LEXSEE 104 Harv. L. Rev. 1917

Copyright ©  1991 The Harvard Law Review Association.
Harvard Law Review 

JUNE, 1991 

104 Harv. L. Rev. 1917 

LENGTH: 9676 words 

NOTE: RACE-BASED FACULTY HIRING AND LAYOFF REMEDIES IN SCHOOL DESEGREGATION CASES 

SUMMARY: 
  ...  The Supreme Court has long held that faculty desegregation is an indispensable part of the school desegregation process. ... Circuit courts have disagreed over whether students' constitutional rights in desegregation cases are broad enough to justify faculty quotas and whether hiring or layoff remedies should be imposed despite their interference with other rights and interests. ... By contrast, in Oliver v. Kalamazoo Board of Education the Sixth Circuit defined students' constitutional rights and the scope of permissible remedies more narrowly and thus rejected both a faculty quota tied to the minority student population and preferential layoffs.  The court invalidated the quota on the ground that students have no constitutional right to a faculty with any particular racial composition and are entitled only to the school board's "'sustained good faith effort to recruit minority faculty members.'" ...  Two theories support the argument that faculty hiring and layoff remedies may help eliminate the effects on minority students of a school system's discriminatory employment practices. ...   

TEXT: 
 [*1917]  The Supreme Court has long held that faculty desegregation is an indispensable part of the school desegregation process.   n1 But it has never made clear the scope of permissible judicial remedies involving teachers once de jure segregation has been found.  Although the Court has upheld district court orders requiring school boards to reassign existing staff so that no school is racially identifiable by the composition of its faculty,   n2 it has not decided whether federal judges can also impose remedies designed to maintain or increase the number of minority teachers in the school system as a whole.  
When court-ordered desegregation moved north and west in the 1970s, district judges in several cases found that school boards had engaged in racially discriminatory hiring practices.  In order to vindicate minority students' constitutional right to attend school in a system free of the effects of past discrimination,   n3 some judges imposed permanent faculty quotas designed to create racial parity between the school system's teaching staff and the student or general population.  In addition, when faculty reductions threatened to diminish the ranks of newly hired blacks   n4 in the early 1980s, judges ordered race-based layoffs that overrode the seniority rights of white teachers.   n5 In 1986 

 [*1918]  the Supreme Court invalidated under the equal protection clause a voluntarily adopted preferential layoff policy.   n6 Nonetheless, hiring and layoff orders remain in effect in some de jure segregation cases.   n7 
Court orders mandating racially representative faculties raise difficult questions about the nature of students' rights once a school system has been found unconstitutionally segregated and about the appropriate scope of desegregation remedies.  Circuit courts have answered these questions differently.  Emphasizing students' right to a school system free of the vestiges of segregation, the First Circuit has upheld teacher quotas and preferential layoffs.   n8 In contrast, the Sixth Circuit has rejected permanent quotas on the ground that students have no right to a faculty with a particular racial balance, and it has disallowed race-based layoffs in part by emphasizing the seniority rights of white teachers.   n9 As more teachers challenge faculty desegregation remedies   n10 and school districts subject to such orders seek judicial determinations that they have achieved unitary status -- including unitariness with respect to faculty   n11 -- the need for a reasoned approach to these issues increases.  
This Note offers a framework for analyzing hiring and layoff remedies in de jure cases.  Part I discusses Supreme Court decisions concerning teacher desegregation and describes the faculty quotas and preferential layoff plans that some district courts have imposed.  Part 

 [*1919]  II addresses the interrelated issues of right and remedy presented in the circuit court decisions.  It argues that although minority students' rights can be defined broadly enough to support faculty hiring and layoff remedies, such remedies are inappropriate when they consist of inflexible quotas, fail to consider practical limitations, or unduly burden third parties, most notably teachers.  Drawing upon the multifactored test for race-conscious judicial remedies announced in United States v. Paradise,   n12 the Note proposes a flexible approach to formulating and evaluating compliance with hiring and layoff remedies that takes these considerations into account.  
I.  THE DEVELOPMENT OF FACULTY DESEGREGATION REMEDIES 
Until approximately fifteen years after the Brown v. Board of Education   n13 decisions of 1954 and 1955, faculty desegregation meant only the eradication of segregative teacher assignments.  Before 1954, Southern school districts often assigned black teachers only to schools attended by black students and white teachers only to schools attended by white students.   n14 Although Brown did not clearly mandate racially mixed faculties,   n15 as formerly all-white schools enrolled black students in the 1960s, district courts began to recognize that full compliance with Brown required faculty desegregation as well.   n16 But efforts to place black teachers in formerly all-white schools faced even more intense opposition than did student reassignments,   n17 and ten years after Brown the teaching staffs in many Southern school systems remained completely segregated.   n18 
In 1965 the Supreme Court first recognized black students' standing to challenge segregative faculty assignments.   n19 Contemporary 

 [*1920]  commentators argued that faculty segregation denied black students equal educational opportunities both because it perpetuated an impermissible stigma by isolating black teachers and students   n20 and because black teachers, due to their own inadequate training in segregated schools, were less capable than white teachers.   n21 Lower courts responded with a variety of remedies including race-conscious teacher assignment plans,   n22 and in 1969 the Supreme Court upheld an order requiring a school board to reassign faculty so that the ratio of black to white teachers in each school substantially reflected the racial composition of the faculty in the system as a whole.   n23 The Court concluded that, although racially balanced faculties are not constitutionally required, numerical assignment remedies are permissible to eliminate the effects of prior teacher segregation.   n24 
Despite the Supreme Court's approval of race-conscious assignment remedies, which determined where black and white teachers would teach, lower courts in the South generally did not extend the Court's logic to impose race-conscious hiring remedies, which might determine whether substantial numbers of blacks would teach at all.  Although the Fifth Circuit created preferential recall rights for black teachers displaced by school closings and consolidations incident to desegregation,   n25 judges stopped short of ordering school boards to maintain a particular percentage of minority faculty.  They instead held that hiring and promotional decisions should be race-neutral and that staff reductions must be based on "objective and reasonable non-discriminatory 

 [*1921]  standards."   n26 Race, some decisions suggested, is an impermissible criterion for determining either a teacher's qualifications or a school district's needs because racial hiring classifications mask illegitimate stereotypes about both teachers and students.   n27 
In contrast, after court-ordered desegregation moved north and west in the 1970s, other courts interpreted the duty to desegregate teachers to include the obligation to achieve racially representative faculties through race-based hiring.  District courts found that several school districts not only assigned black teachers to predominantly black schools,   n28 but also engaged in racially discriminatory hiring practices that left minority teachers underrepresented system-wide when compared with minorities' presence in the student body or the general community.   n29 In such cases, some judges imposed quotas that required the racial composition of the district's faculty to mirror that of either the student or the general population.   n30 Providing minority students with teacher role models of their own race, these courts reasoned, would vindicate students' constitutional rights by improving their self-esteem and dispelling racial stereotypes.   n31 

 [*1922]  Demographic changes and fiscal crises made such quotas difficult to satisfy.  Throughout the 1980s, the pool of available minority teachers shrank markedly, due in part to widening career options for minorities and to states' increased use of teacher competency tests, which many minority applicants failed.   n32 At the same time, the proportion of minority students in many school districts rose significantly.   n33 Additionally, budget deficits required faculty layoffs that threatened to diminish the ranks of newly hired minority teachers.  In response, some district judges ordered race-based layoffs that enabled school systems to retain the existing percentage of minority faculty by laying off senior white teachers.   n34 
The Boston desegregation case provides examples of both the hiring and layoff remedies that courts have imposed.  In his 1974 decision declaring the school system unconstitutional, Judge W. Arthur Garrity found that the Boston School Committee (BSC) had engaged in both discriminatory hiring and assignment practices.   n35 At that time, blacks comprised approximately 19% of the city's population and 35% of students attending public schools but only 7.1% of the teaching force.   n36 In setting a quota to increase the number of black teachers, the judge rejected the BSC's proposal that he refer to the pool of available minority teachers.   n37 Instead, he chose the racial composition of Boston's general population as the relevant benchmark and ordered the BSC to engage in affirmative minority recruitment until a 25% black faculty was achieved.   n38 Ten years later, he added to this order a requirement of 10% "other minority" teachers.   n39 
The court has also twice ordered race-based layoffs to protect the positions of newly hired minorities.  In 1981, the percentage of black 

 [*1923]  teachers in the Boston schools had reached 19.09%.   n40 But the school system faced a budget crisis that ultimately required massive faculty layoffs.  Because layoffs by reverse seniority, as called for in the teachers' collective bargaining agreements, would have reduced the black teaching force to approximately 8%, the district court approved the BSC's plan to conduct race-based layoffs to maintain the current percentage of minority teachers.   n41 The court addressed the layoff problem again in 1990.  In final orders intended to close the Boston case, Judge Garrity required the BSC to conduct future layoffs so as to preserve "substantially the same racial/ethnic proportions" as existed immediately before the layoffs.   n42 He further provided that the order would expire only when minority faculty attained seniority to such an extent that, were a layoff of 3% or more faculty and staff to be conducted according to reverse seniority, the racial composition of the faculty and staff after the layoff would remain substantially unchanged.   n43 
II.  DEFINING STUDENTS' RIGHTS AND THE APPROPRIATE SCOPE OF HIRING AND LAYOFF REMEDIES IN DE JURE CASES 
Circuit courts have disagreed over whether students' constitutional rights in desegregation cases are broad enough to justify faculty quotas and whether hiring or layoff remedies should be imposed despite their interference with other rights and interests.  This Part argues that although the racial composition of the teaching force may be relevant to vindicating minority students' rights, other considerations always make quotas improper and render race-based layoffs appropriate only in limited circumstances. 
A.  The Circuit Court Approaches 
Circuit courts have taken different approaches to teacher quotas and preferential layoffs as remedies for de jure segregation.  For example, in Morgan v. O'Bryant   n44 the First Circuit upheld both Judge Garrity's order requiring the Boston schools to achieve a faculty that would approximately reflect the racial composition of the city's general population and the imposition of race-based layoffs.  The court reasoned that a racially balanced faculty vindicates students' constitutional 

 [*1924]  rights by providing them with role models, encouraging black students and parents to participate in the school community, and facilitating other aspects of the desegregation program.   n45 It therefore concluded that the district judge did not abuse his discretion in imposing the 25% quota.   n46 The court also determined that once a constitutional violation is found, a race-based layoff need only be "reasonable" to survive constitutional scrutiny.   n47 Because race-based layoffs would protect the school committee's progress in hiring minority teachers, the First Circuit held that they did not constitute a forbidden racial preference.   n48 
By contrast, in Oliver v. Kalamazoo Board of Education   n49 the Sixth Circuit defined students' constitutional rights and the scope of permissible remedies more narrowly and thus rejected both a faculty quota tied to the minority student population and preferential layoffs.   n50 The court invalidated the quota on the ground that students have no constitutional right to a faculty with any particular racial composition and are entitled only to the school board's "'sustained good faith effort to recruit minority faculty members.'"   n51 It stressed that the percentage of minorities in the student population was an arbitrary benchmark and that practical difficulties -- including competition from the private sector -- made the quota difficult to satisfy despite the school board's extensive recruitment efforts.   n52 Although it acknowledged that temporary teacher quotas may be warranted in cases of egregious discrimination, the court suggested that more flexible hiring goals are generally preferable to permanent quotas.   n53 It invalidated the layoff policy for related reasons.  Recognizing the importance of seniority rights, the court held that a remedy upsetting teachers' employment expectations must be "'necessary,' not merely 'reasonable,'"   n54 and concluded that the layoff policy in this case could not pass even a reasonableness test because it was tied to a numerical goal unrelated to vindication of students' constitutional rights.   n55 

 [*1925]  B.  The Problem of Defining the Underlying Constitutional Right 
The first important issue raised by the First and Sixth Circuit decisions is the nature of minority students' rights in desegregation cases.  Because the Supreme Court has never articulated a single, unified theory of the constitutional injuries desegregation is intended to redress, it is difficult to define the scope of students' rights precisely.   n56 Nonetheless, the conclusion that students' rights are broad enough to make the racial composition of the faculty relevant is both consistent with precedent and responsive to the harm employment discrimination against teachers may cause to minority students.  
Under current Supreme Court doctrine, when a school system is found unconstitutional the school board has an affirmative obligation to eliminate all the vestiges of its own past discrimination to the extent practicable,   n57 and students have a correlative right to attend school in a system as free as possible of that discrimination's effects.   n58 When the discrimination has been both long-lasting and widespread, the effects may be equally far-reaching: they may include not only the relatively tangible harm of racially identifiable schools, but also less quantifiable injuries such as educational deficiencies   n59 and the "feeling of inferiority" produced by racial separation.   n60 Two theories support the argument that faculty hiring and layoff remedies may help eliminate the effects on minority students of a school system's discriminatory employment practices.  First, learning from minority teachers may improve minority students' academic achievement.  Second, the 

 [*1926]  presence of minority teachers may also enhance minority students' self-esteem.  
Some commentators contend that black students achieve at lower levels when taught by white teachers because white teachers have lower expectations of black students than do black teachers.  These low expectations, it is argued, become self-fulfilling prophecies when black students begin to view themselves as underachievers with limited potential.  Black teachers, in contrast, are said to be better-suited than whites to help black children reach their full potential because black teachers share the students' distinctive culture and are sensitive to their unique learning styles.   n61 
Defining minority students' rights in terms of measurable academic achievement is unsatisfactory.   n62 Social scientists have found no strong empirical correlation between teacher race and academic success.   n63 Perhaps more important, the assertion that black students have distinctive learning patterns that black teachers are uniquely capable of addressing has disturbing implications, because it may perpetuate the sort of racial stereotyping condemned in Brown. Labelling black students and teachers as different from whites, even for the assertedly benign purpose of improving minority education, risks identifying the students as intellectually inferior.  The achievement argument ultimately fails because its logical endpoint is not desegregation, but resegregation, in conflict with the fundamental principle that separate is inherently unequal.   n64 
A related but more persuasive argument is that the presence of minority teachers in a desegregated school may help eliminate the 

 [*1927]  stigmatic injury identified in Brown as one of the justifications for desegregation.   n65 Minority students' feelings of inferiority, it is argued, will not disappear until minority students see significant numbers of minority adults in positions of responsibility.   n66 
Defining minority students' rights in terms of self-esteem is also problematic.  Tracing feelings of inferiority to school segregation, as opposed to other societal factors, is virtually impossible; moreover, whether desegregation in fact eliminates these feelings remains uncertain.   n67 Nevertheless, the self-esteem argument has intuitive appeal.  Furthermore, unlike the achievement rationale, the argument does not suggest that all or even most of a black student's teachers should be black.  Rather, it posits that seeing any substantial number of black teachers interact successfully with white students and teachers as well as with other blacks will enhance black students' self-esteem by showing them that they too can fully participate in an integrated society.  Thus, the self-esteem rationale for race-conscious faculty remedies is consistent with the integrative principle underlying many of the Supreme Court's desegregation cases.   n68 
C.  Shaping Appropriate Teacher Remedies 
Even if students' constitutional rights are defined this broadly, however, they cannot support race-based faculty hiring or layoff remedies in every case.  The First and Sixth Circuits' disagreement over whether faculty remedies must be "necessary" or simply "reasonable" parallels larger contemporary debates over how closely race-conscious measures must be tied to a constitutional or statutory violation and over the extent to which such measures can abridge competing interests.  This section argues that because faculty hiring and layoff remedies implicate teachers' equal protection rights to individualized treatment, judges cannot have unlimited discretion to impose them. 
1. . Limits on Discretion. -- The Supreme Court's desegregation cases provide little guidance concerning the permissible scope of district courts' discretion to impose race-conscious relief.  For example, 

 [*1928]  the Court has held that, in shaping desegregation remedies, district judges should apply "equitable principles."   n69 Brown II made clear that these principles require district judges fashioning desegregation orders to consider competing interests, including those of nonparties.   n70 However, because the Court has upheld decrees that impose substantial burdens on third parties -- including orders requiring the large-scale busing of black and white children to schools considerable distances from their homes   n71 -- this requirement does not significantly limit judges' remedial discretion.  Similarly, in Milliken v. Bradley (Milliken I)   n72 the Court held that equity also requires a close fit between the remedy and the underlying constitutional violation.   n73 Yet subsequent decisions suggest that the necessary linkage is in fact quite loose.   n74 
The Court's most recent discussion of race-conscious judicial remedies appears in its 1987 decision United States v. Paradise,   n75 which involved an order requiring one-for-one promotion of black and white state troopers to redress past and present employment discrimination by the Alabama Department of Public Safety.  The Court noted that it had not achieved consensus on the appropriate level of scrutiny to apply to racial classifications adopted for remedial purposes.   n76 It found the issue unnecessary to decide, however, because it concluded that the challenged quota satisfied strict scrutiny.   n77 The Court first observed that redressing proven discrimination is clearly a compelling governmental interest.  It then identified four factors relevant to determining whether a race-conscious remedy is narrowly tailored: "the necessity for the relief and the efficacy of alternative remedies; the flexibility and duration of the relief, including the availability of waiver provisions; the relationship of the numerical goals to the relevant 

 [*1929]  labor market; and the impact of the relief on the rights of third parties."   n78 Finding these factors satisfied, the Court upheld the quota.   n79 
The narrow-tailoring inquiry adopted in Paradise is more relaxed than traditional strict scrutiny; instead of requiring a remedy that is the least restrictive available alternative, it permits a court that has made a finding of unconstitutional discrimination to balance several factors in shaping appropriate relief.   n80 But because it identifies considerations that may render a particular remedy inappropriate, the Paradise framework also places meaningful limits on judges' remedial discretion.  Paradise involved the interests of minority employees, not minority students, in eliminating the effects of employment discrimination.  Nonetheless, a similar analysis should be applied to faculty hiring and layoff remedies designed to vindicate students' rights, because a multifactored test can specifically require judges contemplating such remedies to take countervailing interests,including the interests of teachers, into account.  
Although not directly applicable, Supreme Court affirmative action decisions subjecting voluntary affirmative action measures to strict scrutiny   n81 support a focused analysis of race-conscious teacher remedies.  Under the view of the equal protection clause articulated in these decisions, all governmental race-based distinctions are inherently suspect   n82 and must be rigorously scrutinized to ensure that an interest of surpassing importance justifies the costs that racial preferences invariably impose on some individuals.   n83 From the perspective of disfavored teachers, the same reasoning should apply to court-ordered faculty quotas and preferential layoffs.  Whatever the purpose for their adoption, race-based faculty hiring and layoff policies are problematic not only because they reflect disturbing assumptions about minority students, but also because they fail to respect teachers' individual worth.  They value black teachers principally for their race, not for the unique talents each brings to the classroom, and they devalue the 

 [*1930]  interest and skill some white teachers have in educating minority children.  In addition, when they exclude teachers from employment, hiring and layoff remedies can impose substantial hardships.  Both of these considerations suggest that judges' discretion to impose faculty desegregation remedies should be closely constrained.   n84 
At the same time, the judge in a desegregation suit must often restructure every facet of a pervasively unconstitutional school system.  Given the unique circumstances of each case, the judge must have discretion to formulate the remedies necessary to vindicate students' constitutional rights.   n85 A multifactored test such as Paradise does not unduly limit a judge's ability to order such relief.  Rather, a balancing inquiry can simultaneously provide district courts with needed flexibility and ensure that the remedies chosen respect other interests.  
The four Paradise factors must be modified when applied to faculty desegregation remedies, because such remedies are concerned with the effects of employment discrimination on students, not teachers.   n86 In particular, the second factor, which examines the relationship of numerical goals to the labor pool, cannot be adopted verbatim: reference to the labor market may be insufficient to vindicate students' rights if the school board has contributed to the small size of the minority teacher pool, either by providing minority students who might have become teachers with inadequate educations or by discouraging minority teachers from seeking employment in the district.  But faculty desegregation remedies can be evaluated under the more general principle that numerical targets should have some nexus to the harms they are meant to redress.  This inquiry, together with the other Paradise factors, should guide judicial evaluation of hiring and layoff remedies in desegregation cases.  
2.  Hiring Remedies. -- When a court finds that a school board operating an unconstitutional school system has engaged in discriminatory employment practices, an order designed to increase the percentage of minority teachers may be necessary for the principal reason discussed above: discrimination in faculty hiring inflicts a stigma on 

 [*1931]  minority students that must be eliminated to vindicate the students' constitutional rights.  Moreover, a school board's past reluctance to hire minority teachers may make alternatives such as open-ended recruiting requirements appear insufficient.  Nevertheless, even when a need for some form of relief can be demonstrated, minority faculty quotas are inappropriate.  The numerical benchmarks on which they are usually based bear no clear relationship to the constitutional violation, may result in court orders of indefinite duration, and may unduly infringe other interests, including the rights of teachers.  Moreover, even if a court could establish an appropriate numerical target, there are alternatives to rigid quotas. 
Court-ordered faculty quotas typically rely on one of two benchmarks: the percentage of minority students in the school system or the percentage of minorities in the general community.  Both prove unsatisfactory, however, because there is no demonstrable nexus between either percentage and the underlying constitutional harm.  If the remedial goal is to redress minority students' stigmatic injuries by increasing the percentage of minority teachers in the school system, it is not at all clear why mathematical equivalence between teachers and students should be required.  For instance, no evidence suggests that the 25% target imposed in the Boston suit was inadequate to vindicate students' rights, while a goal of 35% -- the approximate percentage of minority students in the system when the decree was announced -- would have sufficed.  Remedies tied to the general community rather than the student population may result in lower numerical targets,   n87 but they are no less arbitrary.  Indeed, no particular numerical ratio is ever appropriate in this sense because students' self-esteem can never be quantified.  
Furthermore, when the numerical target substantially exceeds the percentage of available minority teachers, it risks subjecting a school district to indefinite judicial supervision.   n88 The declining number of minorities currently entering teaching, combined with growing minority populations,   n89 often makes it difficult to satisfy quotas tied to the student body or general community.  Moreover, competition from districts that can offer high salaries only exacerbates the problem for school boards also under court order to upgrade facilities, improve 

 [*1932]  educational programs, or implement busing plans.  As the Boston case illustrates, despite a school board's extensive recruitment efforts, even a minority faculty hiring target considerably lower than the percentage of minorities in the student population can remain unsatisfied many years after the district has become unitary in other respects.   n90 
Ambitious minority faculty hiring targets can also interfere with other interests.  Race-based hiring harms both black and white teachers by depriving them of their right to individualized treatment.  Further, if high minority teacher targets require school boards to abandon legitimate employment standards, they may diminish the quality of education all students receive.  They may also have effects outside the school system: when one district attempts to comply with a court order by hiring black teachers in excess of their representation in the labor pool, it may impede other school systems' efforts to achieve greater faculty diversity. 
There are more flexible, and hence more appropriate, alternatives.  When employment discrimination against minority teachers has occurred, the court can impose an open-ended hiring goal in which race is a "plus" factor.   n91 The court can also require school authorities to make affirmative efforts to expand the pool of available black teachers without unduly interfering with other interests.  School boards have access to a variety of innovative techniques for making faculty positions more attractive to minorities.  For example, they can adopt alternative certification methods or hire talented minorities directly from liberal arts colleges rather than from departments of education.   n92 They can also solicit financial support from other governmental agencies and industry to provide scholarships for minority college students who agree to teach for a specified time after graduation in communities where the need for minority teachers is greatest.   n93 

 [*1933]  Similarly, in evaluating compliance with a faculty order, the court should not rely on a single, arbitrary benchmark.  Instead, it should consider several factors, including not only the percentage of minorities in the student and general population, the current teaching force, and the labor pool, but also evidence of the school board's good faith efforts to hire minorities and practical considerations such as geographical, budgetary, or other external constraints that may have limited the board's ability to increase the percentage of minorities on its teaching staff.   n94 
Open-ended hiring goals and fact-specific compliance inquiries of this nature are not necessarily less effective than strict faculty quotas.  When a school board under court order to hire more minority teachers and expand the labor pool demonstrates bad faith, the court may still impose temporary quotas, such as one-for-one hiring orders, without imposing a rigid permanent target.  For these reasons, courts should prefer flexible hiring goals to permanent faculty quotas as remedies for employment discrimination in school desegregation cases. 
3.  Preferential Layoffs. -- In determining the appropriateness of race-based faculty layoffs, the necessity of the relief and its effect on third parties are the most important factors to consider.  On one hand, when seniority-based layoffs threaten to diminish the ranks of newly hired minority teachers and to discourage future minority applicants from seeking employment in the district, preferential layoffs may be necessary to prevent a major setback to the school board's minority hiring efforts.  On the other hand, layoffs that abridge established seniority rights can impose distinctively severe burdens.   n95 They may 

 [*1934]  thwart the expectations of teachers who have devoted years of their lives to a school system only to lose their jobs because of their skin color.   n96 In addition, race-based layoffs may also diminish the quality of education the school system provides by displacing experienced teachers and discouraging others from remaining in the system long enough to benefit from seniority privileges.  Although teacher competence does not always correlate with experience,   n97 layoffs in derogation of seniority may harm students of all races not only by depriving them of seasoned instructors, but also by depleting the faculty of mentors from whom newer teachers can learn both general skills and the special needs of the particular school community.  
Thus, when contemplating race-based teacher layoffs, courts must weigh minority students' interest in retaining the existing percentage of minority teachers against the harms to both teachers and students that such layoffs may cause.  Because the harms and benefits will vary from case to case, a fact-specific inquiry is necessary.  In each case the court should determine the decrease in the percentage of minority teachers that will result from seniority-based layoffs and any other factors that may impede recovery from this setback.  It should also attempt to determine the number of teachers whose seniority rights will be abridged by preferential layoffs, the length of time those teachers will have to wait to be recalled, and the number of years they have worked for the school system in comparison with the teachers who will be retained through the preferential policy.   n98 If race-based layoffs would displace a large number of white teachers with significantly more seniority than the black teachers retained in their place, the court should order such layoffs only if layoffs by seniority would severely deplete the minority teaching force.  Even then, the court might adopt alternative measures such as work sharing to distribute the burdens of the layoffs more evenly.   n99 

 [*1935]  Analysis of the two Boston layoff orders discussed in Part I demonstrates how this framework might apply in practice.  In 1981, conducting layoffs by seniority would have resulted in a 60% reduction in the percentage of black teachers in the school system.   n100 But the adverse effects of preferential layoffs were also severe.  The BSC ultimately laid off 1300 teachers, including tenured whites with up to fifteen years of service.  Three years later, over 400 white teachers still had not been recalled.   n101 Because of the strong interests on both sides, the First Circuit probably did not err in affirming the district court's order approving race-based layoffs.  Nevertheless, the district court would have reached a better result had it explored less burdensome alternatives such as work sharing or a cap that would protect the most senior teachers.  
In contrast, the 1990 order is clearly unjustified because it operates regardless of the balance of harms and benefits presented by any particular layoff.  Indeed, the circumstances surrounding possible layoffs in 1990 did not warrant a race-based reduction in force.  When the order was issued, the percentage of black teachers in the Boston system deviated only 1.16% from the 25% target, and the BSC had fully complied with the requirement of 10% other minority faculty.   n102 Although it was unclear to what extent potential layoffs would affect blacks, evidence revealed they would reduce the Hispanic faculty from 10.11% to 9.4%   n103 -- a relatively minor decrease of approximately 7%.  Further, because the school board anticipated that 300 teachers would have to be laid off,   n104 large numbers of white teachers, including some with many years of service in the Boston schools, would likely again be displaced.  There is no justification for race-based layoffs that provide so small a benefit while abridging many teachers' seniority rights and frustrating the autonomy interests of local authorities who have achieved near perfect compliance with the court's mandates.   n105 

 [*1936]  IV.  CONCLUSION 
When contemplating hiring and layoff remedies that affect the racial composition of public school faculties in de jure segregation cases, courts should recognize not only the potentially broad scope of minority students' constitutional rights, but also the competing interests that such remedies implicate.  Any fact-specific analysis gives courts considerable discretion and thus leaves open the possibility of inconsistent results.  Nevertheless, because it requires judges to focus on specific interests and practical concerns, the proposed framework can foster reasoned decisionmaking at the district court level and promote meaningful appellate review.   n106 For these reasons, the analysis may also enhance the legitimacy of faculty remedies in de jure cases generally and, in so doing, facilitate their broader acceptance.  

FOOTNOTES: 
n1 See United States v. Montgomery County Bd. of Educ., 395 U.S. 225, 232 (1969); Green v. County School Bd., 391 U.S. 430, 435 (1967).
n2 See Montgomery, 395 U.S. at 233-36.
n3 A school board's employment policies may also violate the constitutional and statutory rights of teachers.  See, e.g., Hazelwood School Dist. v. United States, 433 U.S. 299, 307-08 (1977). The cases discussed in this Note address minority students' constitutional rights, as distinct from teachers' rights, to faculty integration.
n4 Although courts have recognized the claims of other minority groups in school desegregation cases, see, e.g., Keyes v. School Dist. No. 1, 413 U.S. 189, 197-98 (1973), most cases have addressed the claims of black plaintiffs.  For simplicity, this Note focuses primarily on remedies involving the integration of blacks and whites.
n5 Courts ordered faculty quotas and preferential layoffs in desegregation cases in Boston, see Morgan v. O'Bryant, 671 F.2d 23, 24-25 (1st Cir.) (upholding a district court order approving race-based layoffs), cert. denied, 459 U.S. 827 (1982); Morgan v. Kerrigan, 388 F. Supp. 581, 583 (D. Mass. 1975) (imposing a faculty quota), aff'd, 530 F.2d 431 (1st Cir.), cert. denied, 426 U.S. 935 (1976), Buffalo, see Arthur v. Nyquist, 520 F. Supp. 961, 963 (W.D.N.Y. 1981), aff'd in part and rev'd in part, 712 F.2d 816 (2d Cir. 1983), cert. denied, 467 U.S. 1259 (1984), and Kalamazoo, Michigan, see Oliver v. Kalamazoo Bd. of Educ., 498 F. Supp. 732, 744, 754-55 (W.D. Mich. 1980), vacated, 706 F.2d 757 (6th Cir. 1983). In most cases, the school board originally proposed the preferential layoffs.  See, e.g., O'Bryant, 671 F.2d at 25. This Note does not distinguish between judicially created desegregation orders and those that incorporate plans submitted by the school board.  For an argument that federal courts should give greater deference to state-formulated remedies, see Mamlet, Reconsideration of Separation of Powers and the Bargaining Game: Limiting the Policy Discretion of Judges and Plaintiffs in Institutional Suits, 33 EMORY L.J. 685, 702-06 (1984).
n6 See Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986). The Court held that the school board's interest in providing minority students with role models to redress societal discrimination was not sufficiently compelling to justify the abrogation of white teachers' seniority rights.  See id. at 274-76 (plurality opinion).  In addition, a three-Justice plurality suggested that even when race-based layoffs serve a compelling governmental purpose, they are never appropriate because they impose severe and unnecessary burdens on "innocent" white employees.  See id. at 279-84.
n7 The most recent example of such an order appears in Morgan v. Burke, No. 72-911-G, slip op. at 3-4 (D. Mass. May 31, 1990), aff'd as amended, 926 F.2d 86 (1st Cir. 1991).
n8 See O'Bryant, 671 F.2d at 25-30.
n9 See Oliver v. Kalamazoo Bd. of Educ., 706 F.2d 757, 762 (6th Cir. 1983).
n10 See, e.g., Morgan v. Burke, 926 F.2d 86 (1st Cir. 1991) (sustaining preferential layoffs against a challenge by a teachers' union); Vaughns v. Board of Educ., 742 F. Supp. 1275 (D. Md. 1990) (rejecting, for the most part, black and white teachers' challenges to the seniority override component of a race-based faculty assignment policy).  The Supreme Court's recent holding that white employees can challenge affirmative action measures required by court-approved consent decrees to which the employees were not parties, see Martin v. Wilks, 490 U.S. 755, 761-62 (1989), increases the likelihood of future teacher challenges to faculty desegregation orders.
n11 A unitariness determination requires the district court to "look not only at student assignments, but 'to every facet of school operations -- faculty, staff, transportation, extracurricular activities and facilities.'" Board of Educ. v. Dowell, 111 S. Ct. 630, 638 (1991) (quoting Green v. County School Bd., 391 U.S. 430, 435 (1968)); see also Gewirtz, Choice in the Transition: School Desegregation and the Corrective Ideal, 86 COLUM. L. REV. 728, 790 (1986) (observing that the unitariness inquiry requires a more precise formulation of goals and remedies than was required at the liability stage of a desegregation suit).
n12 480 U.S. 149 (1987).
n13 Brown II, 349 U.S. 294 (1955); Brown I, 347 U.S. 483 (1954).
n14 See, e.g., United States v. Montgomery Bd. of Educ., 395 U.S. 225, 229 (1969).
n15 See Lieberman, Teachers and the Fourteenth Amendment -- The Role of Faculty in the School Desegregation Process, 46 N.C.L. REV. 313, 320-21 (1968).
n16 See, e.g., Board of Pub. Instruction v. Braxton, 326 F.2d 616, 620-21 (5th Cir.), cert. denied, 377 U.S. 924 (1964); Christmas v. Board of Educ., 231 F. Supp. 331, 337 (D. Md. 1964).
n17 See G. ORFIELD, THE RECONSTRUCTION OF SOUTHERN EDUCATION 138 (1969).  White resistance stemmed from the prejudices of teachers and parents, see J. WILKINSON, FROM BROWN TO BAKKE 96 (1979), and from the belief that black teachers were ill-equipped to teach in integrated schools because of their own inferior educational backgrounds, see O. CARMICHAEL & W. JONES, THE LOUISVILLE STORY 124-29 (1957).
n18 See Note, Desegregation of Public School Faculties, 51 IOWA L. REV. 681, 681 (1966) (noting that as of 1965, not a single black teacher taught in a school with white teachers in Alabama, Louisiana, or Mississippi).
n19 See Rogers v. Paul, 382 U.S. 198, 200 (1965) (per curiam); Bradley v. School Bd., 382 U.S. 103, 104-05 (1965) (per curiam).  In Rogers the Court stated that minority students have standing to challenge faculty segregation under two theories: "(1) that racial allocation of faculty denies them equality of educational opportunity . . .; and (2) that it renders inadequate an otherwise constitutional pupil desegregation plan." Rogers, 382 U.S. at 200.
n20 See Weitz, Race and Equal Educational Opportunity in the Allocation of Public School Teachers, 39 GEO. WASH. L. REV. 341, 354 (1970); Note, supra note 18, at 686-88.
n21 See Lieberman, supra note 15, at 333-40; Note, supra note 18, at 686.
n22 See United States v. Jefferson County Bd. of Educ., 372 F.2d 836, 892-94 (5th Cir. 1966), aff'd on rehearing en banc, 380 F.2d 385 (5th Cir.) (per curiam), cert. denied, 389 U.S. 840 (1967).
n23 See United States v. Montgomery County Bd. of Educ., 395 U.S. 225, 233-36 (1969).
n24 See id. at 236. The Department of Health, Education & Welfare (HEW) significantly influenced the adoption of race-conscious teacher assignment plans.  Pursuant to title VI of the Civil Rights Act of 1964, 42 U.S.C. § §  2000d to 2000d-5 (1988), which prohibits discrimination in programs receiving federal financial assistance, HEW pressured many school districts to desegregate their teaching staffs by threatening to withhold substantial federal funds.  See L. GRAGLIA, DISASTER BY DECREE 52-58 (1976).
n25 An estimated 39,386 black teachers lost their jobs in the South between 1954 and 1972.  See J. IRVINE, BLACK STUDENTS AND SCHOOL FAILURE 34 (1990).  In response, the Fifth Circuit created preferential recall rights for displaced black teachers, under which the school board could fill a vacancy with a white teacher only if displaced black teachers qualified for the particular position had first received an opportunity to fill it.  See Singleton v. Jackson Mun. Separate School Dist., 419 F.2d 1211, 1218 (5th Cir. 1969) (en banc, per curiam), rev'd and remanded on other grounds, 396 U.S. 290 (1970) (per curiam).
n26 Singleton, 419 F.2d at 1218; see also Carter v. West Feliciana Parish School Bd., 432 F.2d 875, 878 (5th Cir. 1970) (explaining that Singleton "contemplates . . . that faculty desegregation will be accomplished by invoking the system-wide ratio as a rule for each particular school in the system and that thereafter the system will function from the standpoint of faculty and staff on the merit system").
n27 See, e.g., Smith v. Board of Educ., 365 F.2d 770, 782 (8th Cir. 1966). As then-Judge Blackmun wrote: 
[I]n this day race per se is an impermissible criterion for judging either an applicant's qualifications or the district's needs.  And this applies equally to considerations described as environment or ability to communicate or speech patterns or capacity to establish rapport with pupils when these descriptions amount only to euphemistic references to actual or assumed racial distinctions.  
Id.
n28 Northern judges imposed race-conscious assignment remedies even when segregative assignments had been made at the request of black teachers and administrators.  See, e.g., Morgan v. Hennigan, 379 F. Supp. 410, 460-61 (D. Mass. 1974), aff'd sub nom. Morgan v. Kerrigan, 509 F.2d 580 (1st Cir.), cert. denied, 421 U.S. 963 (1975). In addition, several large Northern and Western school districts adopted reassignment plans as a result of negotiations with HEW.  See M. REBELL & A. BLOCK, EQUALITY AND EDUCATION: FEDERAL CIVIL RIGHTS ENFORCEMENT IN THE NEW YORK CITY SCHOOL SYSTEM 98-100 (1985).
n29 See, e.g., Morgan v. O'Bryant, 671 F.2d 23, 24 (1st Cir.), cert. denied, 459 U.S. 827 (1982); Cisneros v. Corpus Christi Indep. School Dist., 467 F.2d 142, 151-52 (5th Cir. 1972), cert. denied, 413 U.S. 920 (1973).
n30 See, e.g., Arthur v. Nyquist, 520 F. Supp. 961, 963 (W.D.N.Y. 1981) (general community), aff'd in part and rev'd in part, 712 F.2d 816 (2d Cir. 1983), cert. denied, 466 U.S. 936 (1984); Oliver v. Kalamazoo Bd. of Educ., 498 F. Supp. 732, 744 (W.D. Mich. 1980) (student population), vacated, 706 F.2d 757 (6th Cir. 1983). Many other school districts adopted affirmative action programs pursuant to agreements with HEW.  See, e.g., Caulfield v. Board of Educ., 632 F.2d 999, 1002-03 & n.5 (2d Cir. 1980), cert. denied, 450 U.S. 1030 (1981).
n31 See, e.g., Oliver, 498 F. Supp. at 747-48.
n32 See Innerst, Education Reforms Have Hurt Minority Teachers, Study Shows, Wash. Times, May 25, 1990, at A4, col. 2 (reporting that, during the educational reforms of the 1980s, "[n]early 38,000 members of minority groups initially failed standardized tests required to be certified as teachers").  According to one estimate, the proportion of blacks in the national teaching force dropped from 12% in 1980 to 5% in 1990.  See J. IRVINE, supra note 25, at 33.
n33 One recent study concluded that by the year 2000, nearly 35% of public school students will be minority group members.  See Educators Advocate Steps to Lure Minority Teachers, N.Y. Times, May 30, 1990, at B9, col. 1 (discussing a recent report by the Education Commission of the States).
n34 See cases cited supra note 5.
n35 See Morgan v. Hennigan, 379 F. Supp. 410, 456-66 (D. Mass.), aff'd sub nom. Morgan v. Kerrigan, 509 F.2d 580 (1st Cir. 1974), cert. denied, 421 U.S. 963 (1975).
n36 See Morgan v. Kerrigan, 388 F. Supp. 581, 582 (D. Mass. 1975), aff'd, 530 F.2d 431 (1st Cir.), cert. denied, 426 U.S. 935 (1976).
n37 The BSC defined the pool as the percentage of black college graduates in Boston or the Northeast.  Because these percentages stood at 5.25% and 4.24%, respectively, they could not form the basis for remedial relief.  See id. at 582-83.
n38 See id. He also required the BSC to hire blacks and whites on a one-for-one basis until the proportion of black faculty reached 20%.  See id. at 583.
n39 Morgan v. Nucci, 620 F. Supp. 214, 227 (D. Mass. 1985), aff'd in relevant part, 831 F.2d 313 (1st Cir. 1987).
n40 See Morgan v. O'Bryant, 671 F.2d 23, 24 (1st Cir.), cert. denied, 459 U.S. 827 (1982).
n41 See id. at 25-30.
n42 Morgan v. Burke, No. 72-911-G, slip op. at 3 (D. Mass. May 31, 1990), aff'd as amended, 926 F.2d 86 (1st Cir. 1991).
n43 See id. at 3-4.  The First Circuit affirmed the provision after deleting the language "or more" after "3%" on the ground that it introduced uncertainty into the order.  See Morgan v. Burke, 926 F.2d 86, 91 (1st Cir. 1991).
n44 671 F.2d 23 (1st Cir.), cert. denied, 459 U.S. 827 (1982).
n45 See id. at 27.
n46 See id. at 26.
n47 See id. at 28.
n48 See id. at 28-29.
n49 706 F.2d 757 (6th Cir. 1983).
n50 The case involved district court orders that the Kalamazoo Board of Education achieve a 20% black teaching staff and engage in race-based layoffs and recalls in violation of the teachers' collective bargaining agreements.  See Oliver v. Kalamazoo Bd. of Educ., 498 F. Supp. 732, 744, 754-55 (W.D. Mich. 1980), vacated, 706 F.2d 757 (6th Cir. 1983).
n51 Oliver, 706 F.2d at 762 (quoting Fort Bend Indep. School Dist. v. City of Stafford, 651 F.2d 1133, 1140 (5th Cir. 1981)).
n52 See id. at 762-63.
n53 See id. at 763.
n54 Id.
n55 See id. at 763-64.  In Arthur v. Nyquist, 712 F.2d 816 (2d Cir. 1983), cert. denied, 467 U.S. 1259 (1984), the Second Circuit upheld race-based layoffs under a necessity standard.  The court reasoned that layoffs by seniority would erode much of the school board's progress toward a court-imposed hiring target of 21% minority teachers -- a target tied to the percentage of minorities in the general community.  See id. at 817-18, 823.
n56 See Brown, Termination of Public School Desegregation , 58 GEO. WASH. L. REV. 1105, 1109 (1990). Commentators have not hesitated to rush in where the Justices fear to tread, however.  See, e.g., id. at 1112-40 (identifying "invidious value inculcation" as the unconstitutional harm stemming from de jure school segregation); Liebman, Desegregating Politics: "All-Out" School Desegregation Explained, 90 COLUM. L. REV. 1463, 1476-1540, 1614-63 (1990) (summarizing five current theories of desegregation and proposing a sixth -- desegregation as "political reformation").
n57 See Board of Educ. v. Dowell, 111 S. Ct. 630, 638 (1991).
n58 The Sixth Circuit's assertion that students have no constitutional right to a faculty with a specific racial composition appears to derive from the maxim that desegregation does not require "any particular degree of racial balance or mixing." Swann v. Charlotte Mecklenburg Bd. of Educ., 402 U.S. 1, 24 (1971). In the present context, this statement confuses the right and remedy inquiries.  Although students are not entitled to any particular degree of teacher integration, hiring remedies may still be appropriate to redress the harms stemming from the school board's unconstitutional conduct.  See id. at 25 (holding that a mathematical ratio may be "a useful starting point in shaping a remedy to correct past constitutional violations").
n59 See Milliken v. Bradley (Milliken II), 433 U.S. 267, 287-88 (1977) (upholding the remedial education component of a desegregation decree).
n60 Brown v. Board of Educ. (Brown I), 347 U.S. 483, 494 (1954).
n61 See J. IRVINE, supra note 25, at 61.
n62 The relationship between segregation and minority student achievement has long been controversial.  See, e.g., J. COLEMAN, EQUALITY OF EDUCATIONAL OPPORTUNITY 325 (1966) (concluding that academic achievement is largely determined by socioeconomic factors); L. GRAGLIA, supra note 24, at 271-73 (discussing the inconclusive results of empirical studies from the 1960s and 1970s); J. IRVINE, supra note 25, at 37 (observing that as of 1990 the expected achievement goals of desegregation had not been fully realized).
n63 See, e.g., M. WEINBERG , MINORITY STUDENTS: A RESEARCH APPRAISAL 237-40 (1977) (summarizing empirical evidence from the 1960s and 1970s that teacher race by itself does not affect student achievement); Berger, Pessimism in Air As Schools Try Affirmative Action, N.Y. Times, Feb. 27, 1990, at B1, col. 1 (reporting education experts' conclusions that "there is no hard evidence that pairing students with teachers of the same race or ethnic background will enhance their performance").
n64 These concerns have caused some civil rights leaders to criticize recent experiments with "Afrocentric" public education in Milwaukee and elsewhere.  The advocates of Afrocentric education maintain that it will counteract social problems that lead minority students, and in particular young black males, disproportionately to drop out of school and spend time in jail, on probation, or on parole.  See Dunkel, A Class Struggle to Teach Blacks, INSIGHT, Mar. 11, 1991, at 46.  Critics, however, believe that such efforts stigmatize black children and will reverse the progress made in minority education since Brown.  See Navarro, Proposed School May Draw Lawsuit, N.Y. Times, Jan. 13, 1991, §  1, at 21, col. 1.
n65 See Brown v. Board of Educ. (Brown I), 347 U.S. 483, 494 (1954).
n66 For an early example of this argument, see G. NOAR, THE TEACHER AND INTEGRATION 87 (1966).
n67 See Brown, supra note 56, at 1146-48.  In light of Justice Marshall's recent defense of this interpretation of Brown in his Dowell dissent, see Board of Educ. v. Dowell, 111 S. Ct. 630, 642-44 (1991) (Marshall, J., dissenting), the majority's omission of any reference to stigmatic injury suggests that the current Court recognizes the argument's difficulties.
n68 See generally L. GRAGLIA, supra note 24, at 67-202 (describing how the Court -- in a line of cases beginning with Green v. County School Bd., 391 U.S. 430 (1967), and culminating in Keyes v. School Dist. No. 1, 413 U.S. 189 (1973) -- reinterpreted Brown not only to prohibit state-mandated segregation, but also to require school boards affirmatively to achieve integration).
n69 See, e.g.,69 Brown v. Board of Educ. (Brown II), 349 U.S. 294, 300 (1955).
n70 See id. at 300 ("Traditionally, equity has been characterized by . . . a facility for adjusting and reconciling public and private needs."); see also Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16 (1971) ("The task is to correct, by a balancing of the individual and collective interests, the condition that offends the Constitution.").
n71 See, e.g., Swann, 402 U.S. at 29-31.
n72 418 U.S. 717 (1974).
n73 See id. at 738 ("'[A]s with any equity case, the nature of the violation determines the scope of the remedy.'" (quoting Swann, 402 U.S. at 16)).
n74 See Fletcher, The Discretionary Constitution: Institutional Remedies and Judicial Legitimacy, 91 YALE L.J. 635, 679-80 (1982) (arguing that, in Dayton Bd. of Educ. v. Brinkman (Dayton II), 443 U.S. 526 (1979), and Columbus Bd. of Educ. v. Penick, 443 U.S. 449 (1979), "the Court appears to have returned to an analytical approach in which the tie between constitutional violations and remedial orders is extremely loose").
n75 480 U.S. 149 (1987).
n76 See id. at 166-67 (plurality opinion).
n77 See id. at 167 (stating that the court-ordered remedy was "'narrowly tailored' to serve a 'compelling governmental purpose'" (quoting Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 273-74 (1986)).
n78 Id. at 171.
n79 See id. at 171-83.
n80 See id. at 184; see also id. at 197 (O'Connor, J., dissenting) (observing that the Court's analysis in Paradise is "far less stringent than that required by strict scrutiny").
n81 See City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493-98 (1989); Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 274 (1986). Language in Croson suggests that the holding may extend to remedial as well as voluntary race-conscious measures.  See, e.g., Croson, 488 U.S. at 520 (Scalia, J., concurring in the judgment) (agreeing with the Court's opinion that "strict scrutiny must be applied to all governmental classifications by race" (emphasis added)).  The Court has recently indicated that strict scrutiny does not apply to every governmental classification, see Metro Broadcasting, Inc. v. FCC, 110 S. Ct. 2997, 3008-09 (1990), and the proper level of scrutiny for race-based federal judicial remedies thus remains uncertain.
n82 See Regents of the Univ. of Calif. v. Bakke, 438 U.S. 265, 291 (1978) (Powell, J.).
n83 See Croson, 488 U.S. at 493-94.
n84 Some lower courts already appear to assume that faculty desegregation remedies require some degree of heightened scrutiny.  See, e.g., Morgan v. Burke, 926 F.2d 86, 90 (1st Cir. 1991) (citing Wygant and Croson and noting the district court's finding that its preferential layoff order "was narrowly tailored to achieve important remedial governmental objectives"); Little Rock School Dist. v. Pulaski County Special School Dist. No. 1, 839 F.2d 1296, 1318 (8th Cir.) (approving a district court's use of Paradise to justify the preferential recall of black teachers disproportionately laid off during desegregation), cert. denied, 488 U.S. 869 (1988). But see Vaughns v. Board of Educ., 742 F. Supp. 1275, 1295-97 (D. Md. 1990) (declining to adopt strict scrutiny as the appropriate standard of review for a race-conscious faculty assignment policy adopted by a school district under court order to desegregate).
n85 See Chayes, The Supreme Court, 1981 Term -- Foreword: Public Law Litigation and the Burger Court, 96 HARV. L. REV. 4, 45-51 (1982).
n86 See supra note 3.
n87 See, e.g., Morgan v. Kerrigan, 388 F. Supp. 581, 582 (D. Mass. 1975), aff'd, 530 F.2d 431 (1st Cir.), cert. denied, 426 U.S. 935 (1976); Arthur v. Nyquist, 415 F. Supp. 904, 946 (W.D.N.Y. 1976), reaff'd, 429 F. Supp. 206 (W.D.N.Y. 1977), aff'd in part and rev'd in part, 573 F.2d 134 (2d Cir.), cert. denied, 439 U.S. 860 (1978).
n88 Cf. Milliken v. Bradley (Milliken II), 418 U.S. 717, 280-81 (1974) (holding that, in shaping desegregation remedies, courts must consider the interest of local authorities in managing their own schools); see also Board of Educ. v. Dowell, 111 S. Ct. 630, 638 (1991) (cautioning against subjecting school districts to "judicial tutelage for the indefinite future").
n89 See supra notes 32-33 and accompanying text.
n90 In 1987 the First Circuit suggested that the district was unitary with respect to student assignments, but not faculty hiring.  See Morgan v. Nucci, 831 F.2d 313, 326, 329(1st Cir. 1987). When Judge Garrity issued his "final judgment" in 1990, the target of 25% black faculty still had not been achieved, even though during the previous four school years 34.83% of newly hired provisional teachers and 56.30% of newly appointed permanent teachers were black.  See Brief of the Intervenor-Appellant at 13, Morgan v. Burke, 926 F.2d 86 (1st Cir. 1991) (No. 90-1614).  Because the target remains unattained, Judge Garrity recently granted black parents' motion to reopen the Boston suit.  See Boston School-Bias Suit on Hiring Is Reopened, N.Y. Times, Apr. 30, 1991, at A12, col. 5.
n91 Cf. Regents of the Univ. of Calif. v. Bakke, 438 U.S. 265, 316-19 (1978) (Powell, J.) (stating that race can be used as a plus factor in university admissions).
n92 See C. FEISTRITZER, PROFILE OF TEACHERS IN THE U.S. -- 1990, at 3 (1990) (noting that alternative routes attract significantly more minority teachers than do traditional certification routes).
n93 See Egler & Karwath, Thompson Signs Education Bills: State to Assist Minority Males in Becoming Teachers, Chi. Tribune, Sept. 7, 1990, §  2, at 2, col. 1; Zinn, In Search of Tomorrow's Minority Teachers, BUSINESS WEEK, May 7, 1990, at 120, 120.
n94 See, e.g., Arvizu v. Waco Indep. School Dist., 732 F. Supp. 721, 724 (W.D. Tex. 1989) (finding the school district unitary in the area of faculty and staff, despite its failure to meet the general goal of increasing the percentage of minority teachers to a level close to that of the student population, because the district had complied with the order "to the extent reasonably possible with quality of education as its goal").  A flexible approach to the unitariness determination in cases involving hiring goals would be consistent with the approach some courts have taken in cases involving assignment remedies.  See, e.g., Pitts v. Freeman, 887 F.2d 1438, 1447-48 (11th Cir. 1989) (holding that the district court could find the school system unitary with respect to faculty despite a 15% deviation from the judicially prescribed minority-to-majority teacher assignment ratio in individual schools), cert. granted, 111 S. Ct. 949 (1991).
n95 See Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 282-84 (1986); see also Fallon & Weiler, Firefighters v. Stotts: Conflicting Models of Racial jJustice, 1984 SUP. CT. REV. 1, 58 (identifying seniority as "probably the most valuable capital asset that the worker 'owns'").  Perhaps for this reason, teachers' unions have endorsed affirmative action but remain opposed to race-based layoffs.  Compare Teachers Must Lead Fight for Reform, AFT President Shanker Tells Convention, 28 Gov't Empl. Rel. Rep. (BNA) 902, 903 (July 16, 1990) (reporting the American Federation of Teachers' (AFT) rejection in 1990 of a proposal that the union support race-based layoffs) with J. IRVINE, supra note 25, at 33-34 (noting that in 1985 the AFT and the National Education Association adopted a resolution urging states to increase the percentage of minority public school teachers until it equals or surpasses the percentage of minorities in the general population).
n96 Some commentators maintain that, when white employees have acquired their seniority rights in a discriminatory work environment, these rights deserve no special solicitude.  See, e.g., Secret, The Supreme Court and Race-Conscious Seniority Systems in the Public Sector, 31 HOW. L.J. 1, 11-13 (1988). That seniority rights are in this sense "unearned," however, does not diminish the real hardships individuals suffer when courts or employers disregard their settled employment expectations.
n97 Courts have taken judicial notice that quality education depends in part on teacher experience.  See, e.g., Davis v. East Baton Rouge Parish School Bd., 570 F.2d 1260, 1264 (5th Cir. 1978), cert. denied, 439 U.S. 1114 (1979); Greenblatt & Willie, The Serendipitous Effects of School Desegregation, in SCHOOL DESEGREGATION: PAST, PRESENT, AND FUTURE 51, 60 (W. Stephan & J. Feagin eds. 1980).  Social scientists debate the importance of teacher experience, however.  See D. HOROWITZ, THE COURTS AND SOCIAL POLICY 137-44 (1977).
n98 The Sixth Circuit has suggested that it would consider such information crucial in addressing the merits of a challenge to court-ordered preferential layoffs in a desegregation case.  See Berry v. School Dist., 801 F.2d 872, 874-75 (6th Cir. 1986).
n99 Under work sharing, an employer does not reduce the number of employees in the work force, but only the number of hours each employee works.  See Fallon & Weiler, supra note 95, at 61-63.
n100 See Morgan v. O'Bryant, 671 F.2d 23, 24-25 (1st Cir.), cert. denied, 459 U.S. 827 (1982).
n101 See Fallon & Weiler, supra note 95, at 5 n.18.
n102 See Morgan v. Burke, 926 F.2d 86, 88 (1st Cir. 1991).
n103 See Brief of the Intervenor-Appellant at 27, Morgan v. Burke, 926 F.2d 86 (1st Cir. 1991) (No. 90-1614).
n104 See id.
n105 On appeal to the First Circuit, the Boston Teachers' Union did not challenge the order on the ground that it overrode seniority rights.  See Burke, 926 F.2d at 91 n.2. Rather, the Union claimed that the layoff provision should not be enforced because the school system was unitary with respect to faculty and the order was impermissibly perpetual.  The First Circuit rejected these claims, see id. at 87-92, and the Union plans to petition the Supreme Court for certiorari, see Cohen, Reopening Sought of City School Case: Parents Say Hiring Goal Unmet, Boston Globe, Apr. 10, 1991, at 15, col. 1.
n106 Cf. The Supreme Court, 1989 Term -- Leading Cases, 104 HARV. L. REV. 129, 306-07 (1990) (suggesting parallels between appellate review of equitable remedies and administrative law's "hard look" review, which seeks to cabin discretionary agency action by requiring decisionmakers to articulate fully the reasons for their decisions).