Wygant v. Jackson Board of Education

RESPONDENT: Jackson Board of Education
LOCATION: Southhampton County Circuit Court

DOCKET NO.: 84-1340
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 476 US 267 (1986)
ARGUED: Nov 06, 1985
DECIDED: May 19, 1986

Jerome A. Susskind - Argued the cause for the respondents
K. Preston Oade, Jr. - Argued the cause for the petitioners

Facts of the case

Under the collective bargaining agreement between the Jackson Board of Education (Board) and a teachers' union, teachers with the most seniority would not be laid off. It was also agreed not to lay off a percentage of minority personnel that exceeded the percentage of minority personnel employed at the time of a layoff. When the schools laid off some nonminority teachers, while retaining other minority teachers with less seniority, Wendy Wygant, a displaced nonminority teacher, challenged the layoff in district court. Holding that the Board could grant racial preferences without grounding them on prior discrimination findings and that the preferences did not violate the Equal Protection Clause, since they remedied discrimination by providing "role models" for minority students, the District Court upheld the layoff provision's constitutionality. When the appeals court affirmed, the Supreme Court granted Wygant certiorari.


Did the collective bargaining agreement provision for race-based layoffs violate the Fourteenth Amendment's Equal Protection Clause?

Media for Wygant v. Jackson Board of Education

Audio Transcription for Oral Argument - November 06, 1985 in Wygant v. Jackson Board of Education

Warren E. Burger:

Mr. Oade, you may proceed when you are ready.

K. Preston Oade, Jr.:

Mr. Chief Justice, and may it please the Court:

We are here today because the individual Petitioners have suffered what we deem to be constitutional injury by being laid off on numerous occasions from their employment as tenured public school teachers with the Jackson School District in Jackson, Michigan.

The eight individual tenured teachers have, between 1976 and the present time, been laid off on a number of occasions from periods ranging from six weeks up to three years of no employment for Petitioner Wendy Wygant.

Deborah Brezezinski, another one of the individual Petitioners, has been laid off eight times, eight separate times, during the past nine years.

The reasons for these layoffs are because of a race-based system for layoff contained in a labor contract between their employer and their union.

We submit that this is an explicit use of race imposed and sponsored by the state itself, the local school board being an agent of the state, being a political subdivision of the State of Michigan, and as such we submit that it must be justified by the state and that justification must be of the most compelling nature.

We submit to the Court that at a minimum where the state seeks to assign job benefits and burdens based upon race the burden is upon the state to show a state interest that has some remedial character and we say, number one, the state must identify an injury, identify a constitutional injury that must be remedied at the expense of the individual Petitioners.

We say, number two, the state must show that the instrument or device or means chosen to remedy that identified discrimination are properly tailored to achieve that end and no other end.

Number three, we think at a minimum the state must do this before, not after, before it resorts to the use of race for determining job benefits.

If the states does not do it before the use of race is assigned to determine job rights, how are the courts to review whether the use of race is a permissible constitutional objective and responds to a proper remedial purpose?

So, the justification should not be ad hoc or ex post facto.

It should be done before the use of race is adopted.

Now, we say that the use of race in this case has no remedial character and as such amounts to a naked racial preference.

We say that because--

Sandra Day O'Connor:

Mr. Farris, do you think that a school board has the right to look at its employees overall and to look at the number of black employees it has and the number of black employees available in that immediate area for employment in jobs in the school and conclude for itself that the school hasn't done as much as it should have to employ black employees and develop a program to implement some effort to hire more black employees?

K. Preston Oade, Jr.:

--Justice O'Connor, we agree with that and we think that as a predicate for properly conceived affirmative action that is exactly what any employer must do.

Sandra Day O'Connor:

Well, could it, as part of the program, adopt some kind of layoff policy like this if it felt it were necessary to complete the implementation?

K. Preston Oade, Jr.:

We think that there are some differences between affirmative action recruiting and what an employer may do to incumbent employees.

We think to take two public employees, one white and one black, and to treat them differently because of their race must, as I have said, bear a most extraordinary justification.

And, whether or not such a justification would be present in the abstract, I guess, is what your question goes to.

Sandra Day O'Connor:


Do you think it is possible under the kind of inquiry I suggested?

K. Preston Oade, Jr.:

I think, Justice O'Connor, there are, for example, school desegregation cases where the courts have found that in order to remedy on-going constitutional violations in segregated school districts and in order to have effective desegregation that it may be necessary to make layoffs by race, but only if strictly necessary to remedy constitutional violations.

And, of course, there are no such constitutional violations in this case.

We say there is no balancing to be done.

Individuals, says the Constitution, have a right to equal protection under the laws.

If there is some injury that must be remedied or some other compelling constitutional value, then there is a balancing test to be done, but in this case before the Court, we plead in the complaint in the lower courts in paragraph 21 of our complaint that... and I quote,

"There has been no finding of past employer discrimination in the hiring of teacher personnel on the part of the Jackson School Board by a governmental agency competent to rule on such matters. "

Byron R. White:

What are you reading from?