THE COLLECTIVE BARGAINING AGREEMENT

In 1972, the Jackson Board of Education (Board) and the Jackson Education Association (Union) agreed to a new layoff provision (Article XII) to their Collective Bargaining Agreement (CBA) because of racial tension in the community that extended to its schools.  The new provision stated

"In the event that it becomes necessary to reduce the number of teachers through layoff from employment by the Board, teachers with the most seniority in the district shall be retained, except that at no time will there be a greater percentage of minority personnel laid off than the current percentage of minority personnel employed at the time of the layoff.  In no event will the number given notice of possible layoff be greater than the number of positions to be eliminated.  Each teacher so affected will be called back in reverse order for positions for which he is certificated maintaining the above minority balance."

The CBA defined "minority personnel" as "those employees who are Black, American Indian, Oriental, or of Spanish descendancy."

Application of The Agreement  

When layoffs became necessary in 1974, it was evident that adherence to the CBA would result in the layoff of tenured non-minority teachers while minority teachers on probationary status were retained.  Rather than complying with the CBA, the Board retained the tenured teachers and laid off probationary minority personnel that existed at the time of the layoff.  The Union, with two minority teachers who had been laid off, brought suit in state court and the state court found that the Board had breached its contract with the Union.  As a result of the court's decision, the Board adhered to the CBA.  During the 1976 - 1977 and 1981 - 1982 school years, non-minority teachers were laid off, while minority teachers with less seniority were retained.  The displaced non-minority teachers brought suit in federal district court.  The district court held that racial preferences granted by the Board were permissible under the Equal Protection Clause as an attempt to remedy "societal discrimination" by providing "role models" for minority schoolchildren.  In an appeal to the federal court of appeals, the decision of the district court was upheld.

THE ISSUE

May a school board, consistent with the Equal Protection Clause of the Fourteenth Amendment, extend preferential protection against layoffs to some of its employees because of their race or national origin?

THE JUDGMENT

The CBA violated the Equal Protection Clause of the Fourteenth Amendment because (1) the Board of Education did not convincingly show that it had engaged in discriminatory hiring practices against minorities and (2) the layoff provision was not sufficiently narrowly tailored. 

THE OPINIONS

The opinions fell into three areas.  Justice Powell, Chief Justice Burger, and justices Rehnquist and  O'Connor used the terminology to describe a strict scrutiny review.  Justices Marshall, Brennan, and Blackmun, felt that the case should be sent back to the district court for a development of the facts.  However, they noted differences in the standard of scrutiny applied in past cases.  Justice Stevens went in a different direction by asking whether the program provides benefits for the future.

Justice Powell announced the judgment of the Court and delivered an opinion in which Chief Justice Burger and Justice Rehnquist joined.  Justice O'Connor joined in all parts of the opinion with the exception of Part IV.

Standard of Scrutiny To Apply

Justices Powell, Chief Justice Burger, Justice Rehnquist and Justice O'Connor did not specifically state that strict scrutiny should be applied in this case.  However, they used the exact terminology for strict scrutiny.  For example, they noted that

"Any preference based on racial or ethnic criteria must necessarily receive a most searching examination to make sure that it does not conflict with constitutional guarantees.  Fullilove v. Klutznick, 448 U.S. 448, 491 (1980) (opinion of Chief Justice Burger).  There are two prongs to this examination.  First, any racial classification 'must be justified by a compelling governmental interest.'  Palmore v. Sidoti, 466 U.S. 429, 432 (1984); see Loving v. Virginia, supra, at 11; cf. Graham v. Richardson, 403 U.S. 365, 375 (1971) (alienage).  Second, the means chosen by the State to effectuate its purpose must be 'narrowly tailored to the achievement of that goal.'  Fullilove, supra, at 480.  We must decide whether the layoff provision is supported by a compelling state purpose and whether the means chosen to accomplish that purpose are narrowly tailored."

Lack of a Compelling Interest

Justices Powell, Chief Justice Burger, and Justices Rehnquist and O'Connor explained that the Supreme Court never said that "societal discrimination" alone was sufficient to justify a racial classification.  They noted that the Court insisted upon some showing of prior discrimination by the governmental unit involved before allowing limited use of racial classifications to remedy such discrimination.  

In explaining proof of discrimination by statistical disparity, the Justices pointed to Hazlewood School District v. United States, 433 U.S. 299 (1877) to show a "proper comparison for determining the existence of actual discrimination."  This comparison is "between the racial composition of [the school's] teaching staff and the racial composition of the qualified public school teacher population in the relevant labor market." 

The Justices further explained that "by tying the required percentage of minority teachers to the percentage of minority students," the Board could engage in discriminatory hiring and layoff practices long past the point required by any legitimate remedial purpose.  This is because a comparison of teachers to students does not necessarily bear a relationship to the harm caused by prior discriminatory hiring practices of the teachers.

The Justices concluded that 

"Societal discrimination, without more, is too amorphous a basis for imposing a racially classified remedy."  "In the absence of particularized findings, a court could uphold remedies that are ageless in their reach into the past, and timeless in their ability to affect the future."

Narrow Tailoring

In evaluating the purpose or the means to achieve the race-conscious objective, Justice Powell, Chief Justice Burger, and Justice Rehnquist noted that the Court's decisions had always employed a stringent standard of review--however articulated--to test the validity of the means chosen by a State to accomplish the race-conscious purpose.  To illustrate the various descriptions of their standard of review, they provided several examples from specific cases such as

"Such classifications are subject to the most exacting scrutiny; to pass constitutional muster, they must be justified by a compelling governmental interest and must be 'necessary . . . to the accomplishment.'"  (Palmore v. Sidoti, 466 U.S. 429 at 432 (1984))"

"We recognize the need for careful judicial evaluation to assure that any . . . program that employs racial or ethnic criteria to accomplish the objective of remedying the present effects of past discrimination is narrowly tailored to the achievement of that goal"  (quoting McLaughlin v. Florida, 379 U.S. 184, 196 (1964)); (Fullilove, 448 U.S. at 480 (opinion of BURGER, C.J.))"

"Under strict scrutiny, the means chosen to accomplish the State's asserted purpose must be specifically and narrowly framed to accomplish that purpose. (Fullilove, 448 U.S. at 480 (opinion of BURGER, C.J.))"

The Justices noted that the Court's decisions had recognized that, in order to remedy the effects of prior discrimination, it may be necessary to take race into account and that innocent persons may be called upon to bear some of the burden of the remedy.  They explained that such a "sharing of the burden" by innocent parties is not impermissible.

In reviewing the tailoring of the CBA, the Court looked at the burden that it placed on innocent employees that would lose their jobs.  They distinguished the actual effects of layoffs on employees to the "prospective" employment opportunity of a future job.  Specifically, they said

"In cases involving valid hiring goals, the burden to be borne by innocent individuals is diffused to a considerable extent among society generally.  Though hiring goals may burden some innocent individuals, they simply do not impose the same kind of injury that layoffs impose.  Denial of a future employment opportunity is not as intrusive as loss of an existing job."

The Court looked to the value of "seniority" to a union employee and said that "the rights and expectations surrounding seniority make up what is probably the most valuable capital asset that the worker 'owns' worth even more that the current equity in his house."  They then concluded that

"While hiring goals impose a diffuse burden, often foreclosing only one of several opportunities, layoffs impose the entire burden of achieving racial equality on particular individuals, often resulting in serious disruption of their lives.  That burden is too intrusive.   We therefore hold that, as a means of accomplishing purposes that otherwise may be legitimate, the Board's layoff plan is not sufficiently narrowly tailored."

Additional Concurring Opinions

Justice O'Connor

Justice O'Connor confronted the different Equal Protection Clause standards of scrutiny that were applied to racial classifications and explained that she subscribes to Justice Powell's formulation, because it mirrored the standard the Court had consistently applied in examining racial classifications in other contexts.  In Justice O'Connor's view, the analysis and level of scrutiny applied to determine the validity of a racial classification did not vary simply because the objective appeared acceptable to individual Members of the Court.  While the validity and importance of the objective may affect the outcome of the analysis, the analysis itself does not change.

In regard to determining the validity of s state interest, Justice O'Connor said

"Although Justice Powell's formulation may be viewed as more stringent than that suggested by Justices Brennan, White, Marshall, and Blackmun, the disparities between the two tests do not preclude a fair measure of consensus.  In particular, as regards certain state interests commonly relied upon in formulating affirmative action programs, the distinction between a "compelling" and an "important" governmental purpose may be a negligible one."

Justice O'Connor then looked at the means to accomplish the state objective and said

"It appears, then, that the true source of disagreement on the Court lies not so much in defining the state interests which may support affirmative action efforts as in defining the degree to which the means employed must 'fit' the ends pursued to meet constitutional standards.  Yet even here, the Court has forged a degree of unanimity; it is agreed that a plan need not be limited to the remedying of specific instances of identified discrimination for it to be deemed sufficiently "narrowly tailored," or "substantially related," to the correction of prior discrimination by the state actor."  

Dissenting Opinions

Justice Marshall submitted a dissenting opinion that was joined by justices Brennan and Blackmun.

The justices noted that the case record was informal and incomplete.  Additionally, they noted that the parties involved in the case submitted additional documents to the Court.  The Justices stated that 

"The haste with which the District Court granted summary judgment to respondents, without seeking to develop the factual allegations contained in respondents' brief, prevented the full exploration of the facts that are now critical to resolution of the important issue before us.  Respondents' acquiescence in a premature victory in the District Court should not now be used as an instrument of their defeat.  Rather, the District Court should have the opportunity to develop a factual record adequate to resolve the serious issue raised by the case.  I believe, therefore, that it is improper for this Court to resolve the constitutional issue in its current posture."

Although these justices felt the case should be sent back to the lower court for development of the facts, they did respond to the plurality opinion and judgment.   

In regard to the standard of scrutiny to apply to the case, the Justices noted that

"Agreement upon a means for applying the Equal Protection Clause to an affirmative action program has eluded this Court every time the issue has come before us."

Specifically, they pointed to the Bakke and Fullilove cases where there was disagreement over the standard of scrutiny to apply.  They then repeated their belief that when the goal is to eliminate the effects of discrimination the 

"remedial use of race is permissible if it serves 'important governmental objectives' and is 'substantially related to achievement of those objectives.'"

Additionally, the Justices contested the concerns about layoffs and providing cases that disagreed with the concept in the plurality's opinion.

Although these justices did provide an argument against the decision and opinion of the justices who sided with the judgment of the case, their main concern was on the basis for that judgment.  In summarizing their concerns, the Justices said

The alleged facts that I have set forth above evince, at the very least, a wealth of plausible evidence supporting the Board's position that Article XII was a legitimate and necessary response both to racial discrimination and to educational imperatives. To attempt to resolve the constitutional issue either with no historical context whatever, as the plurality has done, or on the basis of a record devoid of established facts, is to do a grave injustice not only to the Board and teachers of Jackson and to the State of Michigan, but also to individuals and governments committed to the goal of eliminating all traces of segregation throughout the country. Most of all, it does an injustice to the aspirations embodied in the Fourteenth Amendment itself. I would vacate the judgment of the Court of Appeals and remand with instructions that the case be remanded to the District Court for further proceedings consistent with the views I have expressed."

Additional Dissenting Opinions