
seniority was sought only to give preferences to military 
veterans: * *

the result of arbitrary reasons . . . [and] where the distinctions 
were found to fall within the range of reasonableness” ), cert, denied,
434 U.S. 837 (1977).



37
It is not necessary to define here the limit to which 
a collective-bargaining representative may go in ac­
cepting proposals to promote the long-range social or 
economic welfare of those it represents. Nothing in 
the National Labor Relations Act, as amended, so 
limits the vision and action of a bargaining repre­
sentative that it must disregard public policy and 
national security. Nor does anything in the Act com­
pel a bargaining representative to limit seniority 
clauses solely to the relative length of employment 
of the respective employees.

345 U.S. at 342.26 More recently, this Court expressly 
ruled that “ [t]he elimination of discrimination and its 
vestiges is an appropriate subject of bargaining [under 
the N LRA].”  Emporium Capwell v. Community Organi­
zation, 420 U.S. 50, 69 (1975) (emphasis supplied).

Where a labor organization and an employer have 
sought voluntarily to adopt provisions to address such 
lingering vestiges, greater latitude has been given by 
courts than when a court-imposed remedy is at stake. 
For example, in Franks v. Bowman Transportation Com­
pany, 424 U.S. 747 (1976), the Court not only approved 
court-ordered remedies under Title VII which impinged 
on the seniority interests of third parties 27 because “ em- 28

28 In rejecting the claim of a white railway employee that senior­
ity provisions negotiated to benefit black employees violated his 
right to equal treatment by the labor organization, the court in 
Pellicer v. Brotherhood of Railway & Steamship Clerks, 217 F.2d 
205, 207 (5th Cir. 1954), cert, denied, 349 U.S. 912 (1955), re­
marked, quoting the trial court:

It would indeed “ turn the blade inward”  were this Court to hold 
invalid and unlawful that which appears on the face of the 
complaint and attached exhibits to be a good faith effort on 
the part o f the Brotherhood and Express Company to com­
ply with the announcements of the Supreme Court in the racial 
discrimination cases.

37 While Petitioners (Br. at 11) and the Solicitor General (U.S. 
Br. at 28) both express a concern for the legitimate expectations 
of innocent parties, both also fail to mention that unlike in Stotts,



38

ployee expectations arising from a seniority system agree­
ment may be modified by statutes furthering a strong 
public policy interest,”  but it also emphasized:

The Court has also held that a collective-bargaining 
agreement may go further, enhancing the seniority 
status of certain employees for purposes of further­
ing public policy interests beyond what is required 
by statute, even though this will to some extent be 
detrimental to the expectations acquired by other 
employees under the previous seniority agreement. 
Ford Motor Company v. Huffman, 345 U.S. 330 
(1953). And the ability of the union and employer 
voluntarily to modify the seniority system to the end 
of ameliorating the effects of past racial discrimina­
tion, a national policy objective of the “highest pri­
ority,”  is certainly no less than in other areas of 
public policy interests,

424 U.S. at 778-79. See also Weber, 443 U.S. at 204-08.* 28 
The Weber Court also cited Albemarle Paper Company v.

the modification of the seniority system in this case was volun­
tarily bargained and not court imposed; and that unlike in Oliver 
v. Kalamazoo Board of Education, 706 F.2d 757 (6th Cir. 1983), the 
teachers’ union here voluntarily agreed to the lay-off provision and 
supported the Jackson Board of Education in this case. See Brief 
Amicus Curiae o f the Jackson Education Association.

28 The facts in the case at bar are similar to those dealt with by 
this Court in Weber. The controversy there arose from the provi­
sion of a collective bargaining agreement between the United Steel­
workers of America and Kaiser Corporation, under which 50 per 
cent o f the openings in craft training programs were reserved for 
blacks. Prior to this agreement, job bidding was according to strict 
seniority and had the impact of precluding minority promotion and 
transfer into more desirable job classifications. The plan negotiated 
in Weber is functionally similar to the lay-off provisions negotiated 
between the Jackson School Board and the Jackson Education As­
sociation in the present case. The sole difference is that the Weber 
plan affected employee seniority regarding job bidding, whereas 
the dispute here involves use of seniority to determine the order of 
staff reduction. In both Weber and the present case, there has been



39

Moody, 422 U.S. 405 (1975), in support of voluntary af­
firmative action between employers and unions (443 U.S. 
at 204) :

The very statutory words intended as a spur or 
catalyst to cause “ employers and unions to self­
examine and to self-evaluate their employment prac­
tices. and to endeavor to eliminate, so far as possible, 
the last vestiges of an unfortunate and ignominious 
page in this country’s history,”  Albemarle Paper

a modification of a seniority system to protect minorities, whether 
in the context of job bidding or job retention.

In Weber, the most junior minority employees selected to enter 
the craft program had less seniority than white workers whose bids 
were rejected. Similarly, under the lay-off provisions negotiated 
between the Jackson School Board and the Jackson Education As­
sociation, there would be a retention of minority teachers having 
less seniority than white teachers who would be laid off. Despite 
a somewhat different factual setting in Weber, the underlying prin­
ciple of that case— that seniority rights may be modified to achieve 
goals of equal employment opportunity— has equal force in the case 
at bar.

An essential feature of the Court’s decision in Weber is recogni­
tion of the voluntary actions of employers and unions to combat 
discrimination, as opposed to the imposition of judicial remedies 
when the conduct of parties has been insufficient in achieving the 
goals of equal employment opportunity. “ [SJince the Kaiser-USWA 
plan was adopted voluntarily, we are not concerned with what Title 
VII requires or with what a court might order to remedy a past 
proven violation of the act.” 443 U.S. at 200. In endorsing volun­
tary affirmative action plans, the Court relied upon the legislative 
history of Title VII in concluding that the plan in Weber was con­
sistent with the goal of improved employment opportunity for 
minorities:

Congress’ primary concern in enacting the prohibition against 
racial discrimination in Title VII of the Civil Rights Act of 
1964 was with “ the plight of the Negro in our economy.”  110 
Cong. Rec. 6548 (1964) (remarks of Sen. Humphrey).

443 U.S. at 202.



40

Company v. Moody, 422 U.S. 405, 418 (1975), can­
not be interpreted as an absolute prohibition against 
all private, voluntary, race-conscious affirmative ac­
tion efforts to hasten the elimination of such vestiges.

In the case at bar, the challenged lay-off provision is 
but one of several provisions that have modified past 
seniority rights. The agreement negotiated after recogni­
tion of the Jackson Education Association contained no 
lay-off language; the Board therefore was not constrained 
to follow any particular procedure in selecting teachers 
for lay-off. Inverse seniority order lay-off was adopted in 
the second labor agreement. In 1972 the provision now 
in controversy was added to the contract. A  further mod­
ification in 1979 inserted the concept of certification at 
both the elementary and secondary levels to protect spe­
cial programs and institutional needs. This latter pro­
vision has had more impact on people actually laid off 
than any other change in this history of bargaining be­
tween these parties.

A union has wide discretion to modify the seniority 
provisions to which it has previously agreed, and inas­
much as the elimination of the vestiges of past discrimi­
nation is clearly a compelling national interest29 appro­

29 As the House Report on the 1972 amendments extending Title 
VII coverage to public employers such as the Jackson Board stated:

The problem of employment discrimination is particularly acute 
and has the most deleterious effect in those governmental activi­
ties which are most visible to the minority communities (notably 
education, law enforcement, and the administration of justice) 
with the result that the credibility of the government’s claim to 
represent all the people is equally negated. [Emphasis supplied.]

Discrimination against minorities and women in the field of 
education is as pervasive as discrimination in any other area 
of employment.. . .
The committee feels that discrimination in educational in­
stitutions is especially critical. The committee can not imagine



41

priate in the collective bargaining process, the indirect 
impact felt by some where a union and employer volun­
tarily, and in good faith, seek to overcome the lingering 
effects of past discrimination cannot be claimed to be 
the upsetting of any legitimate expectation or of a vested 
interest.

C. Article XII Is A Necessary Means To Achieve The 
Board Of Education’s Compelling Remedial And 
Educational Interests.

Article XII was an appropriate means to effectuate the 
Jackson Board of Education’s valid and substantial reme­
dial and educational interests in recruiting and retaining 
minority teachers for its school system. Up to approxi­
mately the time period of Brown I, there had never been 
a single black teacher in the Jackson Public Schools. 546 
F. Supp. at 1197. A past Superintendent of the system 
suggested that this resulted from school officials’ deliberate 
policy of not hiring black teachers.30 Of 80 teachers hired 
between 1964, the year that Title VII was enacted (al­

a more sensitive area than educational institutions where the 
Nation’s youth are exposed to a multitude of ideas that will 
strongly influence their future development. To permit dis­
crimination here would, more than in any other area, tend to 
promote misconceptions leading to future patterns of discrimi­
nation. [Emphasis supplied.]

H.R. Rep. No. 92-238, 92d Cong., 1st Sess, 17, 19-20, reprinted in 
Subcomm. on Labor of the Senate Comm, on Labor & Public Wel­
fare, 92d Cong., 2d Sess., Legislative History of the Equal Employ­
ment Opportunity Act of 1972 at 61, 77, 79-80 (Comm Print 1972).
In his separate opinion in Bakke, Justice Blackmun stated:

I suspect that it would be impossible to arrange an affirmative 
action program in a racially neutral way and have it successful. 
To ask that this be so is to demand the impossible. In order 
to get beyond racism, we must first take account of race. There 
is no other way. And in order to treat some persons equally, 
we must treat them differently. We cannot— we dare not— let 
the Equal Protection Clause perpetrate racial supremacy.

438 U.S. at 407.
30 See Read Dep. at 22-23.



42
though it did not then cover public school systems) and 
1966, all were white. See J.A. 68-75 (1981 seniority 
list). By 1969 black teachers constituted only 3.9 per 
cent of the teaching staff. 546 F. Supp. at 1197. In the 
face of violation findings by the Michigan Civil Rights 
Commission concerning both student assignment and 
teacher hiring and assignment, the Jackson Board of Edu­
cation established committees to begin grappling with 
this problem. A subcommittee of the Professional Staff 
Ad Hoc Committee found that minority teachers were 
deterred from working in Jackson because of community 
hostility and housing discrimination. See supra p. 6 n.5.

Under these circumstances, the Jackson Board of Edu­
cation clearly could determine that it had a compelling 
need to actively recruit, hire and retain minority teach­
ers. In the absence of a provision such as Article XII, 
however, any recruitment effort in the face of a declin­
ing student population would be doomed to fail.31 Not 
only would a straight seniority system for layoffs im­
mediately have depleted Jackson of the minority teachers 
it would have just hired,32 but it further would make it

31 While Petitioners cite Fort Bend Independent School District 
v. City of Stafford, 651 F.2d 1133, 1140 (5th Cir. 1981) for the 
proposition that students are only entitled to a “ sustained good 
faith effort to recruit minority faculty members so as to remedy 
the effects of any past discriminatory practices,” simply recruiting 
minority faculty members in the face of declines in student popula­
tion and a straight seniority lay-off system would hardly be con­
sidered a “good faith effort.” As stated by Chief Justice Burger in 
Davis v. Board of School Commissioners of Mobile, 402 U.S. 33, 
37 (1971), “ The measure of any desegregation plan is its effective­
ness.”

32 Petitioners’ suggestion, Pet. Br. at 31 n.27, that Article XII 
was of little effect in 1981, making the difference only between a 
systemwide minority faculty proportion of 11% and one of 13%, 
is misleading and erroneous. Under the collective bargaining agree­
ment as amended in 1979, the Board of Education took certification 
and special class and staffing needs into account in making lay-offs, 
before Article XII came into play. This language protected from



43
impossible to continue to recruit teachers, especially mi­
nority teachers, who would hardly be willing to move 
long distances to Jackson, Michigan where they would 
face an imminent threat of lay-off.

In light, then, of the need to offer new minority fac­
ulty recruits some security, the Jackson Board of Educa­
tion negotiated Article XII at the bargaining table with 
the teachers’ representative as a compromise under which 
both minority and non-minority teachers would be laid 
off so as not to decrease the percentage of minority teach­
ers that existed prior to the reduction in force.88

Lay-offs are inherently painful. As with many eco­
nomic misfortunes, they often disrupt the lives of people 
innocent of any personal wrongdoing. The very business 
of unions, however, is to confront fairly, and compromise 
fairly, the competing interests of all of their members 
concerning such matters when bargaining collectively 
with their employer. Recognizing the impossibility of 
fully satisfying every individual’s interest in matters as 
vital as these, this Court has required only that unions 
and employers not fail to consider individual interests 
for reasons that are invidious, arbitrary, or reflect hos­
tility toward particular individuals or groups of indi­
viduals. Vaca v. Sipes; Ford Motor Company v. Huffman.

lay-off staff members working in bilingual programs, the elementary 
string music program, the painting and decorating class, two of the 
four distributive education teachers, three music teachers, the Latin 
program, and special education. Thus, in the absence of Article 
XII, “ strict seniority”  would not have been followed. In fact, be­
cause of the certification provision o f the contract, in the absence 
of Article XII the number of minority faculty in the school system 
would have been drastically reduced.

133 Petitioners clearly misstate the facts when they contend that 
“ [t]he vast majority of the teachers were opposed to racial prefer­
ences for layoffs,”  Pet. Br. at 7. The response to a school admin­
istrator’s questionnaire on the subject, which provides the basis 
for Petitioners’ contention, was an expression of the view of the 
teachers’ union that the matter was appropriately one to be han­
dled at the bargaining table. See supra pp. 9-10 n.9.



44
When an elected school board and the elected repre­

sentatives of a teachers’ union decide that it is necessary 
to modify seniority provisions to protect, for example, the 
quality of a school system’s music department, such a 
decision may have the incidental impact of harming the 
seniority interests of non-music teachers. Such a collec­
tively bargained-for provision would clearly be permis­
sible because its goal would be to enhance the musical 
education of the students, not to invidiously disadvantage 
non-music teachers. See Personnel Administrator of Mas­
sachusetts v. Feeney, 442 U.S. 256 (1979); Washington 
v. Davis, 426 U.S. 229 (1976).

In this case, the goal of the Jackson Board of Educa­
tion has been to enhance the racial and ethnic diversity 
of its faculty following years of serious minority under­
representation on its staff, caused in part by a history of 
past discrimination. While the accomplishment of this 
worthy goal may have a negative, incidental impact on 
the seniority interests of some non-minority teachers, the 
layoff provision is in no way designed to harm plaintiffs 
because they are white, nor does it have either the pur­
pose or effect of stigmatizing, or implying inadequacy in 
any way, of any of the minority or non-minority teach­
ers who are laid off.34 It is therefore a permissible af­
firmative action measure under the fourteenth amend­
ment.

84 See United Jewish Organizations v. Carey, 430 U.S. 144 (1977). 
In. an opinion joined by Justices Stevens and Rehnquist, Justice 
White stated:

There is no doubt that in preparing the 1974 legislation, the 
State deliberately used race in a purposeful manner. But its 
plan presented no racial slur or stigma with respect to whites 
or any race, and we discern no discrimination violative of the 
Fourteenth Amendment nor any abridgement of the right to 
vote on account of race within the meaning of the Fifteenth 
Amendment.

430 U.S. at 165.



45

III. THE DISTRICT COURT WAS CORRECT IN DENY­
ING PETITIONERS’ MOTION FOR SUMMARY 
JUDGMENT AND CORRECT IN GRANTING THE 
JACKSON BOARD OF EDUCATION’S MOTION 
FOR SUMMARY JUDGMENT.

In the procedural posture in which this case arose, the 
District Court was correct in denying Petitioners’ motion 
for summary judgment under Rule 56 and in granting 
the Jackson Board of Education’s summary judgment 
motion.

A. Petitioners’ Summary Judgment Motion.

Petitioners could only have been entitled to summary 
judgment at this early stage in the litigation if no genu­
ine issue of fact had existed concerning the constitu­
tionality of the lay-off provision when the underlying facts 
were viewed in the light most favorable to the Jackson 
Board of Education. In order for the District Court 
properly to have granted petitioners’ motion for sum­
mary judgment, the court would have had to hold, as a 
matter of law, that all voluntary, collectively bargained, 
race-conscious provisions adopted by a local school board 
amount to per se violations of the Constitution— regard­
less of the purpose and state interest motivating the 
voluntary adoption of the provision.

To have made such a ruling, the district court would 
have had to simply ignore the several decisions in which 
this Court based its judgments on the facts, context, 
purpose and governmental importance of the disputed pro­
gram. See Mississippi University for Women v. Hogan, 
458 U.S. 718 (1982) ; Minnick v. California Department 
of Corrections, 452 U.S. 105 (1981) ; Fullilove; Bakke.

Petitioners now make several factual allegations which, 
if they had been proved at trial, might have lent support 
to their claims. However, these assertions are only con­



46
tentions: None of them was supported below by the re­
quired affidavits or other materials, none of them has 
any basis in the record before this Court, and none was 
ever agreed to by the Jackson Board. In fact, Petitioners 
never articulated a single historical fact concerning the 
origins of the lay-off provision, even in the 1%-page 
statement of facts contained in their District Court brief 
supporting their motion for summary judgment. Since, 
as we have shown above, Petitioners’ categorical legal 
argument against race-conscious action in the absence of 
prior judicial findings is wrong, their mere naked con­
tentions could not provide a basis for prevailing on their 
summary judgment motion, especially since they conceded 
the facts preferred by the Board of Education.

B. Jackson Board Of Education’s Motion For Sum­
mary Judgment.

While the Jackson School Board did not produce affi­
davits detailing the evidence of its own prior discrimina­
tion and its adoption of institutional goals with respect 
to Article XII, the Board did rely, in the District Court, 
on the fact that Petitioners did not dispute such facts but 
only the inferences which could properly be drawn from 
them.36 This understanding was confirmed at the oral 
argument before the district judge.37 Thus, while Peti­
tioners have sought in this Court to portray the lay-off

136 Once Petitioners stipulated to these facts, disposition of the 
Board’s motion was governed by the provision of F.R. Civ. P. 56 (e) 
which states that

When a motion for summary judgment is made and supported 
as provided in this rule, an adverse party may not rest upon the 
mere allegations or denials of his pleading, but his response, 
by affidavits or as otherwise provided in this rule, must set 
forth specific facts showing that there is a genuine issue for 
trial. I f  he does not so respond, summary judgment, if ap­
propriate, shall be entered against him.

87 See supra pp. 2-3 & n.2.



47

provision as a response simply to past generalized so­
cietal discrimination, the Jackson Board of Education, 
the District Court, and the Court of Appeals correctly 
understood that the provision was an integral part of the 
Jackson Board’s voluntary effort to eradicate all vestiges 
of its own past discriminatory conduct and to provide a 
fully integrated system of public schooling.38

At the time the cross-motions were filed at the District 
Court level, the Jackson Board of Education had been 
involved in serious efforts voluntarily to complete the 
integration of its school system for almost a decade. 
This extensive voluntary effort was due in part to a 
desire to avoid the divisiveness and discomfort that comes 
not only from prolonged litigation, but also from having 
to flail oneself publicly by detailing every aspect of one’s 
own wrongdoing. Had it been necessary, however, the 
Jackson Board of Education stood ready to produce addi­
tional evidence of discrimination at a trial.39

38 In the statement of facts contained in the Board’s brief in sup­
port of its summary judgment motion, set forth verbatim supra 
at pp. 3-15, and which District Judge Joiner described as “ not 
disputed by plaintiffs,”  546 F. Supp. at 1197, the grounds for the 
Board of Education’s action with respect to the negotiation and 
adoption of Article XII are explicitly stated:

Various complaints had been filed to the Michigan Civil Rights 
Commission by the Jackson NAACP alleging segregation of 
elementary schools as well as discriminatory treatment o f mi­
norities in staff hiring and placement. Efforts to integrate the 
elementary schools and to set up increased minority hiring 
were prompted in part by these complaints.

The leadership [of the teachers’ union] explained that a staff 
racial mix was educationally sound and that the system needed 
black teachers. It was also noted that the new layoff policy was 
partially designed to correct past discriminatory policies.

Jackson Board of Education Brief in Support of Motion for Sum­
mary Judgment, at 1-5 (emphasis supplied).

39 See id. at 35.



48
The Board of Education believed (as did the District 

Court40 and the Court of Appeals41) that its summary 
judgment motion should be granted because the Jackson 
Board was acting in a remedial context in which race­
conscious educational policies, such as the lay-off provi­
sion, are educationally and constitutionally sound. If 
dispute does exist as to the underlying facts motivating 
the adoption of this provision, the Jackson Board of 
Education still stands ready to produce more detailed 
evidence in a trial on remand.

The Board believes, however, that there must exist an­
other option for a school board which wishes to eradicate 
all vestiges of its own past discrimination besides wait­
ing to be sued or being forced to detail the facts of one’s 
own past discrimination. By taking voluntary action 
once a valid complaint had been filed with the Michigan 
Civil Rights Commission, the Jackson Board of Educa­

40 The District Court noted that “ societal discrimination’’ could 
justify a belief by educators that it is an important and substan­
tial government interest to have black teachers to serve as role 
models for students; but the District Court did not rely solely on 
this justification. Rather, it adopted a “reasonableness”  test from 
Detroit Police Officers Association v. Young, 608 F.2d 671 (6th 
Cir. 1979), cert, denied, 452 U.S. 988 (1981), which asks whether 
the voluntary affirmative action plan is “  ‘substantially related’ to 
the objectives of remedying past discrimination and correcting 
‘substantial’ and ‘chronic’ underrepresentation.”  546 F. Supp. at 
1199-1200. On the basis o f this test, the lay-off provision was 
upheld.

41 The Sixth Circuit found that “ [t]he school board (and the 
bargaining representative of the teachers) have a legitimate inter­
est in curing the past racial isolation of black teachers in the school 
system concerned.”  746 F.2d at 1157 (emphasis supplied). The 
Court of Appeals also stated that “ the Board of Education and its 
bargaining agent had a legitimate interest in the remedial plan 
which was jointly adopted. Here the school board’s interests in 
eliminating historic discrimination, promoting racial harmony in 
the community and providing role models for minority students 
are among the justifications available to support the layoff pro­
visions.”  Id. (emphasis supplied).



49
tion avoided prolonged litigation, substantial claims for 
back pay, and court-imposed remedies, and instead al­
lowed the members of its own community to work out the 
appropriate solutions by involving citizen committees, 
using collective bargaining and compromise, and resting 
upon the forthright commitment of a duly elected local 
board of education. Considering the shameful legacy of 
recalcitrance that followed Brown II, and this Court’s 
traditional deference to the decisions of local school au­
thorities, the good-faith, voluntary use of a reasonable 
and properly tailored race-conscious provision by a school 
board should not be overturned or second-guessed where 
that school board presents and acts upon a plausible 
showing o f past discrimination.42

CONCLUSION
WHEREFORE, for the foregoing reasons, Respondents 

pray that the judgment below be affirmed.
Respectfully submitted,

Jerome A. Susskind  
Jerome A. Su sskind , P.C.
2530 Spring Arbor Road 
Jackson, Michigan 49203-3696 
(517) 787-5340

August 23,1985 Attorney for Respondents *

42 In April, 1972, the Jackson Board o f Education circulated the 
following statement to parents to explain its reasons for taking 
voluntary desegregation action:

Waiting for what appears the inevitable only flames the pas­
sions and contributes to the difficulties of an orderly transition 
from a segregated to a desegregated school system. Firmly 
established legal precedents mandate a change. Many citizens 
know this to be true. Waiting for a court order emphasizes to 
many that we are quite willing to disobey the law until the court 
orders us not to disobey the law.

Plaintiffs’ Exhibit No. 8, Jackson I, question 4.
* Respondents’ counsel wishes to acknowledge the substantial 

assistance of Gene Sperling, a 1985 graduate o f Yale Law School, 
in the preparation of this brief.