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‘Openly discriminates against white teachers based only on the color of their skin, and not their seniority or merit,’ attorney argues

A Minneapolis teachers union contract states white teachers will be laid off or reassigned before educators of color if a reduction in staff is initiated, Alpha News reports.

The Star Tribune reports the “seniority-disrupting language” in the policy is rare among school districts across the nation, and at least one Constitutional law attorney has called the contract’s proviso a violation of the Constitution and Title VII of the Civil Rights Act.

But the moved is billed as a way to retain teachers of color by those who support it.

“It can be a national model, and schools in other states are looking to emulate what we did,” Edward Barlow, a member of the Minneapolis Federation of Teachers executive board, told the Star Tribune. “Even though it doesn’t do everything that we wanted it to do, it’s still a huge move forward for the retention of teachers of color.”

The policy is reportedly the result of a new collective bargaining agreement reached between the Minneapolis Federation of Teachers and Minneapolis Public Schools to end a strike during the spring.

Alpha News, which obtained a copy of the agreement, reported Aug 14:

One of the proposals dealt with “educators of color protections.” The agreement states that if a non-white teacher is subject to excess, MPS must excess a white teacher with the “next least” seniority.

“Starting with the Spring 2023 Budget Tie-Out Cycle, if excessing 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,” the agreement reads.

According to the United Federation of Teachers, “excessing” means “reducing staff in a particular school when there is a reduction in the number of available positions in a title or license area in that school.”

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 policy, however, is a violation of the Constitution and Title VII of the Civil Rights Act, according to Washington D.C.-based attorney and education watchdog Hans Bader.

Writing on Liberty Unyielding, Bader argued:

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 …

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.

James Dickey, senior trial counsel at the Upper Midwest Law Center, told Alpha News he also believes the policy is unconstitutional.

“The [collective bargaining agreement] … openly discriminates against white teachers based only on the color of their skin, and not their seniority or merit,” Dickey said. “Minneapolis teachers and taxpayers who oppose government-sponsored racism like this should stand up against it.”

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IMAGE: Merrimack College / Flickr

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