Elmer Britton v. South Bend Community School Corporation
This text of 775 F.2d 794 (Elmer Britton v. South Bend Community School Corporation) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinions
CUDAHY, Circuit Judge.
This is a “reverse discrimination” case in which we are required to determine whether a clause in a collective bargaining agreement between a teachers’ union and a school district that prohibits layoffs of “minority” teachers, and layoffs of white teachers pursuant to that clause, violate either the Equal Protection Clause of the Fourteenth Amendment or Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Although the district court relied on its earlier decision in Janowiak v. Corporate City of South Bend, 576 F.Supp. 1461 (N.D.Ind.1983), rev’d, 750 F.2d 557 (7th Cir.1984), which we reversed after the district court issued its opinion in this case approving the clause, 593 F.Supp. 1223 (N.D.Ind.1984), we affirm the district court.
I.
A.
Between the years 1980 and 1983 teacher employment in the South Bend public schools was governed by a collective bargaining agreement between the South Bend Community School Corporation (the “School Corporation”) and the National Education Association of South Bend, the exclusive bargaining representative of teachers in the South Bend public school system. Article XXIII of the 1980-83 Agreement was entitled “Reduction in Force — Recall” and provided in Section 9: “No minority bargaining unit employee shall be laid off.” The term “minority” in this “no minority layoff provision” (sometimes simply the “provision” or “clause”) referred only to black teachers. The clause had not appeared in any prior collective bargaining agreement between the School Corporation and NEA-South Bend.
Prior to and during the negotiations over the 1980-83 Agreement, the School Corporation anticipated the possibility of future layoffs because of declining school enrollment and budgetary constraints. It proposed the no minority layoff provision to protect the gains it had made in hiring black teachers to reach the goal, mandated by a prior consent decree, of having the minority representation on the teaching staff approximately equal that of the minority student population. The negotiations leading up to the 1980-83 Agreement lasted two weeks. Representatives of NEA-South Bend met with the teachers after the negotiations concluded to discuss the terms of the Agreement. Article XXIII, Section 9 was discussed at that meeting. 593 F.Supp. at 1226. The exact language of the provision was not presented at the meeting, but the document distributed to the teachers listed changes in articles from previous contracts and clearly indicated that the clause would prefer blacks over whites in the event of layoffs. Teachers who were not members of the NEA-South Bend (about one-fourth of the South Bend teachers) were allowed to attend that meeting but were not allowed to vote. Those [797]*797teachers who were members of the union ratified the Agreement by a substantial margin. Inj. Tr. 83-88.1 No member of the union ever filed a claim for unfair representation under the Indiana Code. See 4 Ind.Code § 20-7.5-1-7 (1982); 593 F.Supp. at 1226 (apparently mistakenly labeling the appropriate claim as a “grievance.”)
Late in April of 1982, 188 white teachers were notified that their contracts were being considered for cancellation. After various proceedings including an all-night hearing on June 1 to 2, 1982, the Board passed a resolution on June 7 affirming the contract cancellations and laying off the 188 teachers. See 593 F.Supp. at 1226-27. Pursuant to Article XXIII, Section 9 of the 1980-83 Agreement, no black teachers were laid off. The number of teachers laid off was subsequently reduced to 146 under a consent order in South Bend Community School Corp. v. National Education Association-South Bend, No. N-7015 (St. Joseph Cir.Ct., approved Sept. 29, 1982), in which the School Corporation agreed to recall forty-two teachers. 593 F.Supp. at 1227 n. 2. Because of the no minority layoff provision, forty-eight black teachers with certifications similar to, but with less seniority than, forty-eight of the laid off white teachers remained on the job.
On June 11, 1982, two of the laid off white teachers filed -a class action suit in the United States District Court for the Northern District of Indiana, alleging that the layoffs discriminated against them on account of their race in violation of the Fourteenth Amendment, 42 U.S.C. §§ 1981 & 1983, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Indiana Teacher Tenure Act, Ind.Code § 20-6.1-4-1 et seq. (1982). Britton v. South Bend Community School Corp., No. S82-283 (N.D.Ind. filed June 11, 1982). The complaint was amended to delete the class action aspect, and eventually forty-one individual teacher plaintiffs were named instead.2
On October 5, 1982, the teachers filed an action in the Indiana courts against the School Corporation and its Board of Trustees (sometimes simply the “Board”) for a mandate under section 20-6.1-4-12 of the Indiana Code based on alleged violations of the Indiana Teacher Tenure Act, violations of rights resulting from the manner in which the layoff hearings were conducted and other state claims. Andrews v. South Bend Community School Corp., No. P-1077 (St. Joseph Cir.Ct. filed Oct. 5, 1982). The defendants removed this case to federal court, where it received case number S82-485 and was consolidated with Britton.
Plaintiff teachers filed a motion for a preliminary injunction on October 5, 1982, Record Item 14, upon which the court held an evidentiary hearing on November 9 and 10, 1982, and oral argument on December 2, 1982. Cf. 593 F.Supp. at 1228. The motion was denied by order on December 15, 1982. The issue of liability was tried to the court in a two-day trial on April 26 and 27, 1984. Both sides submitted post-trial briefs and proposed findings of fact and conclusions of law. Oral argument was heard on August 3, 1984.
On September 25, 1984, the district court entered a memorandum and order. 593 [798]*798F.Supp. at 1223. In its decision the district court found for the defendants on the federal claims, holding the no minority layoff clause to be constitutional and permissible under Title VII. The court declined to exercise its pendent jurisdiction over the plaintiffs’ state law claims, and dismissed them without prejudice. The teachers appeal, arguing that the no minority layoff clause (and the layoffs they suffered pursuant to it) violate (1) the Equal Protection Clause of the Fourteenth Amendment, (2) Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and (3) the Indiana Teacher Tenure Act, Ind.Code § 20-6.1-4-1 et seq. (1982).
B.
The long history of racial segregation and discrimination in Indiana is chronicled in detail in United States v.
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CUDAHY, Circuit Judge.
This is a “reverse discrimination” case in which we are required to determine whether a clause in a collective bargaining agreement between a teachers’ union and a school district that prohibits layoffs of “minority” teachers, and layoffs of white teachers pursuant to that clause, violate either the Equal Protection Clause of the Fourteenth Amendment or Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Although the district court relied on its earlier decision in Janowiak v. Corporate City of South Bend, 576 F.Supp. 1461 (N.D.Ind.1983), rev’d, 750 F.2d 557 (7th Cir.1984), which we reversed after the district court issued its opinion in this case approving the clause, 593 F.Supp. 1223 (N.D.Ind.1984), we affirm the district court.
I.
A.
Between the years 1980 and 1983 teacher employment in the South Bend public schools was governed by a collective bargaining agreement between the South Bend Community School Corporation (the “School Corporation”) and the National Education Association of South Bend, the exclusive bargaining representative of teachers in the South Bend public school system. Article XXIII of the 1980-83 Agreement was entitled “Reduction in Force — Recall” and provided in Section 9: “No minority bargaining unit employee shall be laid off.” The term “minority” in this “no minority layoff provision” (sometimes simply the “provision” or “clause”) referred only to black teachers. The clause had not appeared in any prior collective bargaining agreement between the School Corporation and NEA-South Bend.
Prior to and during the negotiations over the 1980-83 Agreement, the School Corporation anticipated the possibility of future layoffs because of declining school enrollment and budgetary constraints. It proposed the no minority layoff provision to protect the gains it had made in hiring black teachers to reach the goal, mandated by a prior consent decree, of having the minority representation on the teaching staff approximately equal that of the minority student population. The negotiations leading up to the 1980-83 Agreement lasted two weeks. Representatives of NEA-South Bend met with the teachers after the negotiations concluded to discuss the terms of the Agreement. Article XXIII, Section 9 was discussed at that meeting. 593 F.Supp. at 1226. The exact language of the provision was not presented at the meeting, but the document distributed to the teachers listed changes in articles from previous contracts and clearly indicated that the clause would prefer blacks over whites in the event of layoffs. Teachers who were not members of the NEA-South Bend (about one-fourth of the South Bend teachers) were allowed to attend that meeting but were not allowed to vote. Those [797]*797teachers who were members of the union ratified the Agreement by a substantial margin. Inj. Tr. 83-88.1 No member of the union ever filed a claim for unfair representation under the Indiana Code. See 4 Ind.Code § 20-7.5-1-7 (1982); 593 F.Supp. at 1226 (apparently mistakenly labeling the appropriate claim as a “grievance.”)
Late in April of 1982, 188 white teachers were notified that their contracts were being considered for cancellation. After various proceedings including an all-night hearing on June 1 to 2, 1982, the Board passed a resolution on June 7 affirming the contract cancellations and laying off the 188 teachers. See 593 F.Supp. at 1226-27. Pursuant to Article XXIII, Section 9 of the 1980-83 Agreement, no black teachers were laid off. The number of teachers laid off was subsequently reduced to 146 under a consent order in South Bend Community School Corp. v. National Education Association-South Bend, No. N-7015 (St. Joseph Cir.Ct., approved Sept. 29, 1982), in which the School Corporation agreed to recall forty-two teachers. 593 F.Supp. at 1227 n. 2. Because of the no minority layoff provision, forty-eight black teachers with certifications similar to, but with less seniority than, forty-eight of the laid off white teachers remained on the job.
On June 11, 1982, two of the laid off white teachers filed -a class action suit in the United States District Court for the Northern District of Indiana, alleging that the layoffs discriminated against them on account of their race in violation of the Fourteenth Amendment, 42 U.S.C. §§ 1981 & 1983, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Indiana Teacher Tenure Act, Ind.Code § 20-6.1-4-1 et seq. (1982). Britton v. South Bend Community School Corp., No. S82-283 (N.D.Ind. filed June 11, 1982). The complaint was amended to delete the class action aspect, and eventually forty-one individual teacher plaintiffs were named instead.2
On October 5, 1982, the teachers filed an action in the Indiana courts against the School Corporation and its Board of Trustees (sometimes simply the “Board”) for a mandate under section 20-6.1-4-12 of the Indiana Code based on alleged violations of the Indiana Teacher Tenure Act, violations of rights resulting from the manner in which the layoff hearings were conducted and other state claims. Andrews v. South Bend Community School Corp., No. P-1077 (St. Joseph Cir.Ct. filed Oct. 5, 1982). The defendants removed this case to federal court, where it received case number S82-485 and was consolidated with Britton.
Plaintiff teachers filed a motion for a preliminary injunction on October 5, 1982, Record Item 14, upon which the court held an evidentiary hearing on November 9 and 10, 1982, and oral argument on December 2, 1982. Cf. 593 F.Supp. at 1228. The motion was denied by order on December 15, 1982. The issue of liability was tried to the court in a two-day trial on April 26 and 27, 1984. Both sides submitted post-trial briefs and proposed findings of fact and conclusions of law. Oral argument was heard on August 3, 1984.
On September 25, 1984, the district court entered a memorandum and order. 593 [798]*798F.Supp. at 1223. In its decision the district court found for the defendants on the federal claims, holding the no minority layoff clause to be constitutional and permissible under Title VII. The court declined to exercise its pendent jurisdiction over the plaintiffs’ state law claims, and dismissed them without prejudice. The teachers appeal, arguing that the no minority layoff clause (and the layoffs they suffered pursuant to it) violate (1) the Equal Protection Clause of the Fourteenth Amendment, (2) Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and (3) the Indiana Teacher Tenure Act, Ind.Code § 20-6.1-4-1 et seq. (1982).
B.
The long history of racial segregation and discrimination in Indiana is chronicled in detail in United States v. Board of School Commissioners of Indianapolis, 332 F.Supp. 655, 658-77 (S.C.Ind.1971), aff'd, 474 F.2d 81 (7th Cir.), cert. denied, 413 U.S. 920, 93 S.Ct. 3066, 37 L.Ed.2d 1041 (1973); see also Note, Indianapolis Desegregation: Segregative Intent and the Interdistrict Remedy, 14 Ind.L.Rev. 799, 803-04 (1981). Slavery and legally sanctioned discrimination against blacks existed during Indiana’s territorial period and during its early history as a state. 332 F.Supp. at 659-61, 663. Even in the preCivil War years Indiana’s public schools were segregated or simply excluded black children. Id. at 663. Ratification of the Fourteenth Amendment had little effect in Indiana’s schools; the state passed a statute in 1869 authorizing black children to attend school, but requiring segregated systems. Id. at 663-64. Indeed, the statutes of Indiana required segregated schools up until 1949. Act of March 8, 1949, ch. 186, 1949 Ind.Acts 603 (present version codified at Ind.Code § 20-8.1-2-1 et seq. (1982)).
Our review of the record indicates that the earliest period for which there is information about the percentage of minority teachers is 1963-64. For that period the minority teaching staff in South Bend was only 3.5% of the total teaching staff. Def. Ex. H. In 1968-69 minority teachers accounted for a slightly increased 6.8% of the teaching staff.3 Id. For 1969 and later years, the record includes more expansive evidence of past discrimination by South Bend in the recruitment, hiring and promotion of minority teachers.4 On March 13, 1975, Kenneth Mines, director for Region V of the Office for Civil Rights of the then Department of Health, Education, and Welfare, sent a letter to the Superintendent of the School Corporation. Def. Ex. M-6. The letter refers to an October 1969 on-site review of the School Corporation’s compliance with Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d. The review encompassed complaints by several groups and individual citizens of discriminatory and segregative practices,5 and other aspects of the School Corporation’s compliance. The letter listed five areas in which the Office for Civil Rights found evidence of racial discrimination on the part of the School Corporation. Two of these areas were recruitment of minority teachers and promotions for black and female teachers. The letter also stated that the Office had reviewed recent (January and October 1974) statistical forms completed by the [799]*799Superintendent’s office. According to the letter, these forms “indicate little improvement with regard to hiring and promotion of minority teachers.” Def. Ex. M-6, at 2.
Superintendent Dake responded in a lengthy letter of April 11, 1975. Def. Ex. M-5. Among other things the letter detailed the School Corporation’s efforts to recruit minority teachers, which included visits to a number of predominantly black colleges and universities in 1971-72, and more in 1973. The letter listed the number of new minority staff hired for the seven academic years 1968-69 to 1974-75 (total-ling 165) and tried to explain the small change in total minority staff by the number of minority staff resignations (109) over the same period.6 Def. Ex. M-5, at 6-7.
In August 1975 the Regional Office of the OCR sent a letter to many school districts, including South Bend. Def. Ex. M-4. The letter concerned the possible discriminatory impact of layoffs carried out pursuant to seniority rules. The letter stated that seniority rules were not racially unbiased if they perpetuated the effect of past discriminatory personnel practices in recruitment, hiring, promotion and assignment. The letter noted that in the case of school districts that had failed to hire minority teachers until recent years, and so would have a disproportionate number of such persons with low seniority status, the use of a system-wide standard would have a disproportionate — and hence potentially discriminatory — effect on minority group persons. Def. Ex. M-4, at 1-2.
The Office for Civil Rights conducted a second on-site review in 1975, but remained unsatisfied. By letter of October 6, 1975, the Office informed the School Corporation that it had determined that the School Corporation was not in compliance with the provisions of Title VI. Def. Ex. M-3. In particular, the letter remarked on the racially discriminatory teacher assignment practices of the School Corporation, and required the School Corporation to submit within forty-five days a plan that would eliminate any vestiges of past discrimination. Def. Ex. M-3, at 3. After further consultation and correspondence with the School Corporation, the Office for Civil Rights, by letter of March 8, 1976, directed the School Corporation to submit a compliance plan that included an assurance that the Corporation would in the future maintain non-discriminatory recruitment, hiring and assignment practices. Def. Ex. M-2, at 4.
Meanwhile, a number of individuals had filed an action in the United States District Court for the District of Columbia seeking an injunction directing the Department of Health, Education, and Welfare to commence enforcement proceedings against several school districts that had been found by HEW not to be in compliance with Title VI. Among the named school districts was the South Bend Community School Corporation. The District Court found that the School Corporation had been found in violation of Title VI and that neither voluntary compliance had been achieved nor enforcement proceedings had been instituted, and ordered HEW to commence enforcement proceedings. Brown v. Weinberger, 417 F.Supp. 1215 (D.D.C.1976).
In 1978 the Board of Trustees considered certain aspects of past discrimination in the school system and ways to eradicate its effects. The discussions began when, at the last meeting during her term as a member of the Board, held on June 19, 1978, Ms. Eugenia Braboy moved that the Board adopt a resolution setting a five-year goal within which to adopt and implement programs to reduce the racial imbalance in the school system (and especially that associated with racially identifiable schools). The [800]*800proposed resolution passed unanimously. Def. Ex. K-l.
Discussions were held at several subsequent Board meetings focusing on prior discrimination manifested in the extremely low percentages of minorities on the School Corporation’s teaching staff. Tr. Tr. 90-91; Def. Exs. K-1 to K-5 (minutes of school board meetings); 593 F.Supp. at 1225. Past discrimination in the recruitment, hiring and assignment of minority teachers was said to be reflected in and to be the cause of the gross disparity between the percentage of black teachers employed by the School Corporation and the percentage of blacks in either the student body or local community. Def. Exs. E-1, E-2. The percentage of blacks in the student body and in the community approximated 22% in late 1978 while the percentage of black teachers was only 10.4%.
The statistical. evidence presented was not merely of a present disparity between the percentages of minority teachers and minority students. Rather it ranged over a period of at least eight years. See, e.g., Def. Ex. K-3; at 2; see also Def. Exs. E-1, E-2.
Although no statistics were presented to the effect that the School Corporation had been hiring a disproportionately small number of black teachers,7 there was testimony that there was no shortage of qualified black applicants for teaching positions. Def. Ex. K-2. There was testimonial evidence that implied that five particular qualified black applicants had not been hired because of their race. Def. Ex. K-2, at 2. Testimonial evidence also established that the School Corporation had a practice of posting full-time vacancies so they could be filled by hiring substitute teachers already employed by the School Corporation, and that principals’ requests that a particular substitute be hired for a vacancy were often honored. Only if no candidate could be found within the School Corporation would the position be advertised and recruiting from the outside take place. Def. Ex. K-3.
As a result of the discussions at the meetings held during the fall, on December 18, 1978, the Board adopted Resolution 1020. App. 31-34.8 Resolution 1020 states that “[providing the community with quality education should be the top priority in the schools,” App. 31, and sets out the School Corporation’s policies and employment goals. Two of the goals adopted in Resolution 1020 were (1) that the School Corporation would strive to increase the percentage of minorities in its teaching force until that percentage “approximately corresponded]” to the percentage of minorities in its student body, and (2) that the School Corporation would “endeavor to exceed each year the previous year’s employment figures for minority personnel ... until the minimum desired percentages [were] reached.” App. 34. In the three years following the adoption of Resolution 1020 the School Corporation hired a greater percentage of black teachers than it had in any comparable prior period. As a result, the percentage of black teachers rose from 10.4% for the 1978-79 academic year to 13.0% for the 1981-82 academic year. During the latter year black pupils made up 25.42% of the student population. 593 F.Supp. at 1225.
The Department of Justice filed suit against the School Corporation on February 8, 1980. United States v. South Bend Community School Corp., No. S80-35 [801]*801(N.D.Ind. filed Feb. 8, 1980).9 Its complaint alleged that the School Corporation had engaged in acts of racial discrimination intended to have and having the effect of segregating students and teachers on the basis of race. Among these acts were the hiring, promotion and assignment of faculty on the basis of race. Appended to the complaint was a certificate by the Attorney General (as required by 42 U.S.C. § 2000c-6(a)) stating that he had received complaints of racial discrimination and school segregation and had investigated the complaints and determined that they were meritorious.
The case was settled by a consent order the same day it was commenced. Def. Ex. C—1, App. 35. As in most consent decrees, the defendant School Board denied that it had engaged in intentional acts of racial discrimination.10 The consent order required the School Corporation to develop a specific desegregation plan for student assignments by September 1, 1980. The consent order also required the School Corporation to rectify the effect of past discrimination against teachers, and provided:
6. By the beginning of the 1980-81 school year, the faculties of each school operated by the School Corporation shall be appropriately adjusted so that each approximately reflects the average racial composition, teaching experience, and teaching disciplines of the faculty of the school system as a whole. Educational and extracurricular programs shall be equal for each school serving similar grade levels and similar student needs.
8. The Board of School Trustees shall continue to pursue its present affirmative action hiring policies.
Consent Order at 3, App. 37. The Board’s affirmative action policy was set out in Resolution 1020. Thus, the consent order, by mandating continuation of that policy, required the Board to continue to increase the percentage of minorities on its teaching staff until that percentage equalled or roughly approximated the percentage of minority pupils in the student body, and to endeavor to exceed each year the previous year’s employment figures for minority personnel. And it was in furtherance of that policy, in light of expected school enrollment and budgetary constraints, that the no minority layoff clause was proposed by the School Corporation, agreed to by the teachers’ negotiators and strongly ratified by the union teachers.11
II.
The Supreme Court has consistently held that a governmental body may use race-conscious plans to eradicate the effects of past discrimination. Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 [802]*802L.Ed.2d 902 (1980); Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978); United Jewish Organizations v. Carey, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229 (1977); Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); McDaniel v. Barresi, 402 U.S. 39, 91 S.Ct. 1287, 28 L.Ed.2d 582 (1971); North Carolina Board of Education v. Swann, 402 U.S. 43, 91 S.Ct. 1284, 28 L.Ed.2d 586 (1971). In Bakke and Fullilove the court held that affirmative action plans voluntarily adopted by governmental bodies are not per se unconstitutional. Fullilove, 448 U.S. at 482, 100 S.Ct. at 2776; Bakke, 438 U.S. at 287, 98 S.Ct. at 2746; see Janowiak v. Corporate City of South Bend, 750 F.2d 557, 561 (7th Cir.1984), petition for cert. filed, 53 U.S.L.W. 3896 (U.S. June 10, 1985) (No. 84-1936). Similarly, the Court has held that employers may adopt affirmative action plans to remedy past discrimination. United Steelworkers of America v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979); Janowiak, 750 F.2d at 561. Thus, race-conscious programs do not, as a matter of law, violate either Title VII or the Equal Protection Clause of the Fourteenth Amendment. Janowiak, 750 F.2d at 561. The inquiry before this court, therefore, is whether this particular affirmative action plan is valid under the constitution and Title VII. We will begin with an analysis of the plan provision under Title VII.
III.
In United Steelworkers of America v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979), the Supreme Court provided guidelines for analyzing the validity of an affirmative action plan under Title VII. The Court declined in Weber to promulgate a general test to distinguish between permissible and impermissible affirmative action plans. Weber, 443 U.S. at 208, 99 S.Ct. at 2729. However, the Court did find that the plan before it lay on the permissible side of the line. Id. The plan had been entered into by the employer and the union in order to “eliminate conspicuous racial imbalances in Kaiser’s then almost exclusively white craftwork forces,” 443 U.S. at 198, 99 S.,Ct. at 2724, by reserving for blacks half the openings in newly-created in-plant training programs. Prior to initiation of the in-plant training programs, Kaiser had only hired as craft-workers for its plants persons with prior craft experience (who were almost all white because craft unions had long excluded blacks). Id. The Court took judicial notice of the fact that craft unions excluded blacks. 443 U.S. at 198 n. 1, 99 S.Ct. at 2725 n. 1 (“Judicial findings of exclusion from crafts on racial grounds are so numerous as to make such exclusion a proper subject for judicial notice.”). Thus, the purpose of the plan mirrored those of the statute, for it was “designed to break down old patterns of racial segregation and hierarchy.” 443 U.S. at 208, 99 S.Ct. at 2729. Second, the plan did not “unnecessarily trammel the interests of the white employees.” Id. The Court concluded, therefore, that the plan fell “within the area of discretion left by Title VII to the private sector voluntarily to adopt affirmative action plans designed to eliminate conspicuous racial imbalance in traditionally segregated job categories.” 443 U.S. at 209, 99 S.Ct. at 2730 (footnote omitted).
On its facts Weber dealt with whether and to what extent a private employer could adopt an affirmative action plan consistent with Title VII. Title VII applies as well to public employers, including states and their official agencies. See 42 U.S.C. § 2000e(a), (b), (h) (codifying amendments made by § 2(1), (2), (6) of the Equal Employment Opportunity Act of 1972, Pub.L. No. 92-261, 86 Stat. 103). The analysis from Weber has been applied to governmental employers, so that an affirmative action plan that satisfies the Weber criteria will insulate the employer from Title VII liability for particular employment decisions pursuant to it. Janowiak, 750 F.2d at 562-63; Bushey v. New York State Civil Service Commission, 733 F.2d 220, 227 n. 8 (2d Cir.1984) (“We reject Plaintiffs’ [803]*803contention that Weber ... is inapplicable because the employer in Weber was a private entity whereas here it is a public entity.”), cert. denied, — U.S.-, 105 S.Ct. 803, 83 S.Ct. 795 (1985); Bratton v. City of Detroit, 704 F.2d 878, 884 (6th Cir.), modified in other respects, 712 F.2d 222 (6th Cir.1983), cert. denied, 464 U.S. 1040, 104 S.Ct. 703, 79 L.Ed.2d 168 (1984); La Riviere v. EEOC, 682 F.2d 1275, 1279 (9th Cir.1982) (collecting cases); see Deveraux v. Geary, 765 F.2d 268, 274 n. 5 (1st Cir.1985) (collecting additional eases); see also United States v. City of Chicago, 573 F.2d 416, 423 (7th Cir.1978) (Title VII standards do not vary depending on whether defendant is a public or private employer).
Based on the Weber Court’s reliance on the employer’s determination of a “conspicuous racial imbalance” in what it took judicial notice to be a “traditionally segregated job category,” this court has interpreted Weber as requiring that governmental affirmative action plans “be based upon findings of past discrimination by a competent body.” Janowiak, 750 F.2d at 561; cf. Lehman v. Yellow Freight System, Inc., 651 F.2d 520, 527 n. 14 (7th Cir.1981) (refusing to decide whether objectives other than remedying past discrimination would support private affirmative action plans). In Janowiak, we determined that on a summary judgment motion it was improper to conclude that as a matter of law an affirmative action plan survived a Title VII challenge when the plan was adopted solely on the grounds of a present statistical disparity between employees and the relevant labor pool and in spite of the fact that two review boards had found the hiring practices reasonable. Janowiak, 750 F.2d at 562-63.
v
The first step in a Weber analysis under Janowiak is to determine whether there has been a finding of past- discrimination “by a competent body.” In Janowiak we held that the South Bend Board of Public Safety was a body competent both to make findings of past discrimination and to implement an affirmative action plan “because the Board is the ‘administrative body legally responsible for the operation of the South Bend Fire Department.’ ” Janowiak, 750 F.2d at 561 (quoting Ind.Code Ann. § 36-8-3-2 (West 1983)).12 Here, of course, the Board of Trustees is the body legally responsible for operating the South Bend school district. Therefore it is competent both to make findings of past discrimination and to implement an affirmative action plan. But the Board is not the only body involved here — the Office for Civil Rights of HEW, the United States Department of Justice, and the United States District Courts for the District of Columbia and the Northern District of Indiana have been involved. The plaintiffs do not, as they could not, argue that courts or the Office of Civil Rights or the Department of Justice are not bodies competent to make the required findings.
Rather, they argue that any findings that were made by these bodies are not adequate. We disagree. None of the findings here were based solely on evidence [804]*804of a present “statistical disparity between the percentage of minorities employed and the percentage of minorities within the community.” Janowiak, 750 F.2d at 562. Nor, of course, did the district court here approve the no minority layoff provision as a matter of law on summary judgment.
The no minority layoff provision was adopted by the Board and the teachers as a way to further Resolution 1020 in the face of possible layoffs necessitated by enrollment decline and budget constraints. Resolution 1020 was adopted by the Board after a series of meetings at which it considered the problem of the vestiges of past discrimination in the school system. It is true that the Board received statistics concerning the percentages of minority teachers and pupils in the school system. The statistics were not, however, merely for the current year, but covered a number of years. Further, the Board heard nonstatis-tical evidence. There was testimony that there was not a shortage of black applicants for teaching positions. Def. Ex. K-2. There was also testimony that there were “at least five people who have met the qualifications to become a teacher and have applied for positions and have not been hired, all blacks.” Def. Ex. K-2, at 2. Further, there was testimony indicating that vacancies were first posted so that substitute teachers could apply for them before the vacancies were advertised outside the school system, and that principals often requested that substitutes be appointed to vacancies. Def. Ex. K-3. Obviously, this hiring practice would tend to perpetuate the effects of any past discrimination in hiring substitute teachers. We believe that this evidentiary basis meets every test of legal sufficiency and is a broad foundation on which the School Board was authorized and in fact required to adopt Resolution 1020. See Janowiak, 750 F.2d at 564.
The difference between the evidence in this case and in Janowiak is highlighted by a fact crucial to our decision in Janowiak. In that case a Minority Recruitment Task Force and a Minority Recruitment Review Committee, both of which had been constituted by the South Bend Board of Public Safety to study the hiring procedures for the city’s fire department, reviewed the department’s application and hiring procedures. Both the Task Force and the Review Committee found that the application and testing procedures were reasonable and not discriminatory and recommended that they be retained. 750 F.2d at 558-59. Here, however, no task force, review committee or other body ever studied the School Corporation’s past recruitment and hiring practices and determined that these were reasonable.
Indeed, the direct opposite is the case. The Office for Civil Rights of HEW studied those policies and other aspects of the operation of the school system, and concluded that the School Corporation discriminated against minority teachers on the basis of race. This conclusion was, of course, based on more than a showing of present statistical disparity between the percentages of minority teachers and pupils. The OCR conducted two on-site investigations of the School Corporation and reviewed complaints from individuals and organizations.
This administrative finding of past discrimination in the recruiting and hiring of minority teachers was confirmed in Brown v. Weinberger, 417 F.Supp. 1215 (D.D.C.1976). In Brown, the district court also found that the School Corporation had not brought itself into compliance with Title VI.
It was in response to the HEW and district court findings, as well as in a response to the concerns of citizens, that the Board began its consideration of minority hiring practices that lead to the adoption of Resolution 1020. Further, two years later the Attorney General certified that he had investigated complaints of race discrimination and school segregation and believed that the complaints were meritorious. This investigation was the basis of the Department of Justice suit that was settled by the consent decree requiring the School Corporation to continue its affirmative action hir[805]*805ing policies embodied in Resolution 1020. United States v. South Bend Community School Corp., No. S80-35 (N.D.Ind. Feb. 8, 1980).
We believe that the findings of past discrimination here are clearly sufficient to support the School Corporation’s affirmative action policy, including both Resolution 1020 and the no minority layoff clause, in the face of a Title VII challenge. See Kromnick v. School District of Philadelphia, 739 F.2d 894, 904-06 (3d Cir.1984), cert. denied, — U.S.-, 105 S.Ct. 782, 83 L.Ed.2d 777 (1985); Valentine v. Smith, 654 F.2d 503, 507-10 (8th Cir.) (equal protection), cert. denied, 454 U.S. 1124, 102 S.Ct. 972, 71 L.Ed.2d 111 (1981); see also Part IV A, infra. Further, if we felt it were necessary (which it is not because the findings of past discrimination satisfy the Janowiak requirements) we would not hesitate to follow the Supreme Court’s lead and take judicial notice of the fact that teaching is a “traditionally segregated job category.” 13 A study of racial practices in Indiana schools — segregated by law until 1949 — certainly affords no basis for doubt that black teachers suffered discrimination in South Bend. A contrary conclusion would defy common sense.
The second prong of the Weber test requires that an affirmative action plan not “unnecessarily trammel the interests of the white employees.” 443 U.S. at 208, 99 S.Ct. at 2729. In Weber the court considered several factors in determining that the Kaiser plan was acceptable. The plan did not require the discharge of white workers and their replacement by new black hires nor did it create an absolute bar to the advancement of white employees. The plan was temporary and would end as soon as the percentage of black skilled craftworkers approximated the percentage of blacks in the local labor force. And the plan was not designed to maintain a racial balance but to eliminate a manifest racial imbalance. 443 U.S. at 208-09, 99 S.Ct. at 2729-30. We believe that a similar analysis shows that the no layoff provision of the 1980-83 Agreement does not unneces[806]*806sarily trammel the interests of the white teachers.14
First and most clearly, the provision is temporary. It is a term in the 1980-83 Agreement. Unless the union again agreed to the provision, it would expire when the Agreement terminated on August 15, 1983. As things worked out, the provision was both readopted and then altered in the 1983-84 collective bargaining agreement between the School Corporation and NEA-South Bend. The 1983-84 Agreement included the provision in identical language. Pl. Ex. 14, Art. XXIII, § 9. However, a Memorandum of Understanding appended to the 1983-84 Agreement set up a joint teacher-administrator committee to study the language of the no minority layoff clause and make recommendations for the 1984-85 contract negotiations. Pl. Ex. 14, at 61. The Memorandum further provided that if no agreement on a recommendation could be reached, the first thirty-five layoffs for the 1984-85 school year would be governed by the language of the no minority layoff provision. If further layoffs were necessary, they would be governed by the following language:
The percentage of minority bargaining unit employees employed during a year in which staff reductions are implemented shall reflect the same percentage of minority bargaining unit employees employed during the preceding year. This percentage shall be determined by dividing the number of minority bargaining unit employees by the total number of bargaining unit employees in the Corporation. The computation shall be mutually determined by the Association and the Corporation on or before February 1 of each year.
Id. In January 1984 the committee recommended the adoption of the following substitute clause:
Affirmative action is defined as maintaining the same percentage of minority teachers in each minority classification throughout a period of reduction in force as were employed prior to such a reduction. For the purposes of this contract, minority shall be defined as members of the Black and Hispanic Races.
593 F.Supp. at 1227-28 (quoting “Final Report of the Minority Language Committee” (Pl. Ex. 12) p. 17 § 5; App. 45).
In these circumstances the District Court was correct to reject the plaintiffs’ characterization of the provision as an ongoing racial-balance-maintenance measure. 593 F.Supp. at 1232. The provision was necessarily temporary because it was incorporated in a collective bargaining agreement of limited duration. See Kromnick v. School District of Philadelphia, 739 F.2d 894, [807]*807911-12 (3d Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 782, 83 L.Ed.2d 777 (1985). Further, the changes proposed by the Minority Language Committee, indeed the constitution of the committee itself, is strong evidence that the provision was always meant to be temporary.
Nor did the provision require the discharge of white teachers and their replacement by new black hires, or create an absolute bar to the advancement of the white teachers. It did require that some white teachers be laid off who would not otherwise have been laid off. The forty-eight white teachers who would not have been laid off but for the provision made up 3.33% of the School Corporation’s (before layoff) teaching staff of 1443 (and 3.77% of the after-layoff staff of 1274). Those who were laid off were at the head of the queue for rehire. And as the plaintiffs admit, all but twenty of the teachers originally laid off had been recalled by August 1984. 593 F.Supp. at 1231-32.15 The provision did not affect the hiring or promotion of whites, or of any teachers.
Furthermore, the district court found that testimony at trial established that the provision was designed to do nothing more than prevent the loss of the hiring gains that had been achieved since the Board had resolved to increase the percentage of its black teachers. 593 F.Supp. at 1232. This finding is not clearly erroneous. As the district court noted, in a period of “declining staff and student enrollment, layoff provisions are the only means of retaining any progress made in hiring procedures.” 593 F.Supp. at 1232.
The plaintiffs argue that two alternative methods could have preserved this gain and show that the provision unnecessarily trammel their rights. They claim that layoffs could have been effected pursuant to the rest of the seniority system, with black teachers recalled first, or that layoffs could have been made proportionally, as under the new contract and in the form approved in Wygant v. Jackson Board of Education, 746 F.2d 1152 (6th Cir.1984), cert. granted, — U.S.-, 105 S.Ct. 2015, 85 L.Ed.2d 298 (1985).16 Layoffs pursuant to the rest of the seniority system would have reduced the percentage of black teachers from 13.0% to 10.8%, barely higher than the percentage of black teachers on the staff at the time Resolution 1020 was adopted (10.4%). 593 F.Supp. at 1232. Layoffs under a proportionate system would have kept the percentage of black teachers at 13.0%. But Resolution 1020 also stated that it was a goal of the School Corporation to increase the percentage of minority employees every year, and Wygant does not hold that greater than proportionate layoffs are impermissible. In light of these factors we cannot say the no minority layoff provision trammeled, much less unnecessarily trammeled, the interests of the white teachers merely because layoffs pursuant to it raised the percentages of black teachers on the staff from 13.0% to 13.8%.
We conclude that the no minority layoff provision does not unnecessarily trammel the interests of the white teachers. And because the provision satisfies both prongs of the Weber test, it does not violate Title VII.
c.
The plaintiffs argue that Firefighters Local Union No. 1784 v. Stotts, 467 U.S. [808]*808561, 104 S.Ct. 2576, 81 L.Ed.2d 483 (1984), shows that the no minority layoff provision violates Title VII. In Stotts, the Supreme Court held that Title VII, and in particular sections 703(h) and 706(g), 42 U.S.C. §§ 2000e-2(h) & 2000e-5(g), barred a district court from modifying a consent decree over one party’s objection and ordering that layoffs be made so as to retain black hires who had been the beneficiaries of that prior remedial consent decree. The prior decree did not itself limit or modify preexisting bona fide seniority rights. See Deveraux v. Geary, 765 F.2d 268, 272 (1st Cir.1985); Vanguards of Cleveland v. City of Cleveland, 753 F.2d 479, 486-87 (6th Cir.1985); Kromnick v. School District of Philadelphia, 739 F.2d at 911; Grann v. City of Madison, 738 F.2d 786, 795 n. 5 (7th Cir.), cert. denied, — U.S.-, 105 S.Ct. 296, 83 L.Ed.2d 231 (1984); see also 593 F.Supp. at 1230.
Stotts is distinguishable on several grounds. First, section 703(h), on which the Court relied and which protects bona fide seniority systems that are not the result of an intent to discriminate, is not applicable here. The union and the School Corporation “incorporated the [no minority layoff provision] ... in their collective bargaining contract, thereby agreeing that certain prerequisites of seniority are to be qualified by that policy.” Kromnick v. School District of Philadelphia, 739 F.2d at 911. Unlike Stotts, there is no override of a bona fide seniority plan. Deveraux v. Geary, 765 F.2d at 273; EEOC v. Local 638, 753 F.2d 1172, 1186 (2d Cir.1985); Wygant v. Jackson Board of Education, 746 F.2d at 1157-59; Kromnick v. School District of Philadelphia, 739 F.2d at 911. Second, Stotts concerned a court-imposed affirmative action plan. Indeed, the no minority layoff plan there was imposed over the objections of the city. The Court explicitly refused to decide whether the city would have been unable to voluntarily adopt such a provision. Stotts, 467 U.S. at -, 104 S.Ct. at 2590; Turner v. Orr, 759 F.2d 817, 824-25 (11th Cir.1985); Vanguards of Cleveland v. City of Cleveland, 753 F.2d 479, 486 (6th Cir.1985); Wygant v. Jackson Board of Education, 746 F.2d at 1158. Third, Stotts did not even purport to, much less actually, overrule Weber. Deveraux v. Geary, 765 F.2d at 274; Vanguards of Cleveland v. City of Cleveland, 753 F.2d at 487-88 & n. 7; Wygant v. Jackson Board of Education, 746 F.2d at 1158. All the circuits that have considered the issue have concluded that Weber remains good law. Deveraux v. Geary, 765 F.2d at 274-75 (First Circuit decision collecting cases from Second, Third, Sixth, Seventh and Ninth Circuits); see also Turner v. Orr, 759 F.2d at 825 (Eleventh Circuit). Finally, we note that in essence Stotts was a case about a district court’s power to amend a consent decree over the objections of one of the parties. Stotts, — U.S. at-, 105 S.Ct. at 2594-95 (Stevens, J. concurring in the judgment); see Deveraux v. Geary, 765 F.2d at 272-73; Grann v. City of Madison, 738 F.2d 795 n. 5. Therefore, we agree with the district court that Stotts does not decide this case. 593 F.Supp. at 1230-31 & n. 4. Indeed, the plaintiffs finally concede as much. Pl. Br. at 17.17
We conclude that the no minority layoff provision of the 1980-83 Agreement does not violate Title VII.
IV.
Because the no minority layoff provision does not violate Title VII, we must consider the plaintiffs’ claim that it violates the [809]*809Equal Protection Clause. The Supreme Court has considered the merits of constitutional challenges to affirmative action plans in Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), and Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980). In neither case did any opinion command the assent of a majority of the Court. Thus the Court’s opinions do not provide the kind of guidance in the constitutional area that its decision in Weber does in analyzing Title VII challenges. Indeed, this court has recently stated:
After reviewing the eleven separate opinions filed in these two plurality decisions, this court agrees with the Sixth Circuit that “the only clear consensus to be garnered from these various statements is that in any affirmative action program (1) some governmental interest must be served, and (2) the program must somehow be directed toward the achievement of that objective.”
Janowiak, 750 F.2d at 563 (quoting Bratton v. City of Detroit, 704 F.2d 878, 885 (6th Cir.), modified in other respects, 712 F.2d 222 (6th Cir.1983), cert. denied, 464 U.S. 1040, 104 S.Ct. 703, 79 L.Ed.2d 168 (1984); see Valentine v. Smith, 654 F.2d 503, 509 nn. 11 & 12 (8th Cir.) (detailing the various positions of the Justices on necessary finding of past discrimination and appropriate standard of review), cert. denied, 454 U.S. 1124, 102 S.Ct. 972, 71 L.Ed.2d 111 (1981); United States v. City of Miami, 614 F.2d 1322, 1337 (5th Cir.1980) (“In over one hundred and fifty pages of United States Reports [that make up the Bakke opinions], the Justices have told us mainly that they have agreed to disagree.”), rehearing en banc, 664 F.2d 435 (5th Cir.1981). But see infra at 811— 12 & n. 19.
We first examine whether the no minority layoff clause serves a governmental interest. There is some uncertainty as to whether the governmental interest in remedying the effects of past societal discrimination is a compelling interest. See Valentine v. Smith, 654 F.2d at 508 n. 5 (identifying positions of Justices in Fulli-love and Bakke opinions). There is not, however, any doubt that this interest is substantial and important enough to support affirmative action plans. Fullilove, 448 U.S. at 453, 100 S.Ct. at 2762 (Burger, C.J., opinion, joined by Powell and White, JJ.); id. at 519-20, 100 S.Ct. at 2795-96 (Marshall, J., concurring in the judgment, joined by Brennan and Blackmun, JJ.,); Bakke, 438 U.S. at 307, 98 S.Ct. at 2757 (Powell, J. opinion); id. at 362, 98 S.Ct. at 2784 (Brennan, Marshall, Blackmun and White, JJ. opinion); Janowiak, 750 F.2d at 563. In order to show that the affirmative action plan serves the substantial and important interest of remedying the effects of discrimination, there must be a finding of past discrimination. Janowiak, 750 F.2d at 563-64; Valentine v. Smith, 654 F.2d at 508. Once again, the issue before us is whether the findings of past discrimination are sufficient.
In Janowiak, we held that the “failure to put forward any evidence other than evidence of statistical disparity and [defendants’] own admissions that the hiring practices appeared reasonable and non-discriminatory,” 750 F.2d at 564, was insufficient to constitute a finding of discrimination to support summary judgment for defendants as a matter of law on a constitutional challenge to their affirmative action plan. But the evidence here was not a mere present statistical disparity coupled with a finding that the hiring procedures were reasonable and non-discriminatory. See supra part III A. And, as previously noted, the district court found for defendants not on summary judgment but after an evidentiary hearing and a trial. We believe the findings were fully adequate.
Our conclusion that the findings here are sufficient to enable the no minority layoff provision to withstand an Equal Protection challenge is supported by Kromnick v. School District of Philadelphia, 739 F.2d 894 (3d Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 782, 83 [810]*810L.Ed.2d 777 (1985), and Valentine v. Smith, 654 F.2d 503 (8th Cir.), cert. denied, 454 U.S. 1124, 102 S.Ct. 972, 71 L.Ed.2d 111 (1981).
Valentine is on all fours with this case. The plaintiff, Bonnie Valentine, alleged that the Arkansas State University had, in violation of the Equal Protection Clause of the Fourteenth Amendment, refused to hire her because she was white.18 The Eighth Circuit acknowledged that Valentine had been rejected because of her race, but affirmed a judgment for the university because ASU hired the black applicant pursuant to its affirmative action plan. Valentine, 654 F.2d at 507-11. The court required ASU to predicate its affirmative action plan on a finding of past discrimination. 654 F.2d at 508. (We relied on Valentine for this requirement in Janowiak, 750 F.2d at 564.) The Office of Civil Rights of HEW had conducted a compliance review of ASU under Title VI in 1968. In January 1969 HEW informed the governor of Arkansas that the state’s universitites, including ASU, were not in compliance with Title VI. Voluntary compliance was not achieved, and in February 1973 the District Court for the District of Columbia ordered HEW to commence enforcement proceedings against ASU so as to bring the university into compliance with Title VI. Adams v. Richardson, 356 F.Supp. 92 (D.D.C.), aff'd as modified, 480 F.2d 1159 (D.C.Cir.1973) (en banc) (per curiam). ASU finally submitted a plan late in 1975 in response to the findings and the action taken by the OCR. 654 F.2d at 505-06, 508-09. The Eighth Circuit held that these findings were adequate:
There is no consensus on what findings of past discrimination justify remedial affirmative action. Nevertheless, the issue of whether the findings of past discrimination made by the District of Columbia District Court and HEW were adequate to justify a race-conscious remedy is not even close. Findings of previous statutory violations of title VI by a district court and OCR justify the use of some type of race-conscious remedy by a state to serve its constitutionally permissible objective of remedying past discrimination.
Valentine, 654 F.2d at 509 (footnote omitted).
Kromnick v. School District of Philadelphia arose from a Title VI (and hence constitutional-standard-invoking) challenge to a policy that sought to maintain a faculty ratio at the relevant schools of between 75% and 125% of the system-wide proportion of black and white teachers. From 1978 to 1982 the Office for Civil Rights of HEW required the school district to maintain this policy in order to be eligible for federal funds under an Emergency School Aid Act (Pub.L. No. 89-10, Title VI, 79 Stat. 55 (1965), Pub.L. No. 95-561, Title VI, 92 Stat. 2252 (1978), codified at 20 U.S.C. § 3191-3207, repealed by Pub.L. No. 97-35, § 587(a), 95 Stat. 480 (1981) effective Oct. 1, 1982). In 1982 the OCR for the Department of Education, which had assumed compliance responsibility, found the district in compliance with its regulations and no longer required the proportionality policy. The school district continued the policy voluntarily. 739 F.2d at 897-900.
The district court held that there was inadequate evidence that the 75%-125% policy continued to serve a remedial purpose. The Third Circuit reversed:
The district court apparently believed that once the School District was relieved by the OCR in 1982 of the obligation to maintain the 75%-125% policy, its action in continuing that policy ceased to be remedial. The district court ignored the 15 year history of state proceedings [811]*811against the School District, which are still pending in state court, directed to effecting integration of the Philadelphia public school system. The long history of Philadelphia public schools as “racially identifiable” as either “white schools” or “black schools” cannot be gainsaid. As early as 1969 the School District was operating under a consent decree entered into with the Pennsylvania Human Relations Commission requiring it to remove the racial imbalance among teachers in its schools.
In the context of repeated court and administrative orders to eliminate the racial identifiability of schools, the School District’s plan to further this end by integrating faculty must be considered remedial as a vital part of the ongoing effort to achieve a unitary school system.
Kromnick, 739 F.2d at 904-05.
We believe the findings by the OCR of HEW, by the district court in the District of Columbia in Brown v. Weinberger and the Attorney General’s certification underlying the consent order in United States v. South Bend Community School Corporation to be sufficient to remedy any inadequacies there might be in the findings made by the Board of Trustees in its series of meetings in 1978 leading up to adoption of Resolution 1020. Thus the no minority layoff provision is adequately supported. Indeed, we agree with the Eighth Circuit that on these facts the question “is not even close.” To require more would be to burden the pursuit of racial equity beyond all reason.
The next factor to be considered in the constitutional challenge is whether the no minority layoff provision is “somehow directed” toward the achievement of the School Corporation’s interest in remedying past discrimination. In the period since the Supreme Court’s decisions in Bakke and Fullilove a number of circuits have developed principles, based on the underlying concerns of the various Justices’ opinions, for determining whether the challenged voluntary affirmative action plan is sufficiently related to the governmental objective of remedying past discrimination. See, e.g., Kromnick v. School District of Philadelphia, 739 F.2d at 903-04; South Florida Chapter v. Metropolitan Dade County, 723 F.2d 846, 851-52 (11th Cir.), cert. denied, — U.S. -, 105 S.Ct. 220, 83 L.Ed.2d 150 (1984); Bratton v. City of Detroit, 704 F.2d 878, 885-87 (6th Cir.), modified in other respects, 712 F.2d 222 (6th Cir.1983), cert. denied, 464 U.S. 1040, 104 S.Ct. 703, 79 L.Ed.2d 168 (1984); Valentine v. Smith, 654 F.2d at 510; see also Paradise v. Prescott, 767 F.2d 1514, 1530-32 (11th Cir.1985); Wygant v. Jackson Board of Education, 746 F.2d 1152, 1157 (6th Cir.1984), cert. granted, — U.S.-, 105 S.Ct. 2015, 85 L.Ed.2d 298 (1985); United States v. City of Alexandria, 614 F.2d 1358, 1366 (5th Cir.1980).
We agree with the recent statement of the Eleventh Circuit that “the differences between the various approaches are more of phraseology than of substance.” Paradise v. Prescott, 767 F.2d 1514, 1532 (11th Cir.1985).19 In any event, we need not [812]*812choose among them, because a review of the evidence convinces us that the no minority layoff provision was reasonable and not merely “somehow directed” but essential and crucial to the achievement of the affirmative action policies of Resolution 1020, and so would survive scrutiny under any of these standards.
First, the provision did not stigmatize any of the white teachers who were laid off. The layoff was not related to merit but was determined by the provision and other aspects of seniority. Thus the teachers who were laid off were not stamped as inferior. Bakke, 438 U.S. at 371, 98 S.Ct. at 2789 (Brennan, White, Marshall and Blackmun, JJ. opinion); Fullilove, 448 U.S. at 484, 100 S.Ct. at 2777 (Burger, C.J. opinion); Wygant v. Jackson Board of Education, 546 F.Supp. 1195, 1202 (E.D.Mich.1982), aff'd, 746 F.2d 1152 (6th Cir.1984), cert. granted, — U.S.-, 105 S.Ct. 2015, 85 L.Ed. 2d 298 (1985). Indeed, the teachers laid off are no more stigmatized than any employees laid off for lack of seniority under any other contractual seniority system.20
Second, the provision does not require the retention of unqualified teachers. Bratton v. City of Detroit, 704 F.2d at 891; Valentine v. Smith, 654 F.2d at 511; United States v. City of Miami, 614 F.2d 1322, 1340 (5th Cir.1980); Wygant v. Jackson Board of Education, 546 F.Supp. at 1202.
Third, the provision did not require the layoff of all white teachers. The forty-eight teachers who would not have been laid off but for the provision amounted to 3.77% of the faculty of 1274. Thus, the provision did not invidiously trammel the interests of the white teachers or act as an absolute bar to their employment. Fulli-[813]*813love, 448 U.S. at 484, 100 S.Ct. at 2777; Valentine v. Smith, 654 F.2d at 511; United States v. City of Miami, 614 F.2d at 1340; Wygant v. Jackson Board of Education, 546 F.Supp. at 1202; see Weber, 443 U.S. at 208-09, 99 S.Ct. at 2729-30. We agree with the district court in Wygant that it is difficult to conceive how (absent a claimed breach of the duty of fair representation) a plan which was voluntarily adopted by the membership of the NEA-South Bend, a majority of whom were white, could invidiously trammel their interests. 546 F.Supp. at 1202. In fact, this factor is one of the most decisive in validating the challenged plan.
Fourth, the provision was a temporary measure not designed to maintain a particular racial balance in the teaching staff. See supra part III B. Bratton v. City of Detroit, 704 F.2d at 892; Valentine v. Smith, 654 F.2d at 511; United States v. City of Miami, 614 F.2d at 1340.
The teachers’ most serious claim is that a less burdensome layoff procedure would have been possible, and so the provision is not reasonable. It is true that considered in the abstract it would have been possible to lay off by seniority excluding the provision and rehire black teachers first, or to engage in proportional layoffs (as is now the case under the revised layoff provision). But the provision was designed to further the goals of Resolution 1020 and prevent the loss of the gains that had been made.
If layoffs had been effected without the provision, more than one-quarter (27.3%) of the school district’s black teachers would have been laid off, and almost one-third (32.9%) of the laid off teachers would have been black. Def. Ex. F-1. The reason for this is the usual and distressing one that a disproportionate percentage of black teachers had been only recently hired. Without the provision the percentage of black teachers would have dropped from 13.0% to 10.8%, almost back to what it had been when Resolution 1020 was adopted. At the same time the percentage of black students had risen from 22.1% to 25.8%. Def. Ex. E-l. The plaintiffs apparently concede that a straight percentage layoff provision would have been reasonable. See PI. Br. at 14. Layoffs pursuant to such a provision would have kept the percentage of black teachers at 13.0%, while the actual layoffs pursuant to the no minority layoff provision increased the percentage to 13.8%. We do not believe this minor difference makes the provision constitutionally unreasonable. This conclusion rests on the fact that Resolution 1020 required that the School Corporation strive to exceed each year the minority employment figures of the previous year. Cf. Vanguards of Cleveland v. City of Cleveland, 753 F.2d 479, 485 (6th Cir.1985) (rejecting as “entirely too speculative” the argument that a district court may not approve a consent decree adopting an affirmative action plan “simply because other measures may, over the course of future years, achieve the same result” (emphasis in original)); Kromnick v. School District of Philadelphia, 739 F.2d at 907 (“No Supreme Court opinion has required a competent agency to undergo a convassing of alternatives as a constitutional prerequisite for a legitimate remedial action. The various opinions in Fullilove either expressly reject any requirement that the remedy chosen be the least restrictive, or adopt a far less rigorous standard.” (citations omitted)).
For all of these reasons we believe that the provision sufficiently furthered the School Corporation’s legitimate objective.21 [814]*814Because it was also supported by adequate findings of discrimination, it was valid and survives constitutional challenge.
V.
We now turn to the plaintiffs’ state law challenges to the no minority layoff provision. Having found no merit to the teachers’ federal claims, the district court declined to exercise pendent jurisdiction over the state claims.22 The district court correctly noted that the decision whether to entertain the state law claims was discretionary, citing United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966), even after a trial on the merits in which the federal claim has not been proven, citing Delcambre v. Delcambre, 635 F.2d 407 (5th Cir.1981) (per curiam). The court then reasoned as follows:
The crux of the state claims in this case is the impact of Article XXIII, § 9 on the plaintiffs’ seniority rights under the Indiana Teacher Tenure Act. The question of whether an affirmative action plan violates the Teacher Tenure Act has not been addressed by Indiana courts. Therefore, where, as here, the proper resolution of the state law question is unclear, a federal court may properly decline to address the pendent issues. Any judgment by this court on this question would be purely advisory and of no precedential value to the state court.
593 F.Supp. at 1233 (citation omitted). On appeal plaintiffs merely restate their argument concerning the merits of their state claims. The correct standard of review is abuse of discretion, however, not error on the merits. We do not believe the district court abused its discretion in declining to exercise pendent jurisdiction over the state claims and dismissing them without prejudice. Gibbs, 383 U.S. at 726, 86 S.Ct. at 1139; Delcambre v. Delcambre, 635 F.2d at 408.
An affirmative action plan is a serious measure. It must not be entered into without careful consideration of the need for and the burdens of the plan. But the plan involved here, Article XXIII, Section 9 of the 1980-83 collective bargaining agreement between the South Bend School Corporation and the NEA-South Bend, was carefully considered and reasonable under the circumstances. We have concluded that it did not violate either Title VII or the Equal Protection Clause of the Fourteenth Amendment. We have also concluded that the district court did not abuse its discretion in dismissing the pendent state claims. For the reasons given above, the order of the district court is Affirmed.
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