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David Joles/Associated Press
‘The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Chief Justice
John Roberts
famously wrote in 2007. Yet too many institutions continue to discriminate in the name of remedying discrimination. The latest example is Minneapolis Public Schools.
The new Minneapolis teachers collective-bargaining agreement requires that layoffs be based on seniority—also known as “last-in, first-out”—if positions have to be cut for financial reasons. But minority teachers tend to be younger and less experienced than white teachers. So the contract exempts members of an “underrepresented group” from the seniority layoff rule.
School districts ought to hire and fire based on job qualifications and performance, which would prevent an unintended disparate impact on minorities. But unions oppose personnel decisions based on merit because this could undermine labor solidarity. Minneapolis is instead discriminating by race.
The teachers union contract appears to violate the Constitution, and in particular the Supreme Court’s Wygant v. Jackson Board of Education (1986) precedent. In that case a five Justice majority said a school district’s race-based layoffs violated the Constitution’s equal protection clause.
But the Justices split on whether and when racial bias could be used in personnel decisions. Four Justices in the majority held that remedying past discrimination by the school district could constitute a compelling government interest that justifies racial bias if the district were to provide concrete evidence of its past discrimination.
The Minneapolis teachers contract appears to lean on this plurality opinion. It states that the exception to the senior layoff rule is intended to “remedy the continuing effects of past discrimination” and that “past discrimination by the district disproportionately impacted the hiring of underrepresented teachers.” If the district is sued, it will have to substantiate this claim.
It may also be hoping to dodge strict scrutiny legal review by not explicitly referring to racial classifications. The undefined term “underrepresented” could be interpreted to include low-income teachers. But what matters is how the rule is applied.
As one example, the March 2021 Covid spending bill established a program to forgive loans for “socially disadvantaged” farmers. The Department of Agriculture interpreted this to include only individuals “who are one or more of the following: Black/African American, American Indian, Alaskan native, Hispanic/Latino, Asian, or Pacific Islander.” Federal courts blocked the program.
Most Justices in Wygant seemed to consider racial bias to be less invidious in hiring than firing decisions. But in either case, similarly situated individuals are denied equal opportunity and protection under the law. When institutions favor certain racial groups, they discriminate against individuals of other groups.
This is certainly true in university admissions. The Court’s Grutter (2003) decision held that creating a more diverse student body is a compelling government interest that justifies racial preferences that don’t “unduly harm nonminority applicants” (our emphasis).
The Court this autumn will have a chance to revisit Grutter’s faulty logic in challenges to the “race-conscious” admissions at Harvard and the University of North Carolina. The Minneapolis teachers contract underscores why the Justices need to state clearly that racial preferences are always constitutionally forbidden.
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Appeared in the August 18, 2022, print edition as ‘Minneapolis Discriminates by Race.’
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