The answer to that question is, sometimes. One would think this is clearly such an instance: Minneapolis teachers union contract calls for layoffs of white teachers first. That sounds like naked race discrimination by a government entity, but is it illegal?
First, some facts:
A Minneapolis teachers union contract stipulates that white teachers will be laid off or reassigned before “educators of color” in the event Minneapolis Public Schools (MPS) needs to reduce staff.
The agreement adds that non-white teachers, as well as those working in various programs, “may be exempted from district-wide layoff[s] outside seniority order.” The agreement also prioritizes the reinstatement of teachers from “underrepresented populations” over white teachers.
The Star Tribune reports that the “seniority-disrupting language” of the agreement is one of the first of its kind in the entire United States. Teachers are normally laid off or excessed based on seniority alone, but the new agreement adds a racial component as well.
Can that possibly pass constitutional muster? Hans Bader takes up the case at Liberty Unyielding (links in original omitted):
This violates a well-known Supreme Court decision overturning the race-based layoff of a white teacher, and contradicts a well-known federal appeals court decision, which ruled that race-based layoffs of white teachers violate Title VII of the Civil Rights Act.
It is illegal under Title VII of the Civil Rights Act. When it comes to termination (as opposed to hiring or promotion under an affirmative-action plan), an employer can’t racially discriminate even against whites. The Third Circuit Court of Appeals ruled in 1996 that an school district can’t consider race even as a tie-breaker, in deciding who to lay off, even to promote diversity, because that (a) unduly trammels the white teacher’s rights — even affirmative action plans are supposed to be mild and not unduly trammel someone’s rights, and getting fired as opposed to being denied a promotion unduly trammels someone’s rights — and (b) putting that aside, the school district couldn’t consider race to promote diversity when black people weren’t seriously underrepresented in its workforce as a whole. That ruling was Taxman v. Board of Education of Piscataway, 91 F.3d 1547 (3d Cir. 1996).
It is also unconstitutional, for more complicated reasons, under the Supreme Court’s decision in Wygant v. Jackson Board of Education (1986). In that case, the Supreme Court overturned race-based layoffs by a 5-to-4 vote. Five justices said a school district can’t lay off white teachers to remedy societal discrimination against blacks. Four of those five also said that the Constitution forbids laying off people based on race (as opposed to considering race in hiring and promotions) even to remedy a school district’s own discrimination. (Justice Powell’s opinion announcing the judgment of the court, and also Justice White’s concurrence).
The provision also appears to be unconstitutional for an additional reason, because there does not appear to be a “strong basis in evidence” for the collective bargaining agreement’s claim that there are “continuing effects of past discrimination by the District.” The Supreme Court requires proponents of racial preferences to have a “strong basis in evidence” for the claim that blacks were subjected to discrimination by the institution giving them a preference, and that there are lingering effects of that discrimination. See, e.g., Shaw v. Hunt, 517 U.S. 899 (1996).
Hans points out that the teachers’ union may share liability with the school district. That is music to my ears:
Since the teachers union supported the adoption of this discriminatory provision, it may also be liable for discrimination along with the school district. Unions are subject to liability for racial discrimination under Title VII, see, e.g., Woods v. Graphic Communications (1991), and the Supreme Court has ruled that people who conspire with the government to discriminate can sometimes be sued along with it, see Adickes v. S.H. Kress & Co. (1971).
Liberals love to tell us how devoted they are to the rule of law, but they think nothing of engaging in race discrimination that appears to be plainly illegal under federal court precedents. This looks like a case for the Upper Midwest Law Center, which has already put out a call for injured teachers to contact the Law Center, whose work you can support here.