Decades ago, Affirmative Action programs were implemented to combat discrimination in the workplace. Generally, imposing specific hiring quotas upon employers to provide career opportunities to historically disadvantaged groups. Like many initiatives designed to curtail injustices, there are blind spots in these anti-discrimination laws. For instance, how are quota systems impacted by layoffs? Does the employer have the legal obligation to maintain racial or gender quotas even when amidst downsizing? How do tenure and seniority play a role in this decision-making process? As any astute reader can infer attempting to balance out all these complex factors quickly degenerates into a muddled mess. Generating a large array of various legal conflicts, ranging from contractual obligations to employees to comply with workplace discrimination laws. The fallout of the downstream consequences that were never initially ironed out.
The intricacies of such conflicts are particularly salient in the sector of public education. Throughout the 1970s and 1980s, several cases tested whether mandated quotas superseded tenure. As could be reasonably anticipated these cases have resulted in some mixed rulings. For example, in the city of Boston, Massachusetts when budget cuts forced the school district to layoff faculty members the issue was complicated legally mandated racial hiring quotas. The school district opted to ignore the tenure of seasoned Caucasian faculty members in favor of maintaining their racial quotas. This decision by the administrators of Boston schools resulted in several lawsuits (P.311-312). Unfortunately for the teachers pursuing damages the District Court and Circuit Court of appeals ruled in favor of maintaining the quotas (P. 312). This ruling cited Milliken V. Bradley providing the rationale for desegregation plans taking primacy over seniority.
A similar case took place in Buffalo, New York. Resulting in the verdict of Arthur V. Nyquist which again ruled in favor of maintaining racial employment quotas mandated by Affirmative Action laws. The court stated that such quotas are valid and supersede tenure unless it is a “ …demonstrable necessity that their rights have been impaired..” (P.312). Examining this pattern in court decision it is easy to superficially interpret these rulings as displaying an institutional bias favoring Affirmative Action. The issue isn’t quite so linear once when you look at other cases examining the interaction of anti-discrimination laws and tenure in the public school system.
One prevalent example of the courts ruling in favor of faculty tenure over racial quotes was in the early 1980s. The Sixth Circuit Court of Appeals ruled that “contractual and statutory tenure rights” took primacy over quotas (P.312). Resulting in the case precedence established under Oliver V. Kalamazoo. The question becomes why did the court of appeals rule in favor of faculty tenure in this case? The court stated that over the past decade the school district had made a “good faith effort” to remedy any effects of past discrimination. Stating that tenure rights should only be subordinated when “reasonable” to do so (P.312). Judging by the context of the ruling in the Oliver case it would be easy to assume that the courts will giver deference to tenure rights if the school district has shown considerable progress in desegregation. While this may sound like a reasonable concession, it is profoundly problematic. How do you measure “progress” or a “good faith effort”? One can only assume these qualitative metrics are fulfilled if mandated quotas are consistently maintained. What if a school district is only maintaining the quota by a margin of one employee? What if this employee needs to move out-of-state to take care of a sick relative? The school district would no longer be compliant. This becomes particularly onerous if the school district is in a region of the United States that lacks ethnic diversity. If the nearest qualified African-American teacher is hypothetically hundreds of miles away the school district may be out of luck. So then, if another court case comes up and the school district has had issues meeting racial hiring quotas the contractual agreements of the teachers may be put on the backburner. This is concerning because if this country does not uphold property rights and contract enforcement it has fundamentally failed its citizens.
Then finally we come to Wygant V. Jackson which was decided in May of 1986. In this case, the school board included the plan to maintain racial quotas when layoffs occur in the collective bargaining contract for its faculty (P.312). However, the Supreme Court found this contract contingency to be unconstitutional. Citing the United Steel Workers V. Weber in their decision. Declaring that unless there was solid evidence of past discrimination contractually binding tenure rights take precedence over racial quotas (P. 313).
One of my favorite sayings is “ The path to hell is paved with good intentions”. Some of the downstream ramifications Affirmative Action laws embodied the wisdom in this old idiomatic statement. The unadulterated goal of Affirmative Action laws is laudable but is too broadly applied. While this conflict between tenure rights and racial quotas may have not been foreseeable, it exposes the Achilles’ Heel of top-down government solutions. It is impossible to plan for every conflict that can arise from a loophole or other notable blemish in the legislation. Being more Hayekian in my worldview I am more inclined to view these flaws as a result of asymmetries in information. Reminding us that most government initiatives fall flat in attempting to achieve their lofty goals.