South Bend Community School Corp v Andrews Appendix to Petition for Writ of Certiorari

    No.

(3ltt 'Cfye

Supreme Court of tlje J^uttrb J^tatrs 

(©rioter Cerm, X9H7

SOUTH BEND
COMMUNITY SCHOOL CORPORATION,

Petitioner,
v.

ELMER BRITTON, et al.
Respondents.

SOUTH BEND
COMMUNITY SCHOOL CORPORATION, et al.,

Petitioners,

JULIE ANDREWS, et al.
Respondents.

PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE SEVENTH CIRCUIT

Stanley C. Fickle 
Counsel o f Record

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

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

August 14, 1987 Counsel for Petitioners

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



1

QUESTIONS PRESENTED

1. Whether (1) a public school district has a com­
pelling or important interest in enhancing the quality of 
education for all its students by providing a racially diverse 
faculty and, if so, whether (2) a temporary no-minority lay­
off provision in the school district’s collective bargaining 
agreement is a per se violation of the fourteenth amend­
ment or Title VII simply because it was adopted to preserve 
the gains made pursuant to an affirmative action plan hav­
ing an unrealized goal of raising the percentage of black 
teachers to approximate the percentage of black students?

2. Whether an affirmative action provision in a col­
lective bargaining agreement of a public school district is 
unconstitutional per se or violates Title VII solely because 
it provides that no minority will be laid off, notwithstand­
ing:
(a) The extent of past employment and other racial dis­

crimination by the employer;
Ob) Delay in remedying such discrimination;
(c) The limited term of the agreement;
(d) Protections afforded to laid-off nonminority teachers, 

such as permanent substitute positions and preferen­
tial recall and substitution rights;

(e) Approval of the collective bargaining agreement by the 
teachers’ union, a majority of whom are white;

(f) The effect of the provision was merely to raise the 
percentage of black teachers in the school district from 
13.0% to 13.8% when the percentage of black students 
was 25%; and

(g) The effect of the provision was that, out of over 1,200 
white teachers, only 13 to 16 were laid off who would 
not have been laid off on the basis of strict seniority?



11

3. Where this Court rendered its opinion in Wygant 
v. Jackson Board of Education between the date of the 
district court’s decision and the decision of the Court of 
Appeals en banc, whether the district court as the trier 
of fact should determine in the first instance whether the 
affirmative action layoff provision at issue serves a com­
pelling or important purpose and is narrowly tailored or 
substantially related to achieving that purpose within the 
meaning of Wygant?



Ill
LIST OF PARTIES AND RULE 28.1 LIST

The parties to Cause No. S82-283 in the district court 
were the petitioner, South Bend Community School Cor­
poration, and the respondents, Elmer Britton and Janet 
Kochanowski, individually and on behalf of all other sim­
ilarly situated permanent public school teachers employed 
by the petitioner.

The parties to Cause No. S82-485 in the district court 
were the petitioners, South Bend Community School Cor­
poration, Rev. C. Marcus Engdahl, Charles F. Lennon, Jr., 
Trudy McManama, Bruce A. McMillen, Richard Kapiszka, 
and Carol B. Loeffler,* acting in their official capacity as 
members of the Board of Trustees of the South Bend Com­
munity School Corporation, and the following respondents:

Julie Andrews John W. Berta
Rosemarie Bradford Anita Golba
Barbara Gottlick Helen Keller
Cleora Kelsch Sandra J. Koch Bolka
Janet L. Kochanowski Kenneth Marosz
Margaret McAllister Linda Newcomer
Mary Pajakowski John Panos
Sue Paulin Gordon Pblsgrove
Kathleen Renz Dora L. Riddle
Perry B. Scott Lynn D. Sill
Dale L. Strombeck Judith E. Taelman
Joan Tetzlaff Kathy Troester
John P. Wibbens Alan S. Bell
Wallace Boocher Kathryn A. Britton
Larry L. Edler J. A. Garretsom
Sue Hill Bonita Hoover

* The individuals named in the text were automatically substi­
tuted under Fed. R. Civ. P. 25(d)(1) and Supreme Court Rule 
40.3 for the following named defendants: Hollis E. Hughes, 
Jr., William L. Wilson, Loretta Jacobson, Oscar T. Brookins, 
Anthony V . Luber, Eileen T. Bender, and Donald W . Yates.



IV

Edward J. Linetty 
Richard B. Rajter 
Patricia A. Toth 
Bonita Ujdak

Jean Meiss 
Richard Tomaszewski 
Terry Tulchinsky 
Elmer Britton

South Bend Community School Corporation has no 
parent companies, subsidiaries, or affiliates.



V

TABLE OF CONTENTS

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

LIST OF PARTIES AND RULE 28.1 LIST.......................iii

OPINIONS BELOW........................................................... 1

JURISDICTION.................................................................... 2

CONSTITUTIONAL AND STATUTORY PROVI­
SIONS INVOLVED................................................................3

STATEMENT OF THE CASE............................................. 3

REASONS FOR GRANTING THE WRIT.....................  10

I. Summary Of Reasons...............................................  10

II. The Decision Below Holding The School Cor­
poration’s Affirmative Action Layoff Provision 
Unconstitutional Per Se Raises Important And 
Unresolved Issues.................................................... 11

HI. The Decision Below Conflicts With Decisions Of
This Court And Of Other Circuits..........................  18

A. The Decision Below Conflicts In Principle
With Bakke and Wygant...................................  18

B. The Per Se Analysis Developed By The Con­
curring Opinion Below Conflicts In Principle 
With Several Affirmative Action Decisions
Of This C ou rt.................................................... 20

C. The Court of Appeals’ Failure to Remand Is
Inconsistent With Decisions Of This Court 
And At Least Two Courts of Appeals..............  25

CONCLUSION.....................................................................29

Page



APPENDIX (Separately Bound)

1. Constitutional and Statutory Provisions In­
volved .........................................................................  la

2. Judgment of Seventh Circuit Court of Appeals
En Banc....................................................................... 2a

3. Opinion of Seventh Circuit Court of Appeals En
B an c .............................................................................. 4a

4. Order Granting Rehearing En Banc and Vacat­
ing Panel Opinion....................................................... 43a

5. Judgment of Panel of Seventh Circuit Court of
Appeals........................................................................45a

6. Opinion of Panel of Seventh Circuit Court of
Appeals........................................................................46a

7. Judgment of District Court........................................ 98a

8. Opinion of District C ourt...........................................99a

9. Resolution 1020........................................................118a

10. Consent Decree in United States v. South Bend
Community School Corporation............................... 121a

11. Article XXIII of 1980-1983 Collective Bargain­
ing Agreement.......................................................... 126a

vi

Page



V ll

TABLE OF AUTHORITIES
Cases: Page

Brown v. Weinberger, 417 F. Supp. 1215 
(D.D.C. 1976).................................................................... 5

Green v. County School Board, 391 U.S. 430 (1968). . . .  20

Johnson v. Transportation Agency, Santa Clara,
California,__ U.S------ , 107 S. Ct. 1442
(1987)........................................................... 16,21,25,27

Lehman v. Trout, 465 U.S. 1056 (1984) (mem.). . . .  18, 25

Liao v. Dean, 658 F. Supp. 1554 (N.D. Ala. 1987). . 16-17

LeDoux v. District o f Columbia, 820 F.2d 1293 
(D.C. Cir. 1987).............................................................  26

Long v. City o f Saginaw, No. 85-1352, slip op.
(6th Cir. Oct. 20, 1986)............................................. 26-27

Miree v. DeKalb County, 443 U.S. 25 (1977)...................17

NAACP v. Detroit Police Officers Ass’n, 125 L.R.R.M. 
(BNA) 2784 (6th Cir. 1987)...................................... 14, 17

Oil Workers’ Union v. Mobil Oil Corp., 426 U.S. 407 
(1976).........................................................................  17-18

Pullman-Standard v. Swint, 456 U.S. 263 (1982). . . 18, 25

Regents o f the University o f California v. Bakke, 438 
U.S. 265 (1978)........................................................  18-19

Rinaldi v. United States, 434 U.S. 22 (1977)...................17

Smith v. Harvey, No. 84-212-Civ-T-13, slip op.
(M.D. Fla. Oct. 3, 1986)..............................................  24

United States v. Paradise, 480 U.S___ , 107 S. Ct.
1053 (1987) 21-24



vm

United Steelworkers o f America v. Weber, 443 U.S.

Page

193 (1979).................................................................. 16, 21

Wygant v. Jackson Board o f Education, 476 U.S___ ,
106 S. Ct. 1842 (1986).......................................... passim

Constitutional and Statutory Provisions:

U.S. Const, amend. XTV, § 1 ............................................. 3

42 U.S.C. § 2000e et seq................................................... 2, 3

42 U.S.C. §§ 1981, 1982, 1983, and 2000e et seq...........2, 3

28 U.S.C. §§ 1331 and 1343(a)(3) and (4 ) ..................... 2, 3

Miscellaneous:

34 C.F.R. P&rt 100, App. B. at 337 (1986)........................14

Stewart, Affirmative Action Barely Upheld, 72 A.B.A.
J. 44 (Dec. 1, 1986)......................................................  22

Choper, Continued Uncertainty As To The Con­
stitutionality Of Remedial Racial Classifica­
tions: Identifying The Pieces Of The Puzzle, 72 
Iowa L. Rev. 255 (1987)..........................................  12, 22

Kandel, The Limits o f Wygant v. Jackson Board of 
Education, 12 Empl. Rel. L.J. 289 (1986)..................... 12



No.

(31 n 'SI \\t
Jiuprrrttr Court of tf|t J^uttrh Jiiatrs  

(©tinker Cerm, 19 87

SOUTH BEND
COMMUNITY SCHOOL CORPORATION,

Petitioner,
v.

ELMER BRITTON, et al.,
Respondents.

SOUTH BEND
COMMUNITY SCHOOL CORPORATION, et al.,

Petitioners,
v.

JULIE ANDREWS, et al.,
Respondents.

PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE SEVENTH CIRCUIT

OPINIONS BELOW
The en banc opinion of the Court of Appeals for the 

Seventh Circuit is reported at 819 F.2d 766 and is reprinted 
in the accompanying Appendix to Petition for a Writ of 
Certiorari to the Court of Appeals for the Seventh Circuit 
at pp. 4a-42a (hereinafter "App.”).

The panel opinion of the Court of Appeals for the Sev­



2

enth Circuit is reported at 775 F.2d 794 and is reprinted 
in the Appendix at pp. 46a-97a.

The opinion of the United States District Court for the 
Northern District of Indiana is reported at 593 F. Supp. 
1223 and is reprinted in the Appendix at pp. 99a-117a.

JURISDICTION
In Cause No. S82-283, the plaintiffs filed a complaint 

in the United States District Court for the Northern Dis­
trict of Indiana alleging that the South Bend Community 
School Corporation had laid them off on the basis of their 
race in violation of 42 U.S.C. § § 1981, 1982 1983, and 
2000e et seq. The plaintiffs in that case invoked jurisdic­
tion under 28 U.S.C. § § 1331 and 1343(a)(4). In Cause No. 
S82-485, the plaintiffs, relying upon the same federal con­
stitutional and statutory provisions as well as the Indiana 
Constitution and Teacher Tenure Act, filed a complaint in 
the Circuit Court of St. Joseph County, Indiana, against 
the School Corporation and certain members of its Board 
of Trustees in their official capacity (sometimes referred to 
collectively as the "School Corporation”). Invoking juris­
diction under 28 U.S.C. § § 1331 and 1343(a)(3), the School 
Corporation removed the state court complaint to the dis­
trict court. On November 2,1982, the district court consol­
idated the cases for all purposes. After a bench trial, the 
district court entered judgment in favor of the School Cor­
poration on the plaintiffs’ federal law claims and dismissed 
the plaintiffs’ state law claims without prejudice. App. at 
p. 98a.

On October 21, 1985, the Court of Appeals for the 
Seventh Circuit affirmed the judgment of the district court. 
App. at p. 46a. The plaintiffs sought rehearing en banc, 
which was granted on February 12, 1986. App. at p. 43a. 
On May 18, 1987, the Seventh Circuit en banc reversed the 
judgment of the district court and remanded the case to the 
district court for a determination of the damages or other 
relief to which the plaintiffs may be entitled. App. at 2a,



3

4a-42a. The last day for filing this petition was August 17, 
1987.

The jurisdiction of this Court to review the judgment of 
the Seventh Circuit is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED

The questions presented in this case involve section 
one of the fourteenth amendment and Title VII of the Civil 
Rights Act of 1964, 42 U.S.C. § 2000e et seq. Those provi­
sions are reprinted in the Appendix at p. la.

STATEMENT OF THE CASE
The complaints in Cause Nos. S82-283 and S82-485 

alleged that the plaintiffs had been laid off because of 
their race in violation of the fourteenth amendment and 42 
U.S.C. § § 1981,1982,1983, and 2000e. The complaint filed 
in S82-283, and a petition for removal of the state court 
complaint in S82-485, invoked jurisdiction under Title VII 
of the Civil Rights Act of 1964, as amended by the Equal 
Employment Opportunity Act of 1972, 42 U.S.C. § 2000e 
et seq., 28 U.S.C. § 1331 (general federal question jurisdic­
tion), and 28 U.S.C. § 1343(a)(3) and (4) (denial of civil 
rights).

Confronted with budgetary constraints and declining 
pupil enrollment, on June 17, 1982, the School Corpo­
ration laid off 188 teachers, including the 41 plaintiffs. 
The School Corporation conducted the layoffs pursuant to 
the 1980-83 collective bargaining agreement (the "CBA”) 
between itself and the teachers’ union, the NEA-South 
Bend. Article XXIII, § 9 of the CBA stated that "in the 
event of a reduction in force, no minority bargaining unit 
employee shall be laid off.” App. at 127a. This provi­
sion had been inserted into the CBA to prevent an antic­
ipated reduction in force from decimating the gains the 
School Corporation had achieved in increasing minority 
representation on its faculty pursuant to an affirmative



4

action program adopted in response to judicial, administra­
tive, and community attacks on its hiring practices. The 
plaintiffs allege that they have more seniority than minor­
ity teachers whom the School Corporation did not layoff 
and that, as a result, their layoff violated the fourteenth 
amendment and certain federal civil rights statutes.

I. Factual Basis For The School Corporation’s
Affirmative Action Plan.
Indiana law officially prescribed segregated schools 

until 1949. For the 1963-64 school year, the minority 
teaching staff in the School Corporation was only 3.5 per- 

- cent of the total teaching staff (Def. Ex. H).

A. Administrative and Judicial Findings of 
Past Discrimination.

Findings of past discrimination by the School Corpora­
tion in the recruitment, hiring, and promotion of minority 
teachers in the record of this case date back to the late 
1960’s. A letter from Kenneth Mines, Director for Region 
V of the Office for Civil Rights ("OCR”) of the United States 
Department of Health, Education and Welfare ("HEW”), 
to the Superintendent of the School Corporation reviewed 
an OCR inspection of the School Corporation’s compliance 
with Title VI conducted in October, 1969. The letter lists 
five areas, including the recruitment of minority teachers, 
where the OCR found evidence of discrimination on the 
part of the School Corporation (Def. Ex. M-6).

In April, 1975, the Superintendent responded to Mr. 
Mines’ concerns in an 18-page letter. After the OCR con­
ducted a second on-site review in 1975 and the parties 
exchanged additional correspondence, the OCR remained 
unsatisfied. Accordingly, by letter dated October 6, 1975, 
the OCR informed the School Corporation that it had deter­
mined the School Corporation was not complying with Title 
VI. The OCR directed the School Corporation to submit a 
plan within 45 days designed to eliminate any vestiges of 
past discrimination (Def. Ex. M-3).



5

After additional negotiations, in March, 1976, the 
OCR again rejected the School Corporation’s justification 
for delay in achieving voluntary compliance. The OCR 
specifically directed the School Corporation to submit a 
plan which included an assurance that it would maintain 
non-discriminatory recruitment, hiring, and assignment 
policies with regard to teachers (Def. Ex. M-2).

On July 20, 1976, Judge Sirica of the United States 
District Court for the District of Columbia granted sum­
mary judgment in favor of certain plaintiffs seeking an 
injunction directing the HEW to commence enforcement 
proceedings against several school districts which the 
HEW had found were not in compliance with Title VI. 
Brown v. Weinberger, 417 F. Supp. 1215, 1223 (D.D.C. 
1976). The School Corporation was among these districts. 
Id. at 1224.

B. The Adoption of Resolution 1020, The 
School Corporation’s Affirmative Action 
Plan.

On December 18, 1978, the Board of Trustees adopted 
Resolution 1020, an affirmative action plan. App. at p. 
118a-120a. The opening section of Resolution 1020 states 
its purpose in the following terms:

The Board of School Trustees of the South Bend 
Community School Corporation are committed to 
quality education for all its students. We believe 
that equal employment and equal promotional 
opportunities for all of its employees will enhance 
that commitment. Public schools reflect a cross 
section of society from all ethnic, socio-economic 
and other phases of the community. To provide in- 
depth education, the schools need to provide in the 
learning environment an opportunity for children 
to experience highly qualified representatives of 
all ethnic groups and cultures as part of their edu­
cation since they need to learn to function in a 
pluralistic world (App. at p. 118a).

In addition to attempting to provide a racially diverse fac­



6

ulty for the educational benefit of the School Corporation’s 
students, Resolution 1020 was designed to eradicate the 
effects of past discrimination in the recruitment, hiring, 
and assignment of minority teachers (Testimony of Hollis 
Hughes, Jr. -  Trial Transcript at 89-96). As a conse­
quence of past discrimination, in late 1978 when the Board 
adopted Resolution 1020, the percentage of black teachers 
employed by the School Corporation was only 10.4 percent, 
while the percentage of blacks in the student body and in 
the community was approximately 22 percent.

The discussions which led to the adoption of Resolution 
1020 occurred at several school board meetings. At a school 
board meeting held on June 18,1978, Ms. Eugenia Braboy, 
in a statement marking the end of her service as a member 
of the Board, asserted that racially identifiable schools still 
existed in the School Corporation. Ms. Braboy moved the 
Board to adopt a resolution setting a five year goal within 
which to adopt and implement a program to reduce the 
racial imbalance in School Corporation (Def. Ex. K-l).

At later board meetings, statistical evidence was pre­
sented portraying the remnants of the prior discrimination 
found by the HEW. For example, Mr. Willie Green, a leader 
of the black community, presented evidence that the per­
centage of blacks in the community was 21.7 percent while 
the percentage of blacks on the teaching staff was 10.4 per­
cent. Mr. Green also informed the Board of five instances 
where qualified blacks were not hired for available teach­
ing positions because of their race (Def. Ex. K-2).

In the three years following the adoption of Resolution 
1020, the School Corporation began to diversify its faculty 
and to eliminate the traces of prior discrimination by hir­
ing a greater percentage of black teachers than it had in 
any prior three-year period. In the twelve-year period prior 
to the adoption of Resolution 1020, the School Corporation 
only increased the percentage of its black teachers by 4.25 
percent. In the three years after the Resolution, the School



7

Corporation increased the percentage of minority teachers 
by 2.6 percent. As a result, the percentage of black teach­
ers increased from 10.4 percent for the 1978-79 school year 
to 13.0 percent for the 1981-82 school year. Nevertheless, 
the percentage of black teachers was still far below the 
percentage of black pupils (25.24 percent) (Def. Ex. E-l).

On February 8, 1980, the United States Department 
of Justice, amicus curiae below in support of the plain­
tiffs, filed a complaint against the School Corporation 
which alleged, in part, that the School Corporation had 
engaged in intentional acts of racial discrimination by hir­
ing, assigning, and promoting faculty and staff members 
on the basis of race. The Attorney General of the United 
States, Benjamin R. Civiletti, certified that he had investi­
gated complaints of discrimination by the parents of minor­
ity children in the School Corporation and that he believed 
the complaints were meritorious. The parties resolved the 
case through the entry of a Consent Order. The Consent 
Order required the School Corporation to continue to pur­
sue the affirmative action hiring policies embodied in Res­
olution 1020. App. at p. 123a.

C. The Adoption of the No Minority Layoff 
Clause, Article XXIII, § 9.

On May 16, 1980, the School Corporation entered into 
the CBA with the NEA-South Bend. Article XXIII, § 9 of 
the CBA provided that in the event of a reduction in force 
"no minority bargaining unit employee shall be laid off.” 
Article XX1H contained other provisions designed to miti­
gate the impact of any layoff upon nonminority teachers. 
Article XXDI, § 4, for example, provided that any teach­
ers laid off during the term of the CBA would be recalled 
first once the School Corporation began rehiring teachers. 
App. at p. 126a. Article XXHI, § 8 provided that teachers 
who had been laid off would be given the first opportunity 
to work as substitute teachers and created 15 permanent 
substitute teacher positions to be filled by laid off teachers



8

according to seniority. Article XXIII, § 8 also gave laid off 
teachers priority for temporary (daily) substitute positions. 
Substitute teachers were paid a daily rate equal to their 
annual salary divided by the number of days in a school 
year. App. at pp. 127a-128a.

During the negotiation of the 1980-83 CBA, the School 
Corporation’s administrative staff and the Board were 
aware that a teacher lay-off might be necessary during 
the term of that agreement (Transcript of Hearing on 
Plaintiff’s Motion for Preliminary Injunction, pp. 131-33; 
Trial Transcript, p. 38). The School Corporation had been 
informed by the HEW, in August, 1975, that layoffs made 
on the basis of strict seniority were discriminatory if pre­
vious hiring practices had been discriminatory (Def. Ex. 
M-4).

The School Corporation’s negotiating team thus pro­
posed the "no minority layoff” provision to ensure that 
the success achieved in affirmatively recruiting minority 
teachers, pursuant to Resolution 1020 and the Consent 
Order, would not be wiped out by a reduction in the teach­
ing force. Article XXIII, § 9 prohibited the layoff of black 
teachers because, as part of a collective bargaining agree­
ment of limited duration, it was extremely unlikely the 
provision would increase the percentage of black teach­
ers beyond the extent reasonably necessary to provide a 
diverse faculty and to eliminate the imbalance between the 
School Corporation’s pupil enrollment and teaching force.

The 1980-83 CBA was presented and explained to the 
School Corporation’s teachers by the NEA-South Bend. 
The teachers ratified the proposed CBA by a substantial 
margin. Officers of the union and of the School Corpora­
tion then signed the CBA. None of the plaintiffs, and no 
other teachers employed by the School Corporation, have 
ever filed a grievance or complaint alleging that the NEA- 
South Bend had not properly represented them in negoti­
ating or explaining the CBA.



Prior to the layoff, the School Corporation employed
I, 255 white teachers (Def. Exs. F and I). Fifteen of the 41 
plaintiffs were not affected by Article XXIII, § 9 because 
they were immediately recalled. Another 10 to 13 of the 
41 plaintiffs were not affected by Article XXIII, § 9 because 
their seniority was so low that they would have been laid 
off on the basis of strict seniority. Thus, at most, 16 plain­
tiffs were affected by Article XXIII, § 9. Unless three of 
those plaintiffs prevail on state law claims for extra senior­
ity, Article XXm , § 9 affected only 13 plaintiffs — slightly 
over one percent of the School Corporation’s white teachers 
at the time of the layoff.

EL Proceedings Below.
As noted above, in 1982 the plaintiffs filed suits 

against the School Corporation alleging that Article XXI-
II, § 9 was unconstitutional and violated 42 U.S.C. §§ 1981, 
1982, 1983 and 2000e et seq. The district court entered an 
opinion and judgment in favor of the School Corporation on 
the plaintiffs’ claims under federal law. The district court 
found that Article XXIII, § 9 was substantially related to 
achieving the important governmental purpose of remedy­
ing prior discrimination. App. at pp. 112a, 116a.

The plaintiffs appealed the district court’s judgment 
to the Court of Appeals for the Seventh Circuit. On 
October 21,1985, a divided panel affirmed the judgment of 
the district court in favor of the School Corporation. The 
majority found overwhelming evidence of past discrimina­
tion to justify the School Corporation’s affirmative action 
plan and the use of Article XXUI, § 9 to preserve the 
fruits of that plan. Analyzing several pertinent factors, the 
majority also found that Article XXIII, § 9 was "essential 
and crucial” to accomplishing its purposes. App. at p. 78a.

On May 18, 1987, the Court of Appeals, by a five to 
four vote, reversed the district court’s judgment. App. at 
pp. 2a-42a. The en banc Court of Appeals issued five sepa­
rate opinions, none of which constituted a majority view.



10

Judge Posner, writing for himself and two other judges, 
held Article XXIH, § 9 unconstitutional because, in his 
view, it was tied to an improper hiring goal. Judges Flaum 
and Bauer, concurring in the judgment, struck down Arti­
cle XXm , § 9 because it prohibited the layoff of minority 
teachers during the three-year term of the CBA.

This Court decided Wygant v. Jackson Board of Educa­
tion between the date of the district court’s opinion in this 
case and the Seventh Circuit’s en banc decision. Unable to 
find that the plaintiffs, who had lost in the district court 
after a trial, had met their burden of proof as a matter of 
law, the four dissenting judges all urged remand for fur­
ther fact-finding and analysis in light of Wygant. Judge 
Cudahy, joined by the other three dissenting judges, noted 
that the "most striking aspect about this case is the kalei­
doscope of legal scenery against which the facts have been 
projected at various times.” App. at p. 27a. He then 
stated that "[bjecause of the extreme fluidity of the law and 
the consequent striking shifts in the relevance of various 
facts, it would be much better practice to remand to the 
fact-finder — the district court — to determine in the first 
instance the disposition of this case in light of [certain] 
recent Supreme Court decisions.” App. at p. 28a.

REASONS FOR GRANTING THE WRIT

I. Summary Of Reasons.
The questions presented by this case are important for 

several reasons. First, one of the questions -  whether the 
School Corporation’s interest in enhancing the quality of 
education for all students by providing a racially diverse 
faculty is sufficiently compelling to warrant affirmative 
action — is one on which this Court has previously expressly 
reserved decision.

Second, as evidenced by the many and varied opinions 
of the closely divided en banc Seventh Circuit, there is an 
urgent need for additional guidance from this Court on the



11

permissible limits of affirmative action in a time of lay­
offs. The vast majority of public school districts have an 
affirmative action plan. They can face the questions pre­
sented in this case every time they experience declining 
pupil enrollment or budgetary constraints. Guidance from 
this Court is critical because school districts can be liable 
to minority teachers if they do not adopt affirmative mea­
sures and to nonminority teachers if they do, but go too 
far. The public has an interest in having known and clear 
standards for determining liability in cases of this nature 
because school districts must satisfy any liability by pass­
ing the liability on to the public or by diverting funds from 
educational purposes.

Finally, the per se analyses employed by the plurality 
and concurring opinions below are inconsistent in approach 
with numerous decisions of this Court in the affirmative 
action area, especially Wygant v. Jackson Board of Educa­
tion and United States v. Paradise. This Court’s decisions 
have rejected a per se approach in favor of a careful bal­
ancing of several factors. In the concurring opinion below, 
one of many factors this Court had identified went from 
being one of the weights in the scale to being dispositive.

II. The Decision Below Holding The School Cor­
poration’s Affirmative Action Layoff Provi­
sion Unconstitutional Per Se Raises Important
And Unresolved Issues.

In Wygant v. Jackson Board o f Education, 476 
U.S___ _ 106 S. Ct. 1842 (1986), the Court granted certio­
rari "to resolve the important issue of the constitutionality 
of race-based layoffs by public employers.” 476 U.S. at — , 
106 S. Ct. at 1846. Although the Court struck down the 
affirmative action layoff measures employed by the Jack- 
son Board of Education, as Justice Marshall noted "the 
Court has left open whether layoffs may be used as an
instrument of remedial action.” 476 U.S. at__ n.7, 106 S.
Ct. at 1867 n.7 (Marshall, J., dissenting). Discussing the



12

Wygant case, Dean Choper referred to affirmative action 
as "one of the most significant and controversial constitu­
tional issues of our time.” Choper, Continued Uncertainty 
As To The Constitutionality Of Remedial Racial Classifica­
tions: Identifying The Pieces Of The Puzzle, 72 Iowa L. Rev. 
255, 255 (1987).

The importance of the questions raised in this case is 
enhanced by the fact that the first question -  whether a 
public school district has a compelling interest in enhanc­
ing the quality of education for all its students by promot­
ing racial diversity among its faculty -  is one on which this 
Court has previously reserved decision. In Wygant, Justice 
O’Connor wrote:

The goal of providing "role-models” discussed by 
the courts below should not be confused with the 
very different goal of promoting racial diversity 
among the faculty. Because this latter goal was 
not urged as such in support of the layoff provision 
before the District Court and the Court of Appeals, 
however, I do not believe it necessary to discuss 
the magnitude of that interest or its applicability 
in this case.

476 U.S. at__ n.*, 106 S. Ct. at 1854 n.*. The opinions
of Justices Marshall and Stevens suggested this question 
should be answered affirmatively. See Wygant, 476 U.S.
at___, 106 S. Ct. at 1863 (Marshall, J. dessenting); 476 U.S.
at__ , 106 S. Ct. at 1868 (Stevens, J. dissenting). Indeed,
"Wygant reached the Supreme Court without the inclusion 
of the one employer argument that could have met the 
equal protection test of Bakke: That the achievement of 
ethnic diversity helpful to the education process is a com­
pelling state interest.” Kandel, The Limits o f Wygant v. 
Jackson Board of Education, 12 Empl. Rel. L.J. 289, 290 
(1986). The Court should seize this opportunity to resolve 
the question and inform the lower courts and school admin­
istrations of its answer.

This case squarely presents the question whether the



13

promotion of racial diversity among the faculty of primary 
and secondary educational institutions is a sufficiently 
compelling or important interest to justify the adoption of 
an affirmative action plan. Indeed, the opening paragraph 
of Resolution 1020 explicitly states its purpose:

Public schools reflect a cross section of society 
from all ethnic, socio-economic and other phases 
of the community. To provide in-depth educa­
tion, the schools need to provide in the learning 
environment an opportunity for children to expe­
rience highly qualified representatives of all eth­
nic groups and cultures as part of their education 
since they need to learn to function in a pluralistic 
world.

App. at p. 118a. The dissenting opinion authored by Judge 
Cummings approved of the seemingly harsh no minority 
layoff provision because the provision "was not only a rem­
edy for past discrimination against black teachers, but also 
was part and parcel of the School Corporation’s constitu­
tionally mandated efforts to replace its dual school system 
with an integrated learning environment.” App. at p. 22a. 
In its Brief on Rehearing En Banc, the School Corporation 
urged the Seventh Circuit to approve the goal of attempt­
ing to appoximate the percentage of black teachers in its 
work force with the percentage of blacks in its student 
body as being narrowly tailored to the purpose of promoting 
racial diversity on its faculty (Def. Brief on Rehearing En 
Banc, pp. 16-17, 22). The NAACP Legal Defense Fund and 
Lawyer’s Committee for Civil Rights under Law, amicus 
curiae in the Seventh Circuit, also argued that the promo­
tion of a racially diverse faculty is a sufficiently compelling 
purpose to justify affirmative action.

Notwithstanding the arguments of the dissenting 
judges, the School Corporation, and the amicus curiae, 
Judge Posner rested his opinion on his conclusion that "the 
plan was invalid because tied to an improper hiring goal, 
that of equating the fraction of black teachers to the frac­



14

tion of black students.” App. at p. 14a. That goal, however, 
is entirely proper and logical if the plan has the dual pur­
poses of promoting a racially diverse faculty and remedy­
ing past discrimination. This Court should grant certiorari 
to address whether this purpose is sufficiently compelling 
or important to warrant affirmative action.

The number of Americans affected by affirmative 
action programs and the recurring nature of the fact pat­
tern giving rise to these issues heightens the importance of 
the questions presented. By the force of HEW regulations, 
all public school districts which provide vocational educa­
tion and receive federal financial assistance are obliged to 
take steps to overcome the effects of past discrimination in 
the recruitment, hiring, and assignment of faculty, i.e., to 
take affirmative action. 34 C.F.R. Part 100, App. B. at 337 
(1986). The National School Boards Association conducted 
an informal survey of the nation’s largest school districts 
for its amicus curiae brief in the Wygant case. The sur­
vey disclosed that of the 60 percent of the districts respon­
ding, over two-thirds have voluntarily adopted affirmative 
action plans and twelve districts have plans or collective 
bargaining agreements that afford protection against lay­
off to minority teachers. Brief of National School Boards 
Ass’n at 14-17, Wygant v. Jackson Board o f Education, 476 
U.S___ (1986) (No. 84-1340).

Moreover, the impact of the Seventh Circuit’s overly 
broad reading of Wygant reaches beyond public school dis­
tricts. Employers of all kinds have affirmative action 
plans; none are immune from layoffs. For example, in 
NAACP v. Detroit Police Officers Ass’n, 125 L.R.R.M. 
(BNA) 2784 (6th Cir. 1987), the City of Detroit laid off 
1,100 police officers in 1979-1980, approximately 75 per­
cent of whom were black. This combination of facts -  a 
need for layoffs following a sharp increase in minority hir­
ing pursuant to an affirmative action plan — raises the 
questions presented in this case. The combination is not



15

rare.* The Seventh Circuit’s expansion of Wygant effec­
tively prohibits employers from protecting recently hired 
minorities from cyclical layoffs. These employers need 
additional guidance from this Court on the permissible lim­
its on the use of layoffs to preserve gains made pursuant 
to affirmative action plans.

The potential liability of public employers for missteps 
in their efforts to protect minority employees against lay­
offs adds to the importance of the questions presented and 
merits this Court’s attention. When a public school district 
suffers an adverse judgment, the money can come from 
only one of two places. Either the public will pay the judg­
ment through increased taxes or the money will be diverted 
from another use which would otherwise further the school 
district’s overall purpose of providing quality education to 
its students.

Justices Blackmun and O’Connor have previously com­
mented on the dilemma confronting public employers in 
the affirmative action context:

The broad prohibition against discrimination [in

* There is considerable evidence of the potentially widespread 
impact of a decision in this case. For example, an Associated 
Press story released the day after the Wygant decision reported 
that the decision drew into question all the State of Michigan’s 
labor contracts. Those contracts, in order to further affirma­
tive action purposes, provided for layoffs not based on seniori­
ty. "Michigan Teachers Surprised at Supreme Court Ruling,” 
Associated Press (May 20, 1986) (text in NEXIS). In a May 25, 
1986, editorial in the Los Angeles Times, Professor Schwartz 
of the American University School of Law asserted that thou­
sands of affirmative action programs, affecting millions of Amer­
ican workers, were affected by the Court’s decision in Wygant. 
Schwartz, "Supreme Court Holds to Affirmative Action,” L.A. 
Times, May 25, 1986, Part 5, at 3, col. 4. Professor Schwartz fur­
ther noted that, during the 1974-75 fiscal year, more than half 
of all Latino city workers in New York lost their jobs because of 
seniority-based layoffs.



16

Title VII] places the employer and the union on 
what [Judge Wisdom, dissenting from the Fifth 
Circuit’s decision in Weber] accurately described 
as a "high tightrope without a net beneath them.”
If Title VII is read literally, on the one hand 
they face liability for past discrimination against 
blacks, and on the other they face liability to 
whites for any voluntary preferences adopted to 
mitigate the effects of prior discrimination against 
blacks.

United Steelworkers o f America v. Weber, 443 U.S. 193, 
209-10 (Blackmun, J., dissenting; citations omitted). See
also Wygant, 476 U.S. at__ , 106 S. Ct. at 1855 ("[P]ublic
employers are trapped between the competing hazards of 
liability to minorities if affirmative action is not taken 
to remedy apparent employment discrimination and lia­
bility to nonminorities if affirmative action is taken.”) 
(O’Connor, J., concurring; emphasis in original); Johnson
v. Transportation Agency, Santa Clara, California,__ U.S.
at__ , 107 S. Ct. at 1463 (1987) (opinion of O’Connor, J.).

This problem has taken on a new twist as minority 
employees have recently brought suits contending that an 
employer’s affirmative action plan entitled the minority 
employee to favorable treatment at the time of layoff. At 
least one such suit has succeeded to date. In Liao v. Dean, 
658 F. Supp. 1554 (N.D. Ala. 1987), the Tennessee Valley 
Authority had employed Liao, a Chinese female Ph.D., pur­
suant to its affirmative action program. During a reduction 
in force Dr. Liao was terminated, though TVA retained a 
less senior white male. The district court held Dr. Liao 
was entitled to favorable treatment at the time of layoff, 
writing:

The whole rationale for TVA’s [affirmative action 
plan] is frustrated and made into a sham unless 
Dr. Liao is given the benefit of the doubt dur­
ing a [reduction in force]. In this instance, TVA 
was perfectly aware of its [affirmative action plan] 
requirements and yet made a decision without in



17

any way giving Dr. Liao the preferential consid­
eration she was due under the [affirmative action 
plan]. An employer simply cannot be allowed to 
advertise itself as an affirmative action employer 
and then wink at its [affirmative action plan] 
when it gets in the way.

658 F. Supp. at 1561. See also NAACP v. Detroit Police 
Officers Ass’n, 125 L.R.R.M. (BNA) 2784 (6th Cir. 1987) 
(complaint alleges judicial approval of public employers’ 
affirmative action plan forecloses employer from later lay­
ing off recently hired minority employees who would oth­
erwise be laid off on the basis of seniority under a collec­
tive bargaining agreement). The governing bodies of school 
corporations, other employers, and their counsel all desper­
ately need clear guidance on the permissible limits on the 
use of affirmative action measures during a reduction in 
force.

The many opinions rendered by the en banc Court of 
Appeals also illustrate the need for further guidance in 
this area. In Wygant, the Court stated that a layoff plan 
(1) must serve a compelling or important governmental 
purpose and (2) must be narrowly tailored or substantially 
related to achieving that purpose. In this case, the Court 
of Appeals ruled in favor of the School Corporation by a six 
to three margin on the first prong, but ruled against the 
School Corporation by a five to four margin on the second. 
The five judges who comprised the majority could not agree 
on a rationale. Three of them based their decision on the 
fact that the School Corporation’s plan was purportedly 
tied to an improper hiring goal while the other two rested 
their decision on the fact that Article XXIII, § 9 prohibited 
the layoff of minority teachers during the three year term 
of the CBA. Three dissenting opinions were filed. A case 
presenting issues that so closely divided the en banc Court 
of Appeals warrants further consideration by this Court. 
See Rinaldi v. United States, 434 U.S. 22 (1977); Miree v. 
DeKalb County, 433 U.S. 25 (1977); Oil Workers’ Union v.



18

Mobil Oil Corp., 426 U.S. 407, 412 (1976).
We now turn to the final factor contributing to the 

importance of the questions presented -  namely, the incor­
rect manner in which the questions were decided below 
through the use of an unprecedented per se analysis and 
without remand to the district court for additional eviden­
tiary proceedings in light of Wygant v. Jackson Board of 
Education.

HI. The Decision Below Conflicts In Principle
With Decisions Of This Court And Of Other
Circuits.
The plurality and concurring opinions below conflict 

in principle with decisions of this Court and of other cir­
cuits in three respects. First, as noted above, Judge Fbsner 
invalidated Article XXm , § 9 because, in his view, it was 
tied to an improper hiring goal; his opinion did not con­
sider, however, whether the School Corporation’s inter­
est in promoting racial diversity among its faculty was 
sufficiently compelling or important to justify the hiring 
goal. Second, Judge Flaum’s opinion finds Article XXUI, 
§ 9 unconstitutional per se by ignoring several relevant fac­
tors, contrary to numerous affirmative action decisions of 
this Court which carefully balance these factors. Third, the 
refusal of the plurality and concurring opinions to remand 
the case for further fact-finding and analysis in light of this 
Court’s Wygant opinion is contrary to Lehman v. Trout, 465 
U.S. 1056 (1984) (mem.) and Pullman-Standard v. Sunnt, 
456 U.S. 263 (1982), and to the decisions of at least two 
other circuits since Wygant.

A. The Decision Below Conflicts In Princi­
ple With Bakke And Wygant.

This Court’s opinions in Bakke and Wygant noted that 
promoting racial diversity may be a compelling purpose for 
an educational institution. In Regents of the University o f 
California v. Bakke, 438 U.S. 265 (1978), a medical school 
admissions program which reserved a certain number of



19

places for minority students was challenged as unlawful 
race discrimination. The medical school defended the pro­
gram on several grounds. Discussing one ground, Justice 
Powell wrote:

The fourth goal asserted by [the medical school] 
is the attainment of a diverse student body. This 
clearly is a constitutionally permissible goal for 
an institution of higher education. Academic free­
dom, though not a specifically enumerated consti­
tutional right, long has been viewed as a special 
concern of the First Amendment.. . .

* * *
[T]he interest of diversity is compelling in the con­
text of a university’s admissions program.. . .

438 U.S. at 311-312, 314.
Following the lead of Justice Powell in Bakke, in 

Wygant at least five members of the Court were willing to 
recognize the promotion of racial diversity among faculty, 
at the primary and secondary education levels, as a com­
pelling governmental purpose. Justice Marshall, joined by 
Justices Brennan and Blackmun, wrote:

Were I satisfied with the record before us, I would 
hold that the state purpose of preserving the 
integrity of a valid hiring policy -  which in turn 
sought to achieve diversity and stability for the 
benefit of all students -  was sufficient, in this case, 
to satisfy the demands of the Constitution.

476 U.S. a t__ , 106 S. Ct. at 1863. Justice Stevens asked
"whether the Board’s action advances the public interest 
in educating children for the future” and answered that "a 
school board may reasonably conclude that an integrated 
faculty will be able to provide benefits to the student body 
that could not be provided by an all white, or nearly all
white, faculty.” 476 U.S. a t__ , __ , 106 S. Ct. at 1867,
1868. Justice O’Connor noted that the "goal of providing 
'role-models’ discussed by the courts below should not be 
confused with the very different goal of promoting racial 
diversity among the faculty.” 476 U.S. at —  n.*, 106 S. Ct.



20

at 1854 n.*. Justice O’Connor found it unnecessary to dis­
cuss the applicability of this interest in Wygant but further 
noted that "although its precise contours are uncertain, a 
state interest in the promotion of racial diversity has been 
found sufficiently 'compelling,’ at least in the context of 
higher education, to support the use of racial considera­
tions in furthering that interest.” 476 U.S. at__ , 106 S.
Ct. at 1853.

Notwithstanding the apparent willingness of a major­
ity of this Court to recognize the promotion of racial diver­
sity among faculty as a compelling governmental pur­
pose, as noted above, Judge Posner held Article XXIII, § 9 
unconstitutional because he considered it to be tied to an 
improper hiring goal. His opinion, however, considered 
the propriety of the hiring goal only in light of the School 
Corporation’s interest in remedying prior discrimination. 
Judge Posner analyzed neither the weight of the School 
Corporation’s interest in providing a racially diverse fac­
ulty nor the propriety of the School Corporation’s hiring 
goal in light of that interest. This approach conflicts with 
the views espoused by a majority of this Court.

B. The Per Se Analysis Developed By 
The Concurring Opinion Below Conflicts 
In Principle With Several Affirmative 
Action Decisions Of This Court.

As noted above, Judges Flaum and Bauer rested their 
decision that Article XXIII, § 9 was unconstitutional solely 
on the fact that it prohibited the layoff of minorities dur­
ing the three-year term of the CBA. App. at p. 17a. Never 
mind the fact that Indiana law authorized de jure segre­
gation in public schools until 1949. Never mind the fact 
that, over 20 years after this Court’s decision in Brown 
v. Board o f Education and eight years after this Court’s 
command in Green v. County School Board to "implement 
a plan that promises realistically to work, and promises 
realistically to work now,” 391 U.S. at 439 (emphasis in



21

original), the HEW found that the School Corporation still 
maintained a racially segregated system. Never mind that 
the CBA would be in effect for only three years and that 
it was inconceivable that during the term of the CBA the 
School Corporation would achieve its goal of raising the 
percentage of minority teachers in its work force until it 
approximated the percentage of minority students in the 
student body. Never mind that the CBA contained pro­
visions to mitigate the impact of layoffs on nonminority 
teachers, such as 15 permanent substitute positions to be 
filled by laid off teachers according to seniority, and pref­
erential recall and daily substitution rights for laid off 
teachers. Never mind that the CBA was explained to 
the teachers, a majority of whom are white, by their bar­
gaining representative and that it received overwhelming 
approval. Never mind that the provision appears to have 
affected only one percent of the School Corporation’s white 
teachers. Under Judge Flaum’s analysis, all these factors 
are completely irrelevant; the provision is unconstitutional 
simply because it prohibits the layoff of minorities.

The per se approach of the concurring judges below 
contrasts starkly with the affirmative action decisions of 
this Court, which painstakingly balance several factors. 
For example, in Johnson v. Transportation Agency, the 
Court applied the factors first identified in United Steel­
workers o f America v. Weber, 443 U.S. 193 (1979), name­
ly, whether a plan (1) unnecessarily trammeled the inter­
ests of white employees, (2) created an absolute bar to the 
advancement of white employees, and (3) was a temporary 
measure. Johnson,__ U.S. at___, 107 S. Ct. at 1449.

In United States v. Paradise, 480 U.S----- - 107 S. Ct.
1053 (1987), the Court considered a challenge to a one- 
black-for-one-white promotion requirement to be applied 
as an interim measure to state trooper promotions in the
Alabama Department of Public Safety. 480 U.S. at__ , 107
S. Ct. at 1057. Discussing the appropriate analysis in such



22

a case, Justice Brennan wrote:
In determining whether race-conscious remedies 
are appropriate, we look to several factors, includ­
ing the necessity for relief and the efficacy of alter­
native remedies, the flexibility and duration of the 
relief, including the availability of waiver provi­
sions; the relationship of numerical goals to the 
relevant labor market; and the impact of the relief 
on the rights of third parties.

480 U.S. at___, 107 S. Ct. at 1067 (citations omitted). Jus­
tice Pbwell likewise identified five factors relevant to "de­
termining whether an affirmative action remedy is nar­
rowly drawn to achieve its goal.” 480 U.S. a t__ , 107 S.
Ct. at 1075. Scholars have commented on the careful bal­
ancing process evidenced by the Court’s affirmative action 
decisions. E.g. Choper, supra, at 274 ("Justice Powell 
employs a balancing process even where remedying a prior 
violation.”); Stewart, Affirmative Action Barely Upheld, 72 
A.B.A. J. 44, 44 (Dec. 1, 1986) ("The strength of [the] com­
peting claims has led the justices to avoid bright-line stan­
dards. Instead, the Court has focused on the factual cir­
cumstances of each case, weighing various facts or proce­
dural elements.”).

The conflict between Judge Flaum’s opinion and this 
Court’s decision in United States v. Paradise is dramat­
ic. Judge Flaum held Article XXIII, § 9 unconstitutional 
because it prohibited the layoff of minority teachers dur­
ing the three-year term of the CBA. In Paradise, the 
government suggested "that the one-for-one requirement 
[was] arbitrary because it [bore] no relationship to the 25%
minority labor pool relevant here.” 480 U.S. a t__ , 107 S.
Ct. at 1071. Justice Brennan responded:

This argument ignores that the 50% figure is not 
itself the goal; rather it represents the speed at 
which the goal o f 25% percent will be achieved. The 
interim requirement of one-for-one promotion (had 
it continued) would simply have determined how 
quickly the Department progressed toward this



23

ultimate goal... .To achieve the goal of 25% black 
representation in the upper ranks, the court was 
not limited to ordering the promotion of only 25% 
blacks at any one time. Some promptness in the 
administration of relief was plainly justified in 
this case, and use of deadlines or end-dates had 
proven ineffective. In these circumstances, the use 
of a temporary requirement of 50% minority pro­
motions, which, like the end date in Sheet Metal • 
Workers, was crafted and applied flexibly, was con­
stitutionally permissible.

* * *
Again, however, [the proposal limiting minority 
promotions to 25%] completely ignores the fact and 
the effects of the Department’s past discrimination 
and its delay in implementing the necessary pro­
motion procedure.

480 U.S. a t__ , 107 S. Ct. at 1071 (emphasis added). Simi­
larly, the no minority layoff provision did not represent the 
School Corporation’s goal. The School Corporation was not 
striving to achieve an all black teaching staff. Rather, the 
no minority layoff provision simply represented the speed 
at which the School Corporation would continue to reduce 
the disparity between the percentage of black teachers and 
the percentage of black students in the corporation.

In Paradise, the Court stated that "the Department’s 
prior employment practices and conduct during this law­
suit bear directly on the constitutionality of any race­
conscious remedy imposed upon it.” 480 U.S. at__ , 107
S. Ct. at 1058 (emphasis added). Though the School Cor­
poration’s six to seven year delay in curing the discrimina­
tion found by the HEW is irrelevant under Judge Flaum’s 
analysis, in Paradise "[i]t would have been improper for 
the District Judge to ignore the effects of the Department’s 
delay and its continued default of its obligation to develop
a promotion procedure.. . . ” 480 U.S. a t__ , 107 S. Ct. at
1072 (emphasis added). Justice Powell agreed, concluding 
that "[gjiven the findings of persistent discrimination, the 
Department’s longstanding resistance to necessary reme-



24

dies, and the exigent circumstances presented to the Dis­
trict Court, the imposition of a one-for-one requirement 
for the particular promotions at issue does not violate the
Equal Protection Clause.” 480 U.S. at__ , 107 S. Ct. at
1076.

As further justification for upholding the district 
court’s choice in Paradise of the one-for-one promotion pol­
icy over a one-for-three proposal, Justice Brennan wrote:

Following adoption of the plaintiffs’ proposal that 
8 blacks and 8 whites should be promoted, the 
corporal rank was composed of 14 black and 73 
white troopers (16% black). Under the Depart­
ment’s proposal that 4 blacks and 11 whites should 
be promoted, the corporal rank would have been 
composed of 8 black and 79 white troopers (9.2% 
black). Neither proposal would have raised the 
percentage of blacks in the corporal rank to the 
25% mark set as an alternate goal by the District 
Court.. . .

480 U.S. at__ n.30,107 S. Ct. at 1072 n.30. See also Smith
v. Harvey, No. 84-212-Civ-T-13, slip op. (M.D. Fla. Oct. 3, 
1986) ("The city fire department had not yet met its pro­
motion goals at the time the plaintiffs filed this suit.. . .  
[T]he mere speculation that the plan would be illegally 
maintained did not present an issue ripe for determina­
tion at the time this action was filed.”) (text in LEXIS, 
Genfed library, dist file). In this case, the effect of Article 
XXm , § 9 was to raise the percentage of black teachers 
in the School Corporation from 13.0 percent to 13.8 per­
cent. At the time, the percentage of black students was 
approximately 25 percent. This fact was irrelevant under 
Judge Flaum’s analysis, however. The lower courts are 
misreading Wygant to strike down all attempts to preserve 
affirmative action during a reduction in force without due 
regard to all factors that affect the validity of such efforts.



25

C. The Court Of Appeals’ Failure To Re­
mand Is Inconsistent In Principle With 
Decisions Of This Court And At Least 
Two Courts Of Appeal.

In Wygant, this Court addressed for the first time 
the constitutionality of layoffs by a public employer on 
the basis of race. Prior to Wygant the Circuit and Dis­
trict Courts had generally applied the factors identified in 
Weber and Bakke when assessing affirmative action plans. 
Wygant identified additional factors to consider in the lay­
off context, such as the extent of the burden imposed on 
nonminority teachers by the layoff and the school district’s 
interest in improving education by having a racially 
diverse faculty. Because the district court relied on the 
School Corporation’s interest in remedying past discrimi­
nation to uphold the plan, whether the interest in having 
a racially diverse faculty could justify Article XXIH, § 9 
was not considered. Further, while containing evidence of 
provisions that mitigated the impact of Article XXIH, § 9 
on white teachers, the record is far from complete on the 
issue of the burden imposed on the laid off teachers by that 
provision. The district court certainly made no findings on 
this factor.

In Pullman-Standard, v. Svnnt, 456 U.S. 273 (1982), 
this Court held: "Where findings are infirm because of an 
erroneous view of the law, a remand is the proper course 
unless the record presents only one resolution of the factual 
issue.” 456 U.S. at 292. See also Lehman v. Trout, 465 
U.S. 1056 (1984) (mem.). Accord Johnson v. Transportation
Agency, __ U.S. at___n.4, 107 S. Ct. at 1470 n.4 (1987)
(Scalia, J. dissenting). Even though Wygant was decided 
between the time of the district court’s judgment and the 
time of the judgment of the Court of Appeals en banc, 
the plurality and concurring opinions refused to remand 
this case to the district court for further fact-finding and 
analysis in light of Wygant. This disposition conflicts with 
the Court’s decisions in Pullman-Standard v. Svnnt and



26

Lehman v. Trout.

In LeDoux v. District o f Columbia, 820 F.2d 1293 
(D.C. Cir. 1987), the court considered a challenge to pro­
motions made pursuant to a voluntary affirmative action 
plan adopted by the Metropolitan Police Department of the 
District of Columbia designed to place "special emphasis” 
on the hiring and advancement of females and minorities. 
With regard to the fourteenth amendment challenge, how­
ever, the D.C. Circuit wrote:

[T]he trial court did not have the benefit of Wygant 
when it undertook to examine the validity of the 
Plan. As a consequence, it did not make fac­
tual findings geared to the legal question whether 
the Plan is permissible under the Constitution.
We must therefore remand for further findings 
because the Supreme Court has made it absolutely 
clear that the requisite findings in an employment 
discrimination suit are to be made by the trial 
court, not the court of appeals.

820 F.2d at 1305 (citations omitted). Similarly, in Long 
v. City o f Saginaw, No. 85-1352, slip op. (6th Cir. Oct. 
20, 1986) (text in Westlaw, CTA6 library), the plaintiffs 
challenged a modification to a collective bargaining agree­
ment permitting the hiring of one minority police officer 
for every officer recalled from layoff status. The district 
court held for the public employer. On appeal, the Sixth 
Circuit wrote:

In evaluating the cross motions for summary judg­
ment before it, the district court relied heavily on 
this court’s opinion in Wygant v. Jackson Board of 
Education, 746 F. 2d 1152 (6th Cir. 1984). How­
ever, our opinion in Wygant was recently reversed 
by the Supreme Court. Wygant v. Jackson Board
of Education,__ U.S____ , 106 S. Ct. 1842 (1986).
For this reason, we are of the opinion that this 
case should be REMANDED to the district court 
for reconsideration in light of the Supreme Court’s 
ruling in Wygant, supra.



27

Long, slip op. at___At least two courts of appeals have
recognized their responsibility to remand cases to the dis­
trict court as the trier of fact for further fact-finding and 
analysis in light of this Court’s Wygant decision where 
that decision was rendered between the time of the district 
court’s judgment and the appellate court’s decision. The 
decision in this case conflicts with decisions of the Sixth 
and District of Columbia Circuits.

To support his disposition below, Judge Posner noted 
that this Court did not remand Wygant for further eviden­
tiary proceedings and analysis in light of the standards 
announced therein. Wygant, however, arose in an entirely 
different procedural context from this case. The district 
court in Wygant rendered its decision in response to cross
motions for summary judgment. See 476 U.S. at__ , 106 S.
Ct. at 1846. Because the parties in Wygant were in agree­
ment that there were no genuine issues of material fact, 
remand would have served no purpose as there were no 
facts to be tried. While the parties attempted to create fac­
tual issues by lodging material with this Court, the Court 
disregarded the lodged material.

In contrast, the district court rendered its decision in 
this case after a trial of disputed facts. The standard of 
review on appeal, though nowhere alluded to in either the 
plurality or concurring opinion below, was whether the 
district court’s findings were clearly erroneous. The plain­
tiffs, not the School Corporation, had the burden of proving 
that Article XXIII, § 9 did not serve a compelling or impor­
tant governmental interest or that it was not narrowly tai­
lored or substantially related to accomplishing that inter­
est. Wygant, 476 U.S. at__ , __ , 106 S. Ct. at 1850
and 1860-61 n.3 (O’Connor, J. concurring, and Marshall, 
J. dissenting); Johnson v. Transportation Agency, —  U.S.
at__ , 107 S. Ct. at 1449. The district court held that the
plaintiffs had failed to meet that burden. Yet the plural­
ity and concurring judges of the Court of Appeals simply



28

reversed the district court without setting aside any of its 
findings as clearly erroneous and without remanding for 
further consideration and fact-finding in light of Wygant. 
This disposition conflicts with Pullman-Standard v. Sunnt, 
Lehman v. Trout, and the decisions of the Sixth and Dis­
trict of Columbia Circuits cited above and warrants sum­
mary reversal with instructions to remand this case to the 
district court for further evidentiary proceedings and anal­
ysis in light of Wygant.



CONCLUSION
On the basis of the foregoing arguments and authori­

ties, this Petition for Certiorari should be granted. This 
Court should give the case plenary consideration to deter­
mine whether Article XXIII, § 9 can be justified in rela­
tion to the compelling governmental interest in promot­
ing racial diversity among the faculty at primary and sec­
ondary schools and whether Article XXH3, § 9 is narrowly 
tailored or substantially related to achieving its purposes 
when all relevant factors are considered. Alternatively, 
the Court should summarily reverse the en banc decision of 
the Court of Appeals with instructions to remand the case 
to the district court for further fact-finding and analysis in 
light of Wygant v. Jackson Board of Education.

Respectfully Submitted,
/s/ Stanley C. Fickle 
Stanley C. Fickle 

Counsel of Record
Franklin A. M orse, II 
Gregory L. Kelly 
Lynn C. Tyler 
Barnes & Thornburg

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

August 14, 1987 Counsel for Petitioners

29