[29] CUMMINGS, Circuit Judge, with whom Judges WOOD, Jr., CUDAHY, and FAIRCHILD join, dissenting.

While fully joining Judge Cudahy's dissent, I feel it is necessary to voice my objection to the grounds relied upon by the plurality and concurrence. "It is now well established that government bodies, including courts, may constitutionally employ racial classifications essential to remedy unlawful treatment of racial or ethnic groups subject to discrimination." United States v. Paradise, ___ U.S. ___, 107 S.Ct. 1053, 1064, 94 L.Ed.2d 203 (plurality opinion); Local 28 of the Sheet Metal Workers' Int'l Ass'n v. EEOC, ___ U.S. ___, 106 S.Ct. 3019, 3052, 92 L.Ed.2d 344 (plurality opinion). Also beyond dispute is the importance of voluntary efforts on the part of public employers, as well as private employers, to eliminate the lingering effects of racial discrimination, even those effects not attributable to the entity's own practices. Johnson v. Transportation Agency, ___ U.S. ___, 107 S.Ct. 1442, 1456-57, 94 L.Ed.2d 615; United Steelworkers v. Weber, 443 U.S. 193, 208, 99 S.Ct. 2721, 2729, 61 L.Ed.2d 480. This concern rises to the level of a constitutional duty to take affirmative action when the lingering discriminatory effects are due to a public employer's own past discrimination. Wygant v. Jackson Board of Education, 476 U.S. 267, 106 S.Ct. 1842, 1856, 90 L.Ed.2d 260 (O'Connor, J., concurring); Keyes v. School District No. 1, 413 U.S. 189, 200, 93 S.Ct. 2686, 2693, 37 L.Ed.2d 548; Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15, 91 S.Ct. 1267, 1275, 28 L.Ed.2d 554; Green v. County School Board, 391 U.S. 430, 437-38, 88 S.Ct. 1689, 1693-94, 20 L.Ed.2d 716. Today's treatment of the layoff plan of the South Bend Community School Corporation (the "School Corporation") will unjustifiably discourage public employers from voluntarily meeting their constitutional obligations to undertake race-conscious remedial measures.

Public employers who undertake race-conscious remedial measures must consider the need for the measures as well as their effects on the rights of employees innocent of discriminatory wrongdoing. Although a majority of the Supreme Court has yet to reach agreement on the standard for reviewing an equal protection challenge to a public employer's affirmative action program, if that plan meets the requirements of strict scrutiny then there can be no doubts as to its constitutionality. Paradise, 107 S.Ct. at 1064. Because we cannot determine on the basis of the record before us that as a matter of law plaintiffs have met their burden of establishing that the School Corporation's layoff provision violated the Equal Protection Clause, even giving them the benefit of the strictest standard for reviewing such plans, this case should be remanded to the district court for further fact-finding.

The evidence and testimony presented at trial and laid out in Judge Cudahy's dissenting opinion herein show that the School Corporation had a "firm basis" for believing that race-conscious remedial measures were necessary. See Wygant, 106 S.Ct. at 1856 (O'Connor, J., concurring). The layoff provision was adopted in 1980 after more than a decade of increasing criticism of the School Corporation's policies and practices that maintained a dual school system — officially prescribed by Indiana law until 1949 — in which some schools could be identified as "white" or "black." In 1967, the School Corporation was forced by a lawsuit to abandon plans to construct a new school on the site of a school that was 99% black and alleged to be a product of de jure segregation. Def. Ex. M-6. There was evidence that black teachers were assigned to predominantly black schools, which received less maintenance and substantially less financial support, and that black teachers had little opportunity for promotion. Id. In 1975, the Office for Civil Rights of the Department of Health, Education and Welfare determined that the School Corporation was intentionally segregating faculty members. Def. Ex. M-3. This finding alone creates a prima facie case of a violation of the Equal Protection Clause justifying race-conscious remedies, Swann, 402 U.S. at 18, 91 S.Ct. at 1277, but there was even more. In the mid-1970's the Board of Trustees of the School Corporation discussed the fact that racially identifiable schools existed and that minority teachers and students were concentrated in "black schools." Trial Tr. 91-92 (testimony of Hollis Hughes, Jr., former member of the Board). In 1976, the School Corporation made only failed attempts, and "not very strong attempts," to dismantle its dual school system. Id. at 92. In May 1978, the State of Indiana Office of Schoolhouse Planning forbade construction of new facilities until the School Corporation addressed the problem of racially identifiable schools. Id. at 93.

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

Therefore, the trier of fact on remand could find that the School Corporation had a firm basis for believing it necessary to adopt a remedy even as drastic as the 3-year no-minority layoff provision. For race-conscious remedies, "the nature of the violation determines the scope of the remedy." Swann, 402 U.S. at 16, 91 S.Ct. at 1276. Here the School Corporation waited for more than 20 years after Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, to begin to dismantle its dual school system and in the meantime continued its policies of maintaining racially identifiable schools until it was forced to change. Although facially appealing, our inquiry into the constitutionality of the layoff provision does not end with the simple observation that the School Corporation's provision barred the laying off of any black teachers while Wygant struck down a plan merely requiring proportional layoffs. Unlike Wygant where there was no evidence of intentional discrimination, see Sheet Metal Workers, 106 S.Ct. at 3053 (plurality opinion); see also dissenting opinion herein at p. 780 (Cudahy, J.), here a trier of fact could find that the School Corporation reasonably believed that such immediate action was necessary to maintain the present number of black teachers. The provision enabled the School Corporation to preserve its affirmative action hiring gains and to counter the lingering discriminatory atmosphere traceable to its recently abandoned policy of assigning black teachers to "black schools," and to do all this in an expedited manner in order to compensate for its past delays in meeting its constitutional obligations — to teachers and students — to "eliminate root and branch" any vestiges of past discrimination. Paradise, 107 S.Ct. at 1066 n. 20, 1067-74; Green, 391 U.S. at 437-39, 88 S.Ct. at 1693-94. The temporary layoff provision was not only a remedy for past discrimination against black teachers, but also was part and parcel of the School Corporation's constitutionally mandated efforts to replace its dual school system with an integrated learning environment.

Rather than allowing the trial court to determine if plaintiffs have proven that the layoff provision was not narrowly tailored to its remedial purpose, the plurality here believes that the plan is "invalid because tied to an improper hiring goal." Plurality opinion at p. 772. The hiring policy, Resolution 1020, which mentioned the percentage of minority students as a goal for the percentage of minority teachers, was a separate resolution of the Board of Trustees, and, unlike the one in Wygant, not part of, nor compelled by, the collective bargaining agreement. See Wygant v. Jackson Board of Education, 746 F.2d 1152, 1158 (6th Cir. 1984), reversed, Wygant, 476 U.S. ___, 106 S.Ct. 1842, 90 L.Ed.2d 260. That the provision was not tied to any hiring goal is made clear by the fact that any teachers laid off because of the agreement would be hired back first when new openings became available. Def. Brief on Rehearing En Banc 23. Because any gains in the percentage of black teachers would evaporate as soon as budgetary constraints eased, the hiring goal would not be furthered. Also, the small number of white teachers who but for the provision would not have been laid off — perhaps only 13 to 16 people — and the less than 1% increase in the fraction of black teachers belie the suggestion that the provision was tied to the hiring goal. Id. at 22-24. The School Corporation believes that it can present evidence that it considered in advance the "probable size of the anticipated layoff and the probable effects of [the layoff provision] on the laid-off teachers," id. at 7 n. 2, which would not only establish that it was designed to be narrowly tailored, but also show that it was not intended to achieve the goal of equating the percentage of black teachers to black students. Thus further fact-finding, now made necessary by Wygant, could dispel this first objection of my brethren.

A second reason advanced by both the plurality and concurrence for holding that plaintiffs have proven that the provision was not narrowly tailored as a matter of law is that it erects an "absolute preference" between the races and places the "entire burden" on white teachers. Their opinions ignore our uncertainty over inter alia the extent of past discrimination and its lingering effects, a determination that defines the appropriate extent of the remedy, see Swann, 402 U.S. at 16, 91 S.Ct. at 1276, by in effect espousing a per se rule that affirmative action programs that can be characterized as creating an "absolute preference for minorities" can never be narrowly tailored.

The shortcoming of this approach is that the validity of an affirmative action program will then depend on how one chooses to define the benefits bestowed by that program. Any advantage bestowed on a minority by an affirmative action program can be characterized as an "absolute preference" if just that advantage is considered and as "not an absolute preference" if the chosen referent is the larger objective that the advantage is intended to help minorities obtain. Thus in United States v. Paradise, apparently the plurality and concurrence would invalidate the remedy if they chose the referent as the 8 promotions to corporal rank set aside for blacks but would uphold it if they chose the referent as promotion to the corporal rank because blacks had no absolute preference for the remaining 8 openings. See 107 S.Ct. at 1071-72 and n. 30, 1073 (plurality opinion). In Sheet Metal Workers, the Supreme Court upheld the court-ordered establishment of a fund which provided only minority youths with part-time and summer sheet metal jobs, counselling, tutorial services, and financial assistance during apprenticeship, stating that there was no absolute preference for minorities to be union members, as opposed to fund beneficiaries. 106 S.Ct. at 3030, 3053 (plurality opinion). Likewise, in the present case the layoff provision does not create an absolute preference for minorities because it did not prevent whites from teaching in the South Bend schools — the vast majority of those positions continued to be held by whites — or from being hired as teachers to fill positions when no qualified laid-off employee was available. Furthermore, the provision was effective for only three years, the School Corporation expected that few teachers would be affected by it, and the School Corporation provided substitute positions to many of those who were affected.

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

In the present case the temporary no-minority layoff provision, as drastic as it is, may be necessary to eliminate the effects of the School Corporation's past discrimination and continued default of its constitutional obligations. The concurrence herein is willing to assume that a proportional layoff plan, or even a disproportional layoff plan, may have been supportable by the School Corporation's remedial purpose. However, given the twenty-plus years of delay in dismantling its dual school system and the resultant discriminatory atmosphere discouraging blacks from teaching at its schools, the School Corporation could well have been justified in deciding that a drastic-but-temporary remedy was needed to bring about an immediate break with its segregationist past, even during times of a fiscal crisis. The School Corporation owed no less to its students and faculty and indeed had a burden of coming forward with "a plan that promises realistically to work, and promises realistically to work now." Green, 391 U.S. at 439, 88 S.Ct. at 1694 (emphasis in original). Reducing the number of black teachers at the very time it was attempting to dismantle its dual school system and provide its students with an integrated learning environment that they had been unconstitutionally denied for twenty-plus years would have undermined these efforts. The unconscionable delays in eliminating the vestiges of discrimination counseled against the School Corporation waiting for an end to its fiscal crisis to provide that integrated learning environment.

The Supreme Court has recently recognized that drastic short-term remedies may be needed to compensate for lengthy delays in eliminating past discrimination. In United States v. Paradise, the Court upheld a court-imposed 50% promotion quota for black Alabama state troopers although the relevant labor pool was only 25% black. 107 S.Ct. at 1068-70, 1071-72 (plurality opinion). The Court concluded that "[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, and to require only that, commencing in 1984, the Department promote one black for every three whites promoted." Id. at 1072. Instead, the 50% promotion quota "provided an accelerated approach to achieving [the 25%] goal to compensate for past delay" and was consistent with its school desegregation cases which have "recognized the importance of expediting elimination of the vestiges of longstanding discrimination." Id. at 1072 n. 30 and n. 31. In the present case a trier of fact could justifiably conclude that plaintiffs failed to prove that the layoff provision was not narrowly tailored to ending the School Corporation's longstanding default of its constitutional affirmative duty to dismantle all vestiges of discrimination. No less burdensome layoff provision might bring about the same benefits as quickly, and the extent of the School Corporation's past discrimination and delays could justify the burdens imposed; therefore, remand is necessary.

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

[42] CUDAHY, Circuit Judge, with whom Circuit Judges CUMMINGS, WOOD, Jr., and FAIRCHILD join, dissenting:

We are dealing here with a race-conscious layoff plan, voluntarily adopted by a school board under heavy government fire for past discrimination and ratified by secret ballot by the teachers affected. What is most striking about this case is the kaleidoscope of legal scenery against which the facts have been projected at various times in the process. The adoption of the plan and its review by the district court and by the panel of this court all occurred at times when the Supreme Court was providing little guidance about the legal bounds of such a plan. It is therefore not surprising that in the district court the judge and the school board were looking over their shoulders at the "role model" theories espoused by the district court in Wygant v. Jackson Bd. of Educ., 546 F. Supp. 1195 (E.D.Mich. 1982). Britton, 593 F. Supp. 1223 (N.D.Ind. 1984). On appeal, the panel majority, for which I wrote, was most concerned with Janowiak v. Corporate City of South Bend, 750 F.2d 557 (7th Cir. 1984), vacated and remanded, ___ U.S. ___, 107 S.Ct. 1620, 95 L.Ed.2d 195 (1987), an affirmative action case in which the same district court that decided Britton had recently been reversed. The panel majority certainly did not rely on a role model theory and, in fact, expressly renounced reliance "on any particular theory of role modeling." Britton, 775 F.2d 794, 800 n. 8 (7th Cir. 1985). Subsequently, the Supreme Court reversed Wygant in a series of opinions, none of which commanded a majority, that present a confusing array of essentially new law. 106 S.Ct. 1842 (1986). Among other things, the plurality opinion soundly rejected the role model rationale. Soon thereafter, the Supreme Court decided four more cases in which it upheld the validity of race-conscious remedial plans and further elaborated on the standards for acceptance. Johnson v. Transportation Agency, ___ U.S. ___, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987); United States v. Paradise, ___ U.S. ___, 107 S.Ct. 1053, 94 L.Ed.2d 203 (1987); Local Number 93, Int'l Ass'n of Firefighters v. City of Cleveland, ___ U.S. ___, 106 S.Ct. 3063, 92 L.Ed.2d 405 (1986); Local 28 of the Sheet Metal Workers' Int'l Ass'n v. EEOC, ___ U.S. ___, 106 S.Ct. 3019, 92 L.Ed.2d 344 (1986). Because of the extreme fluidity of the law and the consequent striking shifts in the relevance of various facts, it would be much better practice to remand to the fact-finder — the district court — to determine in the first instance the disposition of this case in light of these recent Supreme Court decisions. I therefore respectfully dissent and join Judge Cummings and Judge Fairchild in their dissents.

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

Four of the five Justices voting to reverse in Wygant expressly rejected the lower courts' determinations that the goals of providing role models and remedying societal discrimination were sufficient to justify the challenged layoff provision. 106 S.Ct. at 1847-48 (plurality opinion); id. at 1854 (O'Connor, J., concurring). Seven Justices, however, stated (and the remaining two Justices did not disagree) that the elimination of the effects of a public body's own past or present discrimination is a constitutionally valid purpose for that body's use of a race-conscious remedy. Id. at 1848 (plurality opinion); id. at 1854-57 (O'Connor, J., concurring); id. at 1863 (Marshall, J., dissenting). Justice O'Connor, who cast the decisive fifth vote, summarized what she viewed as the areas of Court "consensus" in Wygant:

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

Id. at 1853. Adoption of remedial measures does not demand a contemporaneous finding by a court or other body that the public actor actually discriminated. Id. at 1848 (plurality opinion); id. at 1854-57 (O'Connor, J., concurring); id. at 1863 (Marshall, J., dissenting); id. at 1867 (Stevens, J., dissenting). As Justice O'Connor argues, requiring public employers to make findings that they had in fact illegally discriminated before they can undertake race-conscious remedies would obviously put a high price on remedial measures. Such employers would have a rough road to follow in fulfilling their constitutional duty to take affirmative steps to eliminate the continuing effects of past discrimination. Id. at 1855-56 (citing Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); Green v. New Kent County School Bd., 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968)). Of the eight Justices who comment on this issue in Wygant, those who demand the most of the employer would not require a dauntingly rigorous showing. They would demand only that, if the lawfulness of a plan is later challenged, the employer present the trial court with sufficient evidence to allow the court to determine "that the employer had a strong basis in evidence for its conclusion that remedial action was necessary." Id. at 1848 (plurality opinion).

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

Not only was the record in Wygant devoid of any evidence of past employment discrimination, but, in fact, there had been two judicial findings that the school board in Wygant had not engaged in past discrimination in employment. A Michigan court had found that it "`ha[d] not been established that the board had discriminated against minorities in its hiring practices. The minority representation on the faculty was the result of societal racial discrimination.'" Id. at 1845 (plurality opinion) (quoting Jackson Educ. Ass'n. v. Board of Educ., No. 77-011484CZ (Jackson County Cir.Ct. 1979)). Earlier, in a suit brought by laid-off minority teachers seeking to require the Jackson Board to observe the race-conscious preferential layoff provision, a federal district court concluded "that it lacked jurisdiction over the case, in part because there was insufficient evidence to support the plaintiffs' claim that the Board had engaged in discriminatory hiring practices prior to 1972." Id. at 1845 (plurality opinion) (discussing Jackson Educ. Ass'n. v. Board of Educ., No. 4-72340 (E.D.Mich. 1976)). No wonder Justice O'Connor felt no need to remand Wygant for a determination of how the layoff provision related to apparently non-existent past discrimination in employment.

The situation in South Bend was markedly different. The South Bend schools were racially segregated by statute until 1949-only five years before Brown v. Board of Education — and continued as a dual system at least into the mid-70's. The Office for Civil Rights (the "OCR") of the then Department of Health, Education and Welfare ("HEW") conducted on-site reviews of the South Bend schools in 1969 and 1975. Defendants' Exhibit ("Def. Ex.") M-3; Def. Ex. M-6. The OCR reviewed complaints it received about the South Bend School Corporation's discriminatory practices as well as information supplied by the School Corporation itself. Id. The OCR came down with a clear indictment of the School Corporation in a series of letters in 1975 and 1976. A letter dated March 13, 1975 described evidence that the School Corporation discriminated against minorities in the recruitment, hiring and promotion of teachers and that it maintained a dual school system in which predominantly black schools received substantially less financial and other support than predominantly white schools. Def. Ex. M-6. The OCR wrote again on October 6, 1975, bluntly conveying its finding that the School Corporation had violated Title VI of the Civil Rights Act of 1964 by creating racially identifiable schools and therefore had "an obligation to undertake sufficient remedial action to eliminate the vestiges of its racially discriminatory teacher assignment policies and practices." Def. Ex. M-3, at 2. This letter ordered the School Corporation to submit within forty-five days a plan to remedy its violations. By a letter dated March 8, 1976, the OCR specifically required that the plan include assurances that the School Corporation would maintain nondiscriminatory practices for the recruitment, hiring and assignment of teachers. Def. Ex. M-2, at 4.

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

The consent decree provided, inter alia, that "[t]he Board of School Trustees shall continue to pursue its present affirmative action hiring policies," Def. Ex. C-1, at 3, and report to the federal government for the next four years "the total faculty, by race, of the School Corporation," id. at 4. Thus, in 1980, when the provision at issue here was adopted, the effect of past discrimination against black teachers and job applicants was thought serious enough to warrant the imposition of affirmative action programs for hiring black teachers. These programs were to be monitored by the federal government until the end of 1983. Here, with plenty of record evidence of past discrimination, the district court should be accorded an opportunity to determine whether the level of minority hiring was closely related to the goal of correcting past discrimination.

The plurality opinion here seeks to deny much of this background by pretending that history began only in 1972 (or perhaps 1978). The plurality opinion cites hiring statistics achieved only under the federal lash in the 1970's as being somehow representative of the "past" in South Bend. This is like starting the history of slavery with the Emancipation Proclamation. The Supreme Court has repeatedly chastised the lower courts for ignoring history. The Court has charged school authorities with a continuing affirmative duty to eliminate all vestiges of past racial discrimination regardless of when the discriminatory acts took place. In Keyes v. School Dist. No. 1, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973), the Court stated:

The courts below attributed much significance to the fact that many of the Board's actions in the core city area antedated our decision in Brown. We reject any suggestion that remoteness in time has any relevance to the issue of intent. If the actions of the school authorities were to any degree motivated by segregative intent and the segregation resulting from those actions continues to exist, the fact of remoteness in time certainly does not make those actions any less "intentional."

Id. at 210-11, 93 S.Ct. at 2698. Similarly, in Green v. County School Bd., 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), the Court rejected a desegregation plan that would give all students the freedom to choose a public school because the plan did not fulfill the school board's "affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch." Id. at 437-38, 88 S.Ct. at 1693-94; see also Wygant, 106 S.Ct. at 1856 (O'Connor, J., concurring) (states have a "constitutional duty to take affirmative steps to eliminate the continuing effects of past unconstitutional discrimination") (emphasis in original); Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15, 91 S.Ct. 1267, 1275, 28 L.Ed.2d 554 (1971) ("The objective today remains to eliminate from the public schools all vestiges of state-imposed segregation.") (emphasis added).

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

Under modern conditions, we may safely assume that a dual school system presents an uninviting prospect to black job applicants. When a school board maintains racially identifiable schools, provides the black schools with less financial and other support than the white schools and staffs the black schools with black teachers who are given much less opportunity for promotion than are white teachers in the white schools, the school board sends a message that "blacks need not apply" for jobs. Systems where blacks are treated equally obviously present more attractive opportunities. The School Corporation failed to dismantle its segregated system, ignoring the fact that "[m]ore than twenty years ago the Supreme Court expressed impatience for what it considered to be intolerable delays in the face of its clear and unambiguous decisions," Wade v. Hegner, 804 F.2d 67, 72 (7th Cir. 1986). Because of this foot dragging, the trier of fact could reasonably adopt a working hypothesis that the resulting atmosphere of discrimination produced fewer black teachers than would have been the case under a constitutional regime.

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

An employer's reputation for discrimination may discourage minorities from seeking available employment. . . . In these circumstances, affirmative race-conscious relief may be the only means available "to assure equality of employment opportunities and to eliminate those discriminatory practices and devices which have fostered racially stratified job environments to the disadvantage of minority citizens."

Local 28 of the Sheet Metal Workers' Int'l Ass'n v. EEOC, ___ U.S. ___, 106 S.Ct. 3019, 3036-37, 92 L.Ed.2d 344 (plurality opinion) (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800, 93 S.Ct. 1817, 1823, 36 L.Ed.2d 668 (1973)). In Sheet Metal Workers, the plurality relied on, inter alia, the trial court's "determination that the union's reputation for discrimination operated to discourage nonwhites from even applying for membership," to uphold a twenty-nine percent minority membership goal.

In the school desegregation context, the Supreme Court has held that where a court finds that a school board has intentionally segregated students on the basis of race in a "meaningful portion" of a school system, any other segregation existing in the school system will be presumed the result of unlawful discrimination. Keyes, 413 U.S. at 208, 93 S.Ct. at 2697. The school authorities will then bear the burden of rebutting the prima facie case of unlawful segregative intent. The Court recognized that "there is high probability that where school authorities have effectuated an intentionally segregative policy in a meaningful portion of the school system, similar impressible considerations have motivated their actions in other areas of the system." Id.

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

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

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

It occurred at a time in the mid '70's following inquiries by State authorities and the Federal Justice Department concerning the fact there was — there were racially identifiable schools within the system and the focus of the entire community reflected by the Board of Trustees and the administration centered upon rectifying that situation.

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

Trial Transcript at 12 (Apr. 26, 1984).

Hollis Hughes, Jr., a member of the Board of Trustees at the time of the adoption of the hiring goal, testified at trial that he had believed "there was [a] need for an Affirmative Action policy" at the time Resolution 1020 was adopted. Id. at 89. He said that the Board had discussed at its meetings the fact that racially identifiable schools existed, id. at 91; that the minority teachers were concentrated along with minority students in racially identifiable schools, id. at 92; that attempts were made "in approximately '76 to correct some of that imbalance, although not very strong attempts it appeared," id.; that as a member of the Board he was familiar with the federal government's concerns in the late 1970's over the discriminatory assignment policies, id.; and that "the School Corporation was notified in May of 1978 by the [State of Indiana] Office of Schoolhouse Planning that it could not proceed with any construction of new facilities until such time as it addressed the issue of racially imbalanced schools in the district," id. at 93. Hughes testified that the layoff provision was intended to preserve the affirmative action hiring gains. Id. at 95-96. He also testified about the origins of the affirmative action hiring program: "the evolution of the Resolution 1020 started with a former Board of Trustees member, Mrs. Eugenea Braboy, who upon leaving the Board made a very strong statement to the effect that racial imbalance and the issue of racial improprieties within the school district needed to be addressed." Id. at 90. The School Corporation also introduced at trial documentary evidence of its remedial purpose, including the correspondence between HEW and the School Corporation and minutes of meetings at which the school board heard testimony that qualified black applicants for teaching positions had been refused employment because of their race. Def. Ex. K-2.

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

The plurality erroneously suggests that only statistical comparisons of hiring percentages with percentages of qualified applicants within the relevant labor pool are probative of job bias. Of course, courts routinely consider other, more direct, evidence of discrimination and, in fact, permit the use of statistical evidence largely because it is often the only evidence available. As the Supreme Court noted, "Statistics showing racial or ethnic imbalance are probative . . . only because such imbalance is often a telltale sign of purposeful discrimination. . . . `In many cases the only available avenue of proof is the use of racial statistics to uncover clandestine and covert discrimination by the employer or union involved.'" International Bhd. of Teamsters v. United States, 431 U.S. 324, 339 n. 20, 97 S.Ct. 1843, 1856 n. 20, 52 L.Ed.2d 396 (1977) (quoting United States v. Ironworkers Local 86, 443 F.2d 544, 551 (citing cases), cert. denied, 404 U.S. 984, 92 S.Ct. 447, 30 L.Ed.2d 367 (1971)). Although we have in the record minority teacher percentages ( e.g., 3.5% in 1963-64) that are, at least, strongly suggestive, the record does not seem to contain labor pool statistics. We do not know whether these statistics exist or what they would reveal if they do exist. This is an inquiry which the trier of fact could reasonably undertake on remand. The district court could also determine exactly how probative of past employment discrimination were the other facts of record, many of which we have recited here.

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

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

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

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

I respectfully dissent.

[70] FAIRCHILD, Senior Circuit Judge, with whom Circuit Judges CUMMINGS, WOOD, Jr., and CUDAHY join, dissenting.

I address one additional facet of the case which I find troubling.

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

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

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

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

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

I am aware that in Wygant the majority of the justices of the Supreme Court focused on the formula as is being done here. Respectfully, however, it seems to me that there is room to address whether, and to what extent, the departures from strict seniority which actually occurred were justified as a remedy for a level of minority representation held down by past discrimination.