WYGANT v. JACKSON BOARD OF EDUCATION 476 U.S. 267 (1986)

Although the Wygant decision did not produce a majority opinion, it advanced the growth of constitutional doctrine governing affirmative action. A school board and a teachers' union had approved an affirmative action plan as a response to complaints of past racial discrimination in the hiring of teachers. To maintain minority-hiring gains in the event of a contraction in teacher employment, the plan protected some minority teachers against layoffs. When some minority teachers were retained while some nonminority teachers with greater seniority were laid off, the laid-off teachers challenged the layoff provision in federal court. By a 5–4 vote, the Supreme Court held the provision a violation of the equal protection of the laws.

Justice lewis f. powell, for four Justices, concluded that the appropriate standard of review was strict scrutiny. Using this standard, he rejected the lower courts' two justifications for the layoff provision: as a means of keeping minority teachers to serve as role models for students and as a remedy for past societal discrimination. He agreed that past discrimination by the school board itself was a compelling state interest that would justify some race-conscious remedies, assuming that the board had evidentiary support for determining that remedial action was warranted. Here no such determination had been made, but Justice Powell was unwilling to remand the case for exploration of this issue. Even if the purpose were remedial, he concluded, the layoff provision was an impermissible remedy because it was too burdensome on innocent nonminority teachers. Preferential hiring, he intimated, would be acceptable; layoffs, however, placed the whole burden on particular individuals.

Justice sandra day o'connor concurred separately to emphasize that a public employer that wished to adopt an affirmative action plan need not make a contemporaneous finding of past wrongdoing. Such a requirement would undermine the employer's incentive to meet its civil rights obligations. Rather, the employer could show "a disparity between the percentage of qualified blacks on a school's teaching staff and the percentage of qualified minorities in the relevant labor pool" that would support a prima facie case of employment discrimination under Title VII of the civil rights act of 1964. Justice byron r. white added a brief concurrence emphasizing the difference between a hiring preference and a preference in avoiding layoffs.

Justice thurgood marshall dissented, joined by Justices william j. brennan, jr. , and harry a. blackmun. Marshall argued that the case should be remanded to the trial court for further findings about the board's past discrimination, but also disagreed with the majority Justices' disposition on the merits. The board's interest in preserving a valid policy for affirmative action in hiring, he argued, was a sufficient state purpose, and the layoff provision was sufficiently narrowly tailored to pass the test of constitutionality. Justice john paul stevens also dissented, arguing that the board's interest in educating children justified measures to assure a racially integrated faculty, irrespective of any showing of past discrimination.

Wygant was a way station on the road to richmond v. j. a. croson co. (1989), in which a majority of the Supreme Court explicitly adopted the rhetoric of strict scrutiny for reviewing state-sponsored affirmative action programs. Justice Powell's and Justice O'Connor's opinions, taken together, also provided a "how to do it" manual for public employers that want to adopt affirmative-action plans for achieving integrated work forces.

Kenneth L. Karst
(1992)

Bibliography

Karst, Kenneth L. 1989 Belonging to America: Equal Citizenship and the Constitution, pages 158–167. New Haven, Conn.: Yale University Press.

Sullivan, Kathleen 1986 Sins of Discrimination: Last Term's Affirmative Action Cases. Harvard Law Review 100:78–98.