Executive Summary: Minneapolis public school teachers of color will have additional job protections this upcoming school year under a new contract allowing them to keep their jobs rather than white instructors with more seniority. The provision is unusual among collectively bargained agreements in education, which generally prioritize seniority when providing job protection.
Background: On March 25, ending a 14-day teacher strike, the Minneapolis Federation of Teachers (MFT) and Minneapolis Public Schools (MPS) reached an agreement, ratifying a new collective bargaining agreement (CBA). Under the terms of the new CBA, if the MPS implements a reduction of staff, white teachers will be laid off or reassigned before “educators of color.”
To revise how the district hires and retains teachers of color, the new contract states: “Starting with the Spring 2023 Budget Tie-Out Cycle, if excessing [laying off or relocating] a teacher who is a member of a population underrepresented among licensed teachers in the site, the District shall excess the next least senior teacher, who is not a member of an underrepresented population.”
Potential Constitutional and Statutory Concerns: This provision, however, may be subject to challenge as possibly violating the U.S. Constitution or Title VII of the 1964 Civil Rights Act, or both. The U.S. Supreme Court has held that a school district cannot lay off white teachers to remedy societal discrimination against black teachers. In Wygant v. Jackson Board of Education (1986), addressing claims under the Equal Protection Clause of the Fourteenth Amendment, the Supreme Court distinguished between preferential layoff schemes and cases involving valid hiring goals and stated that "layoffs impose the entire burden of achieving racial equality on particular individuals, often resulting in serious disruption of their lives. That burden is too intrusive." Similarly, in a Title VII case, the Third Circuit Court of Appeals held that a school district could not consider race in deciding who to lay off, even to promote diversity. See Taxman v. Board of Education of Piscataway (1996). The court noted that “the harm imposed upon a nonminority employee by the loss of his or her job is so substantial and the cost so severe” it would unduly trammel the white teacher’s rights.
Minneapolis’ race-based layoff provision may be subject to challenge on similar grounds. Under current case law, it is unclear whether the policy’s purpose, which is to solve “past discrimination” by the district that “disproportionately impacted the hiring of underrepresented teachers in the District, as compared to the relevant labor market and community, and resulted in a lack of diversity of teachers,” would be sufficient to justify the policy. The U.S. Supreme Court has required proponents of racial preferences to have a “strong basis in evidence” of recent, widespread, intentional discrimination to justify the preferences.
In trying to remedy discrimination, both the teachers’ union and the school district may, ironically, have opened themselves to potential liability for discrimination.
Bottom Line: Although the provision may violate Title VII and the U.S. Constitution, the CBA is set to become active in 2023. Lawsuits are already being drafted in opposition. If courts rule in favor of the provision, it is possible that other unions nationwide will look to implement similar policies, changing the long-held unspoken rule that seniority is the ultimate job protector. We will keep you updated on developments. If you have any questions regarding this Alert, please contact the author, Michael Lewis, an attorney in our Hartford office at mplewis@fordharrison.com. Of course, you can also contact the FordHarrison attorney with whom you usually work.