VAN GRAAFEILAND, Circuit Judge:
This is an appeal from an order of the United States District Court for the Southern District of New York which directed the Board of Education of the City of New York to "excess" supervisory personnel in accordance with a formula imposing racial quotas upon the excessing process. Excessing rules provide in brief that when a position in a school district is eliminated, the least senior person in the job classification used to fill that position shall be transferred, demoted or terminated. It is a system which recognizes the value of pedagogical experience and seniority, and its use is mandated by the New York Education Law
Fortunately for both reader and writer, we find it unnecessary to recount at length the history of this extended litigation. A summary of the proceedings which now bring the parties to our Court for the fourth time
This civil rights class action was begun in 1970 for the purpose of correcting an under-representation of minorities in supervisory positions in the New York City school system. Employment qualification tests, one of the alleged causes of such disproportion, were thereafter invalidated by the District Court as not job-related; and an interim system of job assignment was created by court order, the details of which are spelled out in our 1974 decision. Because this interim plan provided in part that job assignment would precede licensing and that permanent appointment would follow on-the-job evaluation, it became necessary for the Board of Education to formulate new rules concerning date of appointment for excessing purposes. These rules, which were submitted to the District Court for approval, provided in substance that, in determining seniority for excessing purposes, supervisors would be considered appointed as of the date of their assignment.
As Judge Tyler graphically pointed out during one of the many arguments below, this lawsuit has been "like a conflagration that one puts out in one department and then suddenly a new fire breaks out somewhere else." It was not surprising, therefore, that this submission by the Board set new flames burning. Plaintiffs promptly opposed the use of any excessing rules on the ground that minority supervisors recently hired would have the least seniority. This prompted intervention by the Council of Supervisors and Administrators of the City of New York, Local 1, SASCO, AFL-CIO as the representative of all supervisory personnel, including those licensed and appointed prior to the court-ordered interim plan, those licensed and appointed pursuant to such plan and those assigned but not yet appointed. This Union opposed the use of racial quotas and supported the continued use of traditional excessing procedures. Amicus briefs were also filed by the New York City School Boards Association, Inc. whose interest lay in seeing that the powers and prerogatives of the thirty-two school districts within the New York system were not eroded by the court-created excessing plan.
Proposals and counterproposals followed closely upon each other until Judge Tyler handed down an order on November 22, 1974, adopting the racial quota concept. This order was amended on February 7, 1975, and it is the amended order which we
Although the order does not specifically so provide, the inevitable consequence of the foregoing provisions is that if racial quotas prevent the excessing of a Black or Puerto Rican, a white person with greater seniority must be excessed in his place.
Before the merits of the appeals taken by the Board of Education and the Council of Supervisors can be considered, several preliminary roadblocks raised by plaintiffs must first be removed. Plaintiffs contend that the appeals are not timely. They say that the order of February 7, 1975, merely clarified the order of November 22, 1974, and that therefore appeals should have been taken from the former, not the latter. We find no merit in this contention. Following the issuance of the November 22 order, the Board of Education requested a modification "concerning excessing." A hearing was held, and some modifications were made. We think that the Board's application, addressed sufficiently to the substance of the November order to require a contested rehearing, effectively transferred the mantle of finality from the November to the February order and that appeals from the latter order were therefore timely. Leishman v. Associated Electric Co., 318 U.S. 203, 63 S.Ct. 543, 87 L.Ed. 714 (1943); Sleek v. J. C. Penney Co., 292 F.2d 256 (3d Cir. 1961).
Plaintiffs also point out that the order appealed from will be in effect only until November 30, 1977, by which time "it is hoped" the situation regarding minority representation will have changed. Plaintiffs urge that we not concern ourselves, as an appellate court, with this short-term interim relief. In our 1974 decision, at page 825, we expressed concern about the length of time this litigation had remained in an unfinished state and the possibility that "the interim tail" would end up wagging the dog. Another year has passed; the lawsuit has not been terminated, and new orders continue to emerge. Those supervisors who may lose their jobs between now and November 30, 1977, will be little comforted by the knowledge that it was merely a temporary order that put them out of work. Where the basic rights of such innocent non-litigants are so substantially involved, we believe we should, as we have twice before, review what has been done.
We thus come to the main question on this appeal, viz.: does a facially neutral excessing plan, which operates on the concept of "last hired-first fired," discriminate against minorities who are disproportionately affected? We agree with the Courts of Appeals for the Third, Fifth and Seventh Circuits that the answer to this question must be "no." See Waters v. Wisconsin Steel Works of International Harvester Co., 502 F.2d 1309 (7th Cir. 1974), petition for cert. filed, 44 U.S.L.W. 3011 (Apr. 25, 1975); Jersey Central Power and Light Co. v. Local Union, 327, I.B.E.W., 508 F.2d 687 (3d Cir. 1975), petitions for cert. filed, 44 U.S.L.W. 3084 (Aug. 1, 1975), 44 U.S.L.W. 3207 (Sept. 24, 1975); Watkins v. Steel Workers Local No. 2369, 516 F.2d 41 (5th Cir. 1975).
Our brothers in the Third and Seventh Circuits have examined the legislative history
That plaintiffs herein are proceeding under 42 U.S.C. §§ 1981, 1983 does not render defendants' seniority system any more susceptible to attack. Congress has clearly placed its stamp of approval upon seniority systems in 42 U.S.C. § 2000e-2.
The relief fashioned by the court below was not designed to benefit only those affected by the employer's prior discriminatory conduct
Moreover, the concern which we expressed in Kirkland v. New York State Department of Correctional Services, 520 F.2d 420 (2d Cir. 1975), about the "bumping" effect of a quota "upon a small number of readily identifiable" individuals finds equal cause for expression in the situation which now confronts us. We are advised that in some of the school districts employees will be excessed from groups containing as few as two or three persons. To require a senior, experienced white member of such a group to stand aside and forego the seniority benefits guaranteed him by the New York Education Law and his union contract, solely because a younger, less experienced member is Black or Puerto Rican is constitutionally forbidden reverse discrimination.
If a minority worker has been kept from his rightful place on the seniority list by his inability to pass a discriminatory examination, he may, in some instances, be entitled to preferential treatment — not because he is Black, but because, and only to the extent that, he has been discriminated against. The "freedom now" and "rightful place" doctrines create constructive or fictional seniority to put minority employees in the approximate spot on the seniority list that they would have occupied had they not been the subject of discrimination. Local 189, United Papermakers v. United States, supra, 416 F.2d at 988. The former contemplates the displacement of white workers where necessary; the latter involves only the filling of vacancies. We have followed the "rightful place" doctrine to the extent of using plant seniority, instead of departmental seniority, where departmental discrimination has prevented or delayed the transfer of minority workers. United States v. Bethlehem Steel Corp., 446 F.2d 652 (2d Cir. 1971).
There is disagreement among the Circuits as to how far these concepts should be carried in creating fictional dates of employment for minority workers. Cf. Franks v. Bowman Transportation Co., 495 F.2d 398 (5th Cir. 1974), cert. granted, 419 U.S. 1050, 95 S.Ct. 625, 42 L.Ed.2d 644 (1975), argued November 3, 1975, 44 U.S.L.W. 3273; Meadows v. Ford Motor Company, 510 F.2d 939 (6th Cir. 1975). Upon remand of this case, the District Court may find it unnecessary to await resolution of this dispute by the Supreme Court. The defendant Board of Education has indicated its willingness to accord constructive seniority to any minority supervisor who failed an examination since invalidated as discriminatory by giving him a date of appointment which is the mean appointment date of those who passed the examination. We believe this offer of compromise which appears to be acceptable to the intervening Union should have been adopted by the District Court.
A reversal of the order appealed from renders moot the controversy between the Board of Education and the community districts as to whether intra-district as well as inter-district racial quotas should be used and applied in the excessing process. We note that the New York Court of Appeals has specifically held that the Board of Education has the power to establish uniform City-wide excessing rules. Council of Supervisors and Administrators v. Board of Education, 35 N.Y.2d 861, 363 N.Y.S.2d 581, 322 N.E.2d 273 (1974) (mem.). Should the question of excessing authority vis-a-vis the community districts and the Board of Education again arise in this proceeding, we trust that the District Court will defer to the New York State courts' primary concern and expertise in this matter, in so far as it is feasible to do so.
Reversed and remanded for further proceedings in accordance with this opinion.
OAKES, Circuit Judge (dissenting):
To my mind the issues are both more simple and more complex than the majority states. They are more simple in that what we are here concerned with is the fashioning of equitable relief under 42 U.S.C. § 1981
This litigation was begun in September of 1970, challenging the examinations used to select principals and other supervisory personnel in the city school system on the basis that the examinations discriminated unconstitutionally against minority groups. It was brought under 42 U.S.C. §§ 1981, 1983, and not under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. But it is interesting to note that Section 703(h) of the latter, 42 U.S.C. § 2000e-2(h),
Meanwhile, however, the Board of Education had directed community school boards to fill supervisory vacancies in accord with the "transfer list" provisions of the union contract. This resulted in giving priority to those supervisors who had acquired seniority with licenses obtained under the old discriminatory examination system. On December 27, 1973, Judge Mansfield, acting as district judge, held that "the transfer provisions of the [union] agreement, by giving a preference to senior supervisory personnel, violates our Orders." Recognizing that timing in the framing of equitable decrees seeking to remedy past discrimination is of the utmost importance, however, he was then extremely careful to say that
No appeal was taken from this order and Judge Tyler, to whom the case was assigned, declined by order of February 25, 1974, to rescind or alter it. The union's appeal from Judge Tyler's February 25, 1974, order was dismissed as not appealable. Chance v. Board of Education (Chance III), 497 F.2d 919 (2d Cir. 1975).
In July, 1974, the Board of Education submitted proposed rules to govern "excessing" of supervisors. These would have required that persons whose positions are to be abolished, and those junior to them holding similar or lower positions, be relocated, demoted or terminated, as the case might be, in order of reverse seniority. Appellees opposed the rules on the basis that, like the transfer provisions of the union agreement, the proposed excessing rules would conflict with the remedial purposes of the orders affirmed in Chance II which had held the qualifying exam to be unlawful and had ordered development of a new selection system. After five hearings and assorted submissions Judge Tyler issued an order on November 22, 1974, which, in all material respects, is identical to the order of February 7, 1975, here under appeal. This order permits the use of seniority excessing rules only insofar as the proportion of blacks and Hispanics "excessed" does not exceed the proportion of black and Hispanic supervisors presently employed in each school district and the school system as a whole. His order was made effective retroactively to July 30, 1974, and prospectively until November 30, 1977.
On timely application of the Board of Education the order was modified in certain respects not material here on February 7, 1975. This appeal was brought from that order. I should add that I agree with the majority's view that the February order is final and appealable.
In evaluating the propriety of Judge Tyler's excessing quota order, it is necessary to consider three separate questions: first, whether the order is unconstitutional; second, whether the order is forbidden by statute under 42 U.S.C. § 2000e-2(h), see note 6 supra; third, whether, if not prohibited by statutory or constitutional law, the order is within the equitable authority of the trial court. These issues will be discussed in order below.
I think the remedial relief afforded was constitutionally allowable for the reasons stated so well by my brother Mansfield, dissenting from the denial of rehearing en banc in Kirkland v. New York State Department of Correctional Services, Nos. 74-2116, 74-2258 (2d Cir. Dec. 10, 1975), slip op. 1003. I need add to his remarks only that it would have been constitutionally permissible, and I think also within the district court's powers, to base "excessing" on some principle other than racial percentage—merit, constructive seniority, sharing of the available work or the like. Just as veterans' preferences permissibly reward those for service to their country, given hiring (or firing) preferences favoring those of a minority race (or I would add the female gender) who have been victimized by discrimination until a fair equality of treatment is achieved seem to me to be constitutionally proper. The purpose of the order is to protect, to a limited extent, the black or Hispanic teachers who have recently been made supervisors in retention of their employment, not because they are black or Hispanic but because they have previously been discriminated against by unconstitutional examinations. See Nickel, Preferential Policies in Hiring and Admissions: A Jurisprudential Approach, 75 Colum.L.Rev. 534, 555 (1975). See also Ely, The Constitutionality of Reverse Racial Discrimination, 41 U.Chi.L.Rev. 723, 727 (1974). But cf. Greenawalt, Judicial Scrutiny of "Benign" Racial Preference in Law School Admissions, 75 Colum.L.Rev. 559, 571-73 (1975). On the other side of the scale, the white supervisory personnel disadvantaged by the district court's order would not, it must be presumed from the decisions in Chance I
Complaints of reverse discrimination have to be evaluated constitutionally with careful regard to the facts of each case, since any affirmative action to correct past discriminatory practices may result in what seems to be unfairness to those who have benefited by those practices. The complaint of "reverse discrimination" should not be allowed to obscure the need for action to be taken to reverse, or negate, the effects of unlawful discrimination found to exist, as in this case. The focus of our concern should be upon whether there is an accurate method of redressing past discrimination in such a way as to benefit those who have been discriminated against only at the expense, if at all, of those who gained undue advantage by the discrimination. If an accurate method cannot be had, then we may examine whether some rougher form of relief, as for instance a percentage preference, achieves a measure of fair redress at no undue expense.
Before reaching these last two questions it is necessary here to respond to the majority's view that Judge Tyler's order was forbidden as a matter of law by Section 703(h) of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2(h), note 6 supra. In this regard it may be conceded that the majority appears to be upon firmer ground than in its constitutional argument. The majority relies upon Waters v. Wisconsin Steel Works of International Harvester Co., 502 F.2d 1309 (7th Cir. 1974), petition for cert. filed, 43 U.S.L.W. 3505 (U.S. Mar. 18, 1975); Jersey Central Power & Light Co. v. Electrical Workers Local 327, 508 F.2d 687 (3d Cir. 1975), petition for cert. filed, 44 U.S.L.W. 3084 (U.S. Aug. 1, 1975), and Watkins
Our present case is, of course, quite different from the Watkins, Waters and Jersey Central cases. We have before us the history of a discriminatory practice which has resulted in a prolonged failure to hire black and Hispanic supervisors into the New York school system. See note 7 supra. As part of the remedial effort to bring minority supervisor applicants who have suffered past discrimination into the New York schools, and to maintain them there, and as a remedy to offset the loss of unknown years of deserved seniority, I submit that it is permissible to alter the "bona fide" seniority system of the school system even if that seniority system does not itself independently constitute an unlawful employment practice. This conclusion, that remedial authority may require action to be taken which substantive law would not itself independently require, is by no means a novel concept in the jurisprudence of equal protection. See, e. g., Swann v. Charlotte-Mecklenburg Board of Education, supra, 402 U.S. at 17, 31, 91 S.Ct. 1267. In fact, in my view the majority opinion in this case has itself conceded this principle, at least implicitly, by directing the district court to consider the use of "constructive seniority" to afford relief to minority workers in the class of plaintiff Chance. Clearly the grant of such artificial seniority is but a construct for interfering with what the majority insists is a "bona fide" seniority system. That is to say, the majority's continued insistence upon the sanctity of the seniority system which it deems "bona fide" is inconsistent with a willingness to grant remedial interference with that system in the form of "constructive seniority."
Having crossed what I believe to be the misconceived hurdle of Title VII, and recognizing the continuing integrity of the remedial powers of the district court, we are still left with the difficult problem whether the particular remedy chosen by the district court is reasonably designed to help those who have suffered from discrimination without unduly harming others. At this level of consideration it is apparent that the district judge faced several choices. He could have followed the approach suggested by the majority, which would grant constructive seniority to those in Chance's class back to the mean appointment date of persons who took and passed the discriminatory exam which persons like Chance took but failed. Were Chance's class the only one involved in this litigation this remedy would appear to represent a sufficient conciliation of the interests of the previously discriminated and previously favored employees. But see note 3 supra. But the present suit involves another (and much larger) class, composed of persons like plaintiff Mercado who never took the discriminatory examinations but who were discouraged from taking them by knowledge of their discriminatory characteristics. The district court could well have considered that it was necessary to give constructive seniority to members of Mercado's class, as well as Chance's. See Note, Last, Hired, First Fired Layoffs and Title VII, supra, 88 Harv.L.Rev. at 1557-60. This seems especially likely in view of the fact that the members of Mercado's class far outnumber those in Chance's class, see note 5 supra, and that a remedy for the latter alone would therefore be quite inadequate for the litigation as a whole. But in many cases it would be difficult, if not impossible, fairly to compute constructive seniority for these persons who were discouraged from ever applying to take the discriminatory examination. The use of a few broad parameters for determining constructive seniority has been suggested in such a case. 88 Harv.L.Rev. at 1559. One approach might be to give members of Mercado's class seniority equal to the average seniority of nonminority workers of the same age. Id. Another possibility would be to assume that persons in Mercado's class were interested in becoming supervisors (which seems likely because they have now applied for these jobs)
A third possible remedy, the one chosen by the district court here, avoids the considerable administrative difficulties which may well exist under the constructive seniority method once, as seems necessary to me, the problem of Mercado's class, or persons mentioned in note 3 supra, is considered. Use of a quota for limiting the layoffs of minority supervisors is an easily implemented device which provides substantial protection for both of the discriminated classes in this suit. It is true that the measure of justice afforded by the quota technique may in some instances be considerably rougher than that obtained by the constructive seniority approach.
In summary, I believe that the three important questions before us in this case have been incorrectly decided by the majority. The use of quotas as a remedial limitation on the layoff of minority personnel hired as the result of court-ordered changes in discriminatory employment practices does not violate the Constitution. Nor do such quotas, when they are used as a remedy for past discriminatory practices, violate Section 703(h) of Title VII, 42 U.S.C. § 2000e-2(h). Finally, the quality of the justice obtained by the use of the quota is not so rough that, considering the imperfection of the alternative remedies and the administrative convenience of the quota, the order therefor was an abuse of discretion.
I therefore dissent.
ON REHEARING
PER CURIAM:
Following our original opinion in this case a petition for rehearing and suggestion for hearing en banc was timely filed by the plaintiffs-appellees. While such petition was under consideration by the court, another panel decided Acha v. Beame, 531 F.2d 648 (2d Cir. 1976), and the Supreme Court decided Franks v. Bowman Transportation Co., ___ U.S. ___, 96 S.Ct. 1251, 47 L.Ed.2d 444, 44 U.S.L.W. 4356 (1976). Both these cases support the relief of constructive seniority afforded by this court to the plaintiffs in the Chance class, those who took and failed discriminatory supervisory examinations. They also bear on the relief to be afforded to the members of the Mercado class, so-called, those who "have failed to apply for or take such supervisory examinations because they reasonably believed the supervisory examination to be discriminatory and unrelated to job performance." Chance v. Board of Examiners, 70 Civ. 4141 (S.D.N.Y. May 21, 1973) (order of Mansfield, J.), at 7. Accordingly we modify so much of our prior decree as relates to the Mercado class and order that the case be remanded to the district court with directions to accord constructive seniority to the members thereof who have heretofore established or can establish by the usual preponderance of the evidence that they qualify as such.
FootNotes
An example of a court's broad utilization of those powers in connection with a facially neutral departmental seniority plan which froze black employees "into a discriminatory caste" is found in Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364, 1373 (5th Cir. 1974), where the court said: "The principle of the illegality of a facially neutral seniority system superimposed on a history of employment discrimination is so well settled that extended discussion is unnecessary." See generally Note, Last Hired, First Fired Layoffs and Title VII, 88 Harv.L.Rev. 1544 (1975).
Although Judge Mansfield's order refers to Puerto Rican members of the discriminated class, I have followed the usage of the parties in their briefs and used the term "Hispanic" to refer to these persons.
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