DOCUMENT RESUME

ED 226 457 EA 015 391

TITLE Teacher Layoffs, Seniority and Affirmative Action.INSTITUTION Commission on Civil Rights, Washington, D.C.PUB DATE May 82NOTE 45p.; Prepared by the Massachusetts Advisory

Committee to the U.S. Commission on Civil Rights. Fora related document, see EA 015 523. Papers presentedduring a consultation session sponsored by theMassachusetts Advisory Committee to the U.S.Commission on Civil Rights (Boston, MA, August1981).

AVAILABLE FROM Publications, U.S. Commission on Civil Rights, NewEngland Regional Office, 55 Summer Street, 8th Floor,Boston, MA 02110 (free).

PUB TYPE Speeches/Conference Papers (150) -- Viewpoints (120)-- Collected Works General (020)

EDRS PRICE MF01/PCO2 Plus Postage.DESCRIPTORS *Affirmative Action; Civil Rights; Employment

Practices; Government Role; Job Layoff; LegalResponsibility; *Reduction in Force; Retraining;School Desegregation; Seniority; *Teacher Dismissal;*Teacher Integration

IDENTIFIERS Boston'Public Schools MA; Cambridge School CommitteeMA; Massachusetts; Proposition 2 and One Half(Massachusetts 1980)

ABSTRACTAs a result of declining enrollment and newly

instituted limitations on property taxes resulting from passage ofProposition 2 1/2, school districts in Massachusetts have been forcedto reduce the size of their teaching staffs. The MassachusettsAdvisory Committee to the U.S. Commission on Civil Rights sought todetermine what steps were being taken to maintain racially diversepublic school faculties in the face of teacher layoffs. The 10 papersmaking up thi's report were presented at a consultation session hostedby the Advisory Committee for the purpose of encouragingcommunication among organizations and individuals found to be takingaction to lessen the impact of teacher reductions. The introductionto the report explains the background situation and notes commonthemes appearing in several of the papers. The papers themselvesdiscuss legal, financial, and political issues affecting affirmativeaction policies and layoffs, the impact of layoffs on both schooldesegregation and minority representation on faculties, the roles ofgovernment agencies in preventing discrimination, alternatives to thelayoff of minority teachers, and the provision of assistance to laidoff staff members seeking new jobs. Conditions and responses to thoseconditions in the Massachusetts cities of Boston, Cambridge,Worcester, and Framingham are cited. '(Author/PGD)

************************************************************************ Reproductions supplied by EDRS are the best that can be made *

* from the original document. *

***********************************************************************

N-u`

A I A

U.IL DEP/LAMENT OF EDUCATIONNATIONAL INSTITU1 OF EDUCATION

EDUCATIONAL RESOURCES INFORMATION'XCENTER (ERIC)

This document has been reproduced as\ received from the person or organization

',. originating it 0-1 l Minor uhanges have been made to improve

reproduction quality

"PERMISSION TO REPRODUCE THISMATE AL HAS BEEN GRANTED BY

Z61.f eVS'i

Points of view or opinions stated in this docu TO THE EDUCATIONAL RESOURCESmans do not necessarily represent official NIE INFORMATION CENTER (ERIC)."pomon or policy

THE UNITED STATES COMMISSION ON CIVIL RIGHTSThe U.S. Commission on Civil Rights, created by the Civil Rights Act of 1957, is

an independent, bipUrtitan agency of the executive branch of the FederalGovernment. By the terms of the act, as amended, the Commission is charged with

the following dutie,s pertaining to denials of the equal protection of the laws based

on race, color, sex, age, handicap, religion, or national origin, or in the

administration of justice: investigation of individual discriminatpry denials of the

right to vote; study of legal developments with respect to denials of the equal

protectiOn of the law; appraisal of the laws and policies of the United States with

respect to denials of equal protection of the law; maintenance of a national

clearinghouse for information respecting denials of equal protection of the law;

investigation of patterns or practices of fraud or discrimination in the conduc-u E ft

" Federal elections. The Commission is also required to submit reports to thePresident and the Congress at such times as the Commission, the Congress, or the

Presklent shall deem desirable.

THE STATE ADVISORY COMMITTEES,'An Advisory Committee to theUnited States Commission on Civil Rights has been

, established in each of the 50 States and the Districtt of Columbia pursuant to section

105 (c) of the Civil Rights Act of 1957 as aMended. The Advisory Committees are

made up of responsible persons who serve without compensation. Their functions

under their mandate from the Commission are to: advise the, Commission of all

relevant information concerning their respective States on matters within the

jurisdiction of the Commission; advise the Commission on matters of mutual

concern in the preparation of reports of the Commission to the President and the

Congress; receive reports, suggestions, and recommendations from individuals,

public and private organizations, and public officials upon matters pertinent to

inquiries conducted by the State Advisory Committee; initiate and forward advice

and recommendations to the Commission upon matters which the AdvisoryCommittee has studied; and attend, as observers, any open hearing or conference

which the Commission may hold within the State.

Teacher Layoffs, Seniorityand Affirmative ActionA report based on a consultation sponsored by theMassachusetts Advisory Committee to the U.S.Commission on Civil Rights, August 20, 1981.

Attribution:

Where appropriate material presented in this reportshould be ,attributed to individual panelists whoparticipated in the consultation. All other materialrepresents the interpretations and conclusions of theMassachusetts Advisory Committee to the U.S.Commission on Civil Rights and, as such, is notattributable to the Commission. This report has beenprepared by the. State Advisory Committee and willbe considered by the Commission in formulating itsrecommendations to the President and Congress.

Letter of Transmittal

Massachusetts Advisory Committee tothe U.S. Conunission on Civil Rights

May 1982

MEMBERS OF THE COMMISSION s-Clarence M. Pendleton, Jr., ChairmanMary Louise Smith, Vice ChairmanMary F. BerryBlandina Cardenas RamirezJill S. RuckelshausMurray Saltzman

John Hope III, Acting Staff Director

Dear Commissioners:

oft>

The Massachusetts Advisory Committee submits this report containing theproceedings of its Consultation on the Impact on Affirmative Action of Layoffs in .

Public Education as part of its responsibility to inform the Commistion aboutimportant civil rights issues in Massachusetts.

For several years, school enrollments in Massachusetts have declined, and in

1981, as a result of the implementation of Proposition 21/2 (a new tax law which

placed a cap on local property antl excise taxes), municipal tax revenues also

decreased in most cities and towns. This combination of decreased enrollments and

reduced revenue caused many municipalities to lay off teachers in 1981. There is

every expectation that such reductions in staff I continue in the future.

The Advisory Committee, concerned that the iinpactdpf the, layoffs would fall

most heavily upon recently hired minority teac ;)--held a conaultagon to explore

the issue of the retention of minority faculty members in time of lijmffs. At theconsultation, educators, attorneys, school committee members and government

agency representatives presented their views for dealing with this increasinglyserious problem. ,

In its recent publication, Affirmative Action in the 1980s, Dismantling the Process of

Discrimination, the Commission observed that seniority rules are a form oforganizational discrimination "when applied to jobs historically heId by white

males, that make more recently hired minorities and females more subject tolayoffthe 'last hired, first fired' employeeand less eligible for advancement."

The papers contained in this report Present no simple solutions, but amohg the

points raised are: that students have a right to a non-segregated faculty; that

minority teacher employment extends desegregation; that consistency requiresaffirmative action in layoffs as well as in hiring; and that teacher organizations must

represent al/ teachers. \

fi

t,

The Advisory Committee is pleased to transmit this report of the consultationwhich took place on August 20, 1981 in Boston, and hopes that you fmd it useful asyou continue to address this critical problem.

Respectfully,

BRADFORD E. BROWN, Ph.D.Chatiperson

0

Massachusetts State Advisory Committee

4:- 6

MASSACHUSETTS STATE ADVISORY COMMITTEETO THE U.S. COMMISSION ON CIVIL RIGHTS

Bradford E. Brown, Chaiiperson Sandra Lynch,

East Falmouth Brookline

Tracy Amalfitano Patricia MorseSouth Boston Lincoln

Charles D. BakerBoston

Paul ParksBoston

Caroline J. ChangMattapan

Edward Dugger IIIBoston

Sixto EscobarCambridge

Eugenia FortesHyannis

Argelia HermenetSpringfield

Dorothy JonesCambridge

iv

Russell PetersMashpee

Daniel A. PhillipsWellesley

Glendora M. PutnamBoston

Michael J. SchippaniLawrence

Maria J. Malaret-Van HoyBoston

7

Acknowledgments

The Massachusetts ir Advisory Committee wishes to thank the staff of theCommission's New England Regional Office, Boston, Massachusetts for its help inthe preparation of this document.The consultation and report were the principal staff assignment of Mary LeeWalsh, and were accomplished with assistance from Larry Riedman, and supportfrom Marilyn Kittle and Sylvia Cooper. The project was undertaken under theoverall supervision of Jacob Schlitt, Director, New England Regional Office.

Contents

1. Introduction 1

2. Affirmative Action and Reduction-in-force, by Meyer Weinberg 43. Layoffs in the Public School System: Proposition 21/2, by Margaret Dale4. Layoffs. and AffirMative Action: The Legal Issues and Reasonable Ap-,

proaches, by J. Harold Flannery 115. Layoffs in the Boston Public Schools: A Political Issue, by Larry J. Johnson ... 166. Affirmative Action in the Public Schools During Times of Psychological and

Fiscal Recession, by George S. Smith 197. Minority Educators and Proposition 21/2, by Shirley F.a Carter 228. The Cambridge School Committee and the Problem of Layoffs, by Henrietta

Att les 269. Our Public Wiao ls Need Minority Teachers, by Gwendolyn M. Blackburn 2910. Possibilities for Retaining Minority Staff in Positions Not Covered by

Collective Bargaining, by James H. Case 3111. Preparing Teachers for Career Change, by Ilene Wolfman and Cheryl

Kramer 33

9 vii

Introduction

6%.

The last few years have seen e reversal of therapid growth in public education that had prevailedin Massachusetts and nationally for more than 25years. From the end of World War II through theearly 1970s, school enrollMents increased, hundredsof new schools were built, new educational pro-grams were implemented and thousands of teacherswere hired in the Commonwealth.

During this period, legislation prohibiting employ-ment discrimination was enacted, and affirmativeaction efforts were undertaken to eliminate theeffects of past gliscrimination. By 1980, blacks andother minorities were beginning to be employed insignificant numbers by many of Massachusetts'larger school systems. However, by the middle1970s, employment opportunities were diminishingas a result of declining school enrollments andincreasing costs. The threat of teacher layoffsemerged.

Decreasing enrollment apparently will continue.One study estimates that the number of public highschool graduates will decline from the 1977 peak of79,400 to 44,610 in 1994.2 Accordinito Massachu-setts Department of Education statistics, enrollmentsin public schools statewide decreased 17 percentbetween 1974 and 1981.2 In the Boston Public

Western Interstate Commission for Higher Education, NationalInstitute of Independent Colleges and Universities and TeachersInsurance and Annuity Association, High School Graduates:Projection for the Fifty States (1980), p. 261.

Commonwealth of Massachusetts, Depirtment of Education,Declining Enrollments in the Massachusetts Public Schools: What ItMeans ad What to Do (1978), 4; And COmmonwealth ofMassachusetts, Department of Education, Bureau of Data Collec-tion, Individual School Report, October 1, 1980, Table 3, p. 9.

Schools, student enrollments have decreased frontover 96,000 for the 1970-71 school year' to under63,000 for 1980.3 Table 1 sets fohh student enroll-ments in most of the Commonwealth's larger citiesand towns for the three-year period from 1978-1980.With two exceptions, enrollments declined everyyear in every municipality.

Not billy has student enrollment decieased overthe last few years, but also the number of schools.Between 1974 and 1981, there was a net lo4 of 326public schools in the State (2,502 in 1973-74 to 2,176in 1980-81).4 In 1980, 92 schools closed while only 4new ones opened. The number of schools in Bostondecreased from 178 in 1970-71 to 126 in 1981-82.5

With decreases in enrollment and with schoolclosings, it becomes necessary at some point forschool systems to reduce their staffs. In Massachu-setts, layoffs were accelerated because of the enact-ment of Proposition 21/2 in November 1980, requir-ing municipalitiqe to reduce real property and excisetaxes 15 percent annually until they reach 21/2percent of the fair market value of the propertybeing taxed. The resulting decreases in tax revenueshave caused municipalities to cut back on servicesand to reduce their work forces, including teachers.

Boston Municipal Research Bureau, The State of the BostonPublic Schools, A Pessimistic Diagnosis by the Numbers, Part 2,"Pupil Enrollments," no. 81-11, Sept. 17, 1981.4 Commonwealth of Massachusetts, Department of Education,Bureau of Data Collection, tables submitted in response to requestfrom New England Regional Office, U.S. Cothmission on CivilRights.' Edward Winter, Secretary to the Boston School Committee,telephone interview, November 5, 1981.

1 0

Table 'IPublic School Student Enrollments in Massachusetts

1978

Amherst 1,663Barnstable 5,529Boston 72,107Brockton 19,967Brookline 6,334Cambridge 9,214Chelsea 3,770Chicopee 9,142Fall l3iver 14,140Falmouth 5,071Fitchburg 5,433Framingham 12,148Haverhill 8,512Holyoke 8,045Lawrence 8,288Lowell 13,535Lynn 14,434Medford 9,275New Bedford 15,509Newton 13,819Pittsfield 10,629Quincy 13,552 fSomerville 10,513Springfield 26,655Waltham 9,096Worcester 25,139

1979 1980

1,576 1,512 4,

5,433 5,39669,973 67,98119,128 18,6686,246 6,1079,220 8,7673,591 3,6418,739 8,073

13,825 13,4594,865 4,7495,205 5,020

11,282 10,5577,998 7,6517,809 7,6488,201 8,058

12,828 12,70813,914 13,447

8,587 7,89515,160 14,92413,050 12,42610,042 9,49812,904 12,197

9,803 '9,08824,874 24,613

8,474 7,95423,854 23,109

Source: Commonwealth of Massachusetts, Department of Education! Bureau of Data Collection, Individual School Report, October1, 1978; October 1, 1979; Octobas1, 1980, Table 3.

2

11

Although there are no statewide figures avail&ble,"Itt is expected that teacher layoffs for the 1981-82 school year and beyond will have an adverseeffect upon minorities. Traditionally, layoff deci-sions are made on the basis of seniority or length ofservice. Because most black, Hispanic and otherminority teachers were "the last .hired," it has beenfedred that they will be "the first fired."

The Massachusetts Commission Against Discrimi-nation estimated that three-quarters of all municipal-ly employed minorities will be laid off if municipal-ities are forced to reduce their work forces by one-fouirth and use seniority as the sole criterion. Gainsin minority employment made in the last few yearscould be wiped out by these layoffs.

The Massachusetts Advisory Committee to theUSCCR, which has closely followed the progress ofequal education in the Commonwealth, was con-cerned about the impact of a reduced minorityfaculty on the education of all children, minority andnon-minority. It fears.that failure to retain a raciallyand ethnically diverse faculty may have a detrimen-tal effect upon the educatiOn of the students.

The Advisory Committee sought to fmd out whatsteps were being taken to Maintain raci diversepublic school faculties in the 'face of tea ayoffs.It learned that some organizations and individualswere attempting to minimize layoffs by encouragingjob-sharing, a shorter work week and early retire-ment plans. Others stresied the Importance ofconsidering factors other than seniority in layoffs.Still others were focusing their efforts on retrainingteachers for employment in other fields.

To provide a forum for these organizations andindividuals to share their ideas and experiences, theAdvisory Committee held a consultation on August20, 1981, at the John F. Kennedy Federal Buildingin Boston. The participants came from the fields oflaw, education, and government, and the papersthey submitted for that consultation are reprinted inthis report.

While no attempt to summarize the papers will bemade in this brief introduction, some of the themes

The Massachusetts Department of Education is compilingstatistics on numbers of teachers who left public education in 1981and their reasons for leaving, e.g., laid off, retired, resigned, etc.

AO'

that recurred in the presentations will be mentioned.One theme is the importance of plannint ahead foraffirmative action before reductions-in-force occur.Explicit affirmative action language should be inplace in layoff and recall provisions .of collectivebargaining agreements. Likewise, the speakersstressed the need for the implementation of compre-hensive affirmative action programs. If tools such as,these are part of the administrative structure prior tothe threat of layoffs, they can be utilized to ensurethe continuation of minority representation on facul-.ties. If they do not exist, the talk is much moredifficult.

However, simply having strong affirmative actionlanguage does not guarantee that it will be enforced.Participants stressed the need for minority teachersto organize in order to ensure that teacher associa-tions, school committees and school administratorstake steps to retain minority faculty representation,and to comply with requirements.

The legal status of affirmative action in times oflayoffs is not altogether clear, and some speakerscalled for government civil rights agencies to en-force existing Ai-discrimination laws. Others ad-vanced ideas to save jobs, such as job-sharing,across-the-board pay reductions, and early retire-nients.

Consultation participants agreed that retention ofminority teachers is an educational as well as apemployment issue. They asserted that the presenceof minority teachers provides essential role modelsfor successful development of minority students andalso is valuable to majority students.

It is clear that the conflicts among strict senioritysystems, quality education and affirmative actionconsiderations are likely to remain a thorny issue forsome time to come. It is hoped that the ideas andinformation presented here will be useful to thosewho must deal with the problem of maintainingminority faculty representation in the face of reduc-tions-in-force in public education:

(However, no information on the race or ethnicity of the affectedteachers has been collected; nor are the data available at thisPrinting.)

12

3 '

2. Affirmative Action and Reduction-in-Fprce

Meyer Weinberg

Professor Weinberg has written extensively on schooldesegregation and equal educational opportunity. He is

:J.the dkector of the',Horace Mann Bond Center for:Equal Education ai the Uni4rsity of Massachusetts,Amhers4 which puVishes the:journalEqual Educationin Massachusettr 4 Chronicle. His paper discusses therelationship between affirmative action in the employ-ment of teachers and school desegr don.

In the 1954 and 1955 decisions of the U.S.Supreme Court in the case of Brown v. Board ofEducation, 347 U.S. 483 (1954) and 349 U.S. 294(1955), teachers are not mentioned. Neither plaintiffsnor defendants based their cases on the role ofteachers, although it was common knowledge thatteachers had been as segregated as students in theold order presumably struck down by the SupremeCourt.. Not until 1965 did the High Court firstconcede in Rogers v. Paul, 382 U.& 198 (1965), thatthe existence Of a segregated faCtilty might beconsidered in determining whether Brown was beingbreached. The tardiness of courts on this matter flewin the face of mass firings of black principals and, toa lesser extent, black teachers, during desegregationin the 1960s. Only at decade's end was there evolveda working principle embodied in the Singletondecision, Singleton v. Jackson Municipal SeparateSchool District, 419 F.2d 1211 (5th Cir. 1970), whichenjoined desegregating districts to maintain the ratioof black to white teachers. Singleton's aim was tostop the substitution of white for black teachers.

4

This rule has been adopted widely by courts in theSouth.

Thus, during 'the first decade-and-a-half of Brown,teachers moved from being ignored to being protect-ed in part. Many of the gains black teachersrecorded were due to self-organization. For exam-ple, fewer black teachers in ,large cities weredischarged than was the case with their rural peers.Urban teachers were better organized. All the cost;of judicial inattention were paid by black teachers asdischarges were seldom remedied by law during theearly years. The National Education Association(NE A) publicized the plight of the fired teachers.NEA also spent considerable amounts of money infighting cases in court, largely with success.

By the opening of the 1970s, the courts had cometo view teachers as integral parts of desegregation.Indeed, the Justice Department during the NixonAdministration, eager to avoid student desegrega-tion, fastened ou.teacher desegregation as a substi-tute. In 1969, the Department began a long chain ofletters to the Chicago School Board, demanding thefaculty be desegregated. The U.S. Department ofHealth, Education, and Welfare (HEW), in assessing

'school district applications for desegregation funds,frequently rejected the requests on the ground ofteacher segregation. Seldom, however, did HEWstipulate segregated enrollments as, an invalidatingcondition. Under the Carter Administration, littlechanged.

Another feature of the emerging situation was theCivil Rights Act of 1964. Since it addressed, in part,employment as an area protected from racial dis-

13

crimination, black teachers expected protection. Onthe basis of this law ai well as executive ordersrelating to fair employment, affirmative action be-came a familiar phrase. Unfortunately, adoption ofgoal statements far outdistanced accomplishments.

By the mid-1970s, then, the courts had begun tobuild a solid foundation of protection for blacks. Itshould be recalled that white workers were notsubject to racial discrimination and thus did not needsuch protection. The Federal Government's recordwas spotty and inconsistent, especially on the admin-istrative side.

In the midst of this mixed picture came thefmancial crisis of the public schools. While someveiwed it as an ineluctable expression of an absoluteshortage of funds, others attended, more realisticallyperhaps, io the political context of the budget-cutting. At times the reductions were highly uneven;more often they were directed at human and socialservices of which schooling was only one. In anyevent, a fateful consequence of the crisis was tocreate circumstances in which black and. whiteteachers became competitors for a shrinking numberof jobs. Thus, instead of uniting to resist and helpreverse a deadly serious attack on the public schools,teachers were detoured into the present impasse.

What are the central features of that imPase? Andhow may it be resolved? As the above sketchsuggests, minorit3s teacher employment is both amatter of equity and a way of extending &segrega-tion. At the same time, the principle of affirmativeaction requires fair employment, not exclusive em-plmentlay any single group. Where one group ofteachers has had the almost exclusive privilege ofemployment, affirmative action aims at ending thatprivilege. It would seem there is no way to accom-eplish this other than by positive measures to assurethe presence of minority teachers. The record oflocal school districts and of State enforcementagencies in the area of fair employment is sorelyinadequate.

To permit the wholesale dismissal of minorityteachers in the name of seniority is not onlyinequitable and a violation of affirmative action, it isalso a means of resegregating a school system. Thiswould seem to be the case regardless of whether ornot the school district is under a legal order todesegregate. Indeed, resegregation of teachers mightwell be regarded in a future court action as anindicator of de jure segregation in districts notpresently under order.

Quite possibly the most important statement onthe issues thus far is U.S. District Judge Noel P.Fox's ruling in Oliver v. Kalamazoo Board of Educa-tion, 498 F. Supp. 732 (W.D. Michigan 1980). Theschool board asked the court to suspend the opera-tion of the seniority-layoff clause in the unioncontract so that blacks would not be laid off indisproportionately large numbers. The union con-tended the plan was illegal. Minority teaWsargued that the layoffs by seniority would Attic;the proportion of black teachers far below the 20percent level accepted by the school board in 1973.(That year, Judge Fox had found the school districtguilty of deliberate segregation and ordered desegre-gation.) In faCt, by 1979 the school district employedonly 12.6 percent minority teachers. Layoffs wouldhave cut the figure to 9.8 percent.

The teachers union contended, among otherthings, that recalling black teachers of lesser seniori-ty discriminated against white teachers of greater.seniority. Quoting from the U.S. Supreme Court'sopinon in Franks v. Bowman Transportation Co., 424U.S. 777 (1976), Judge Fox reproduced its wordsthat there must be a "sharing of the burden of thepast discrimination." So long as the burden ofsharing was reasonable, it was permissible.

Yet, Judge Fox refused to grant the request ofplaintiffs that all laid off black teacher§% probation-ary and tenured, be recalled. He specifically object-ed to replacing senior white teachers by blackprobationers. The former he characterized as"teachers who have given years of dedicated effortto the Kalamazoo Public Schools, and testimonyindicated that each is sensitive to the needs ofminority students and is committed to working withthe school system to achieve the objectives ofdesegregation." It was in the educational interests ofstudents to be taught by a tenured rather than aprobationary teacher,

His order therefore called for the recall of allblack tenured teachers, to be followed by recall ofall other teachers on the basis of seniority "so long asat least 20 percent of all recalls in any one year arefilled by black employees." In addition, wheneverthe level of recalled blacks falls below 20 percent,blacks will be recalled out of seniority order untilthe level of 20 percent black is reached. Finally, inthe event that no black tenured teachers are avail-able, no more than 80 percent white teachers can berecalled, and enough blacks are to be newly-hired toreach the 20 percent level.

1 4

Judge Fox noted that under this plan only few'White experienced teachers would suffer; a small

number of black tenured teachers would replacethem at the outset. In any event, since seniority stillregulated the return of teachers during a large part

of the planned procedure, the displaced senior whiteteachers would "be returned hi their jobs very

quickly."The noteworthy features of this case are numer-

ous. For one thing, the judge's ruling is anchored inthe constitutional rights of students to have a non-segregated faculty and is related directly to adesegregation order. For another, the legal status of

the school board's affirmative action goals is givenmajor weight. In addition, the judge's flexibility is

exemplary, abjuring any tendency to ride roughshod

over the rights ofexperienced white teachers.kidge Fox handed down his ruling on September

30, 1980. What happened during the 1980-81 school

year?

As soon as the FQX order began to operate, maby

teachers filed grievances based on the court-modi-

fied board contract. So numerous did these become,

that they threatened the operation of the plan. Judge

Fox directed the school board and the union toselect an arbitrator from a panel supplied by theAmerican Arbitration Association. The arbitrator,

Judge Fox stipulated, could resolve the grievarices

but without affecting any part of the desegregation

order.On August 19, 1981, the arbitrator, Detroit lawyer

George Roumell, made the arbitration award. Fol-

lowing the judge's instructions, Roumell dealt with

the grievances as a class action rather than asindividual complaints and he permitted administra-

tive employees' to be "bumped down" to teaching

positions, against the protests of clasiroom teachers

who regarded the procedure as special privileges for

administrators.

1 5

3. Layoffs AnProposition 21/2

Margaret Dale

Pablic School System:

Ms. Dale is an' attorney with theY MassachusettsCommission Against Discrimination (MCAD) and hashad primary responsibility for the A:05 civil rightsreview program. She was asked to address the role ofMCAD in' coping with discrimination questions thatmay arise because of public sector layoffs caused byProposition PA

" The legal and policy questions surrounding theissues of retention and layoff in public ,employmentin Massachusetts present difficult challenges to thoseof us concerned with civil rights and affirmativeaction. As we all know too_well by now,' we arepresently 'faced with a situation where substantialnumbers of public employees across the Common-wealth have lost or will lose their jobs this year ornext year. As the Massachusetts CommissionAgainst' Discrimination (MCAD) first announced ina press conference at the beginning of 1981, it isexpected, that a disproportionate number of the laidoff workers will be minorities and non-traditionallyemployed women, two groups who have only inrecent years begun to be employed in public sectorpositions in any significant way.

Preliminary published reports and discussionswith municipal officials estimated 'that up to 25percent of the municipal workforce might be laid Offthis year, with significant cuts in police and fire,public works and other municipal departments aswell as school departments. Other considerations,however, including increased local aid and theindependent factor of declining school enrollments,have resulted in significant layoffs in most communi-ties being limited to school department employees.

Most school departments will lay off employeeson the basis of straight seniority. Straight seniorityworks on a "last hired, first fired: basis; employeeswho have been working in a department the shortesttime will be the first to be let go. Many of the layoffdeciskins for public school employees are beingbased on seniority provisions in colleCtive bargain-ing agreements. Additionally, other school depart-ments may be applying seniority, standards forpositions not covered by collective bargainingagreements in order to reduce the political pressuresinherent in laying off large numbers of publicworkers.

Most of the MCAD's data on the impact ofProposition 21/2 deal with non-school municipalemployment. Our civil rights review program workswith 170 cities and toWns which have signedprogram agreements with the Commission and arecurrently implementing affirmative action activities.Under this program, we have seen minority, non-School, municipal employment rise from slightlyover 2,000 in 1977 to almost 4,500 in 1980. UnfOrtu-nately, resources prevented us from developing asimilar program for school department employmentand we do not have the extensive data, nor is there _

as much affirmatiye action activity for schooldepartments as for the balance of municipal, employ-ment. The MCAD had hopedcin fact, to expand thecivil rights review program into the area of affirma-tive action in school employment. Proposition 21/2,however, which has impacted State as well as localemployment, has meant recent layoffs at the MCADand has made any expansion of the program unfeasi-ble.

However, despite lack of as accurate data as wewould like, it is apparent that the fmal numbers will

7

show that minorities har in recent years made gainsin school department employment, both as teachersand as administrators, and, that these gains will to alarge measure be wiped ont as the -result of layoffs.The public policy implications of this loss of minori-ty teachers and administrators, especially in light ofincreasing minority school enrollment, are enor-mous.

A major task of this consultation is identifyingrealistic and practical alternatives to laying offpersonnel as a response to budget cuts. Some of thealternatives that have ?been talked about includemore flexible opportunities for part-time work,work-sharing and incentives for early retirement.The MCAD certainly supports and encourages thesekinds of alternative arrangements, if they do, in fact,result in retention of minority workers, althoughtheir formulation is not within our area of expertiseand is better addressed by those in more directlyrelated fields.

I would like to raise a word of caution concerningschemes for encouraging early retirement. We cer-tainly have no difficulty with such arrangementswhen they accommodate the needs and desires ofboth the employer and the teacher or administrator.However, older workers (those between 40 and. 65under State law and between 40 and 70 underFederal law) have statutory protection based ontheir age. The line between voluntary early retire-ment and coerced retirement may be very thin. Anysuch offers to older workers must be carefullyscrutinized to see that no rights are violated. Giventhe realities of budget cuts in Massachusetts, how-ever, such measures probably have only limitedeffectiveness, at best. Layoffs appear to be inevita-ble. The major focus of your Committee must beexamining ways to maintain an integrated workforce in the context of layoffs.

There are a variety of legal issues involved in theinterplay between straight seniority layoffs, discrimi-nation and affirmative action which change accord-

- ing to a given, specific, fact situation. I understandthat among the participants at today's consultationare persons actively involved in the ongoing litiga-tion in this area and so I will touch only briefly onthe range of issues presently being addressed inMassachusetts.

Probably the clearest situation where straightseniority is set aside involves those groups ofemployees whose hiring is controlled by Federalcourt orders. Boston teachers and administrators are,

8

of course, the main example of this in publiceducation. Layoffs of other public employees, mostrecently Boston police and fire personnel, have alsO

been modified by Federal court orders. The plain-tiffs in these tases, the minority employees, havesuccessfully returned to Federal court to seek tomodify the earlier court orders, which dealt onlywith hiring, so as to prevent adverse impact whichwould negate the purpose and accomplishments ofearlier orders. In the Boston School Departmentcase, Judge Garrity recently held that layoffs musttake place so that the proportion of minoritypersonnel prior to the layoffs is mainfained.

Another situation which is currently being litigat-ed involves layoffs where the layoff provisions ofthe collective bargaining agreement itself containaffirmative action as well as straight seniority lan-guage. In this case, the City of Worcester SchoolDepartment, with the concurrence of the union, laidoff employees according to straight seniority, disre-garding the affirmative action layoff language of thecontract. Plaintiff minority teachers successfullyobtained an order in State court that the union takeplaintiffs' grievance to arbitration and that plaintiffshad the right to participate in the selectiOn of anarbitrator.

In yet another situation, the Cambridge SchoolDepartment has laid Off teachers using affirmativeaction considerations despite a collective bargainingagreement that calls for straight seniority. Whiteteachers have filed a complaint in Federal courtagainst this action and black teachers have moved tointervene. There apparently has been no hearing inthis case as yet, which will call into issue the legaltensions between affirmative action and so-calledreverse discrimination as well as contract issues.

In a final class of cases, minority teachers in

Springfield who have received layoff notices pursu-ant to strict seniority clauses of collective bargainingagreements have filed comPlaints, several at theMCAD, alleging that the layoffs have an adverseimpact on minorities. The legal theory of adverseimpact holds that a facially neutral employmentpractice that has an adverse impact on a protectedclass is presumptively unlawful, unless shown to bejob-related.

Last hired/first fired layoffs, whether done pursu-ant to a union contract, a civil service statute, ormanagement discretion, will have an adverse impact.The question is: Are they justified as a businessnecessity, or exempt from the law? Under Title VII

17

of the Civil Rights Act of 1964, a bona fide senioritysystem is exempt from coverage by specific statutoryprovision. Chapter 151B, the State anti-discrimina-tion statute, contains no similar exemption. Neitherthe MCAD nor the Supreme Judicial Court has everdecided an adverse impact/seniority case. While thisremains an open question under State law, a reviewof Title VII cases prior to International Brotherhoodof Teamsters v. United States, 431 U.S. 324 (1977), inwhich the Supreme Court held that Title VIIimmunizes bona fide seniority systems from attack isnot encouraging. Courts have been reluctant to fmda violation in these cases because of the difficulty offashioning an appropriate remedy where there areidentifiable, innocent, incumbent employees whowill lose their jobs.

As the above review demonstrates, there is arange of legal issues being litigated in Massachusettsconcerning the impact of layoffs on minority work-ers and on minority teachers in particular. What thereview points to, and what our experience withworking with municipal government as a whole,indicates, is the increased importance, in these timesof economic constraints, of effective and aggressivecivil rights enforcement and affirmative action activ-ities.

Those minority workers most likely to retain theirjobs are those who are protected by consent decreesin Federal court cases first brotight in the early1920s. Other minority workers, and members ofother classes, such as women, who were not thesubject of major discrimination suits during thatperiod of an expanding economy and increasedhiring, do not have similar protection now thatunforeseen layoffs are occurring.

School departments in general, with the exceptionof the Cambridge School Department, caught be-tween the conflicting demands of seniority andaffirmative action requirements, are choosingstraight seniority layoffs.

Litigation clearly should be pursued wheneverpossible. However, litigating major employmentdiscrimination cases is expensive and time-consum-ing and places a tremendous burden on individualplaintiffs and civil rights resources. Relief im anygiven case is limited to certain individuals so thatissues must be relitigated and many persons remainunprotected. For these reasons, we urge an emphasison strong affirmative action provisions for layoffs aswell as for hiring.

Affirmative *action proponents in the past haveconcentrated their efforts on bringing numbers ofprotected classes into the work forde. During peri-ods of expanding economy, this was both necessaryand appropriate. Because the kind of systematiclayoffs we are now seeing was not envisioned, littleor no effort has gone into devising strong andeffective affirmative action procedures for layoffand recall situations. Most affirmative action plans,even quite sophisticated ones, do not directly ad-dress the isSue of layoffs. There is a generalperception that affirmative action, while perhapsappropriate fcie mew hiring, does not apply in thesechanged circumStances of layoffs.

The MCAD iltiakes two major recommendationsto this Committee. First, civil rights agencies andadvocates should &mtinue to press for strict enforce-ment of civil rights laws. It must be clear toemployers, unions, and the general public thatcommitment to the enforcement of these laws willnot falter in spit& of economic contraction.' ThisCommittee should use its efforts to ensure thatresources and commitment for civil rights enforce-ment are not cut back.

Second, the Committee should support a policyencpuraging strong affirmative action provisionsrelating to layoffs. If necessary, such language mustbe included in collective bargaining agreements.Affirmative action programs should at least maintainthe proportion of minority representation prior tolayoffs and address recall and resumption of hiringprocedures.

The MCAD's experience has shown us thatprobably the most effective method for leveragingaffirmative action compliance is through condition-ing the receipt of Federal and State funds on theperformance of certain activities. The MCAD hasbeen able to use the authority of the Federal Officeof Management and Budget Circular 4-95 and asimilar State executive order to leverage individualcommunities, who are applicants for ,Federal andState funds, to initiate affirmative action programs inemployment, housing and contract compliance.

In your advisory role to the United states Com-mission on Civil Rights, you should be aware ofpresent efforts to undercut the present A-95 reviewsystem. HUD is moving to eliminate A-95'reviewrequirements from its programs and in particular the

*Community Development Block Grant and UrbanDevelopment Action Grant Programs. Other Feder-al agencies may well follow suit. Despite its weak-

9

1 8

nesse% the A.:95 scheme is an important means foreffecting affirmative action activities by publicemployees. Its loss will severely hamper effortt toincrease affirmative action programs and activities.

An effqrt is needed to expand effective affirmatiyeaction programs for school employment. It is imper-ative that agencies such as the Commission on Civil

10 ,

Rights take a strong lçaderthip role in assuring thatcivil rights enforcement and affirmative actiOn ef-forts continue and "are strengthened during thesedifficult times. Aggressive activity, is necessary if we

, are going to have any sort of equitable minorityParticipation in public employment in Massachusettsin the 1980s.

19

4. Layoffs and Affirmative Action: TheLegal Issues and Reasonable Approaches

j. Harold Flannery

Mr. Flantiery is a partner in the Boston law firm ofFoley, Hoag- & Eliot He represents the CambridgeSchool Committee in g law suit filed by the CambridgeTeachers Association charging that the school commit7tee violated the collective bargaining agreeMenrij,deciding not to use seniority as 'the sole biesis fordetermining layoffs under Proposition 21/4. He wasasked to address the legatissues involved in questions oflayoffs and affirmative action dnd to suggest ap-proaches to take in coping with thispioblem. The viewshe presents are sokly his and not those of his law firmor clients.

I shall try in this brief paper to describe theproblem correctly, to summarize the present lawunderstandably, and to think aloud with you aboutsome constructive ways to cope with it. To mymind, the issues illustrate some fundamental axiomsabout our law that are sometinies overlooked. Tomention them now may seem simplistic or obscure,and I hope that their significance will be clearer aswe work our way through the issues. But I domention them here for more than just their intellec-tual interest; bearing them in mind will help us, Ibelieve, to address the questions more soundly thanwe otherwise might.

First, the law is not, and should not be, acollection of a priori absolutisms. Words such as"always" and "never" have the virtue of predictabil-ity, and relying on them spares Us the pain of hardthought and having to weigh oUr values more thanonce. However, such notions, and their false sense ofsecurity, are worse than useless; they can produceresults that are unworkable and unfair. Consider, forexample, that "race may never be considered" can

perpetuate illegally discriminatory status quo;conversely, minority status always earns absolutepreference" can be unfair to the beneficiary, his/hercsimpetitors, and the job itself.

Although I have no empathy with those .whoknowingly want to perpetuate previous discrimina-tion, I also do not mean to sneer at all those whoargue that race should never be considered. Formost of our history, the only consideration of racehas been to harm or exclude minorities, and for somefair-minded persons the only safe course will be toremove such consideration, benign or malignant,from our society, completelrand at once. Converse-ly, some other fair-minded persons argue for anabsolute minority preference, because some whiteshave enjoyed it, and it will overcome a painfullegacy quicker. I believe that proposition, despite itsseeming logic, will be self-defeating in this predomi-nantly nonminority society, and I believe it issocially inefficient.

During the 1960s, I observed Southern bureaucra-cies, including many educational ones, closely andon-site. Race was a basis, indeed a requirement, forpreferment, and many incumbentsboth absolutelyand in comparison to parallel minority systems that Iwas observingwere nincompoops. And while Ihave not observed it myself, I have even heard itsaid that some of our ethnic bureaucracies closer tohome are fallible.

In any event, the poiottif all bf this is that the lawdoes not and should not, ibr its own sake and ours,view affirmative consideration of minority status on

t. an absolute"never any" or "always so much"basis.

My second axiom about the law is that it shouldbe an instrument for solving problems by reconciling

11

contending interests. The advantages of the rule ofl*w are that power yields to principle, and contro-versies can usually be resolved before conflictinginterests confront each other in ways that harm third

Vat.ijet land often even themselves. We must adhere,.to the rule of law in order to gain those advantages.'But if the law is used to vindicate extreme positions,rather than to accommodate competing legitimateinterests, it will -become our resented master ratherthan our helpful servant.

Finally, a particular resolution or decision may beentirely lawful, but if it is too widely perceived asinfeasible or unfair, it will not survive. That is, Ithink President Eisenhower had it backwards whenhe used to say that you cannot legislate hearts andminds, and you must reach them first. In my view,the law can control behavior, and 'attitudes willfollow. However, I also believe that a particulardecision, no matter hox4 lawful it may be, will not

- Survive if it is seen by nOpparties to the dispute, andParticularly by those who are not disputants bntwho have a stake in the outcome, as unworkable orunfair. et"

My third axiom is that the law can sort out anddefine rights and duties, and it can prescribe remed-ies or resolutions. But resolutions are not self-execut-ing, and the law itself does not implement them;people do. And the law's role in providing themutual respect and cooperativeness that are neces-sary for the effective implementation of any resolu-tion is distinctly subordinate.

Before turning to the present law of our subject, Ishall state the problem so that we are all thinkingand talking about the same things: When minorityemployees are disproportionately junior to nonmi-nority employees, the minority employees will bemore adversely affected by layoffs based upon the

Phay, Reduction In Force: Legal Issues and RecommendedPolicy, NOLPE (1980). This piece does not focus on aflirmativeaction and layoffs, but it is an informative discussion and casecollection of a number of (mostly) procedural issues.3 Singleton v. Jackson Municipal Separate School District. 419 F.2d 1211 (5th Cir. 1970). To digress briefly, some of the Southernteacher cases presented painful policy questions. Many systemshad hired for their black schools without the same attention toquality that they had reserved for their white schools; moreover,many black teachers, because they themselves had been relegatedto segregated, inferior schools, were in truth less able than manyof their white counterparts. One approach to that issue was tosay, in effect, if the weaker teachers were good enough for blackchildren yesterday, they are good enough for everyones childrentoday. Many black families saw that approach as retributivejustice and demurred to it. Another approach was to evaluate ail

12

seemingly neutral principle of senioritylast hired,first fired. A recent monograph states the problemsuccinctly in the context of public education:

. . .most schools have recently addedoften after mucheffort and expenseminority group teachers who havelittle seniority. A ItIF (reduction-in-force) pdlicy basedsolely on seniority will mean discharging these recenthires.'

When the problem is turned around, the questionbecomes: Under what circumstances, if any, may ormust minoiity faculty and staff be retained "put oforder," i.e., ahead of more senior nonminorities?Several established legal principles start us towardan answer to that question, but I must emphasizethat they do not take us far. Indeed, to state themwill leave us at a crossroads more than it will pointus in a clear direction.

First, a reduction-in-force or other faculty realign-ment may not be a subterfuge or vehicle forintentional discrimination. Southern school desegre-gation permitted many systems to reduce theiroverall faculties by going, from racially dual systemsto unitary ones, and in the Jackson, Mississippi, case,the court forbade systems to seize the opportunity ioget rid of black teachers on account of race.3 Othercases before Singleton had forbidden school systemst& discriminate against minority teachers, providedyou could catch them at it; but note that Singletonpermits, indeed requires, consideration of race in thecontext of some other primary event, i.e., a layoff.And to the extent that it shifts the burden ofjustifying a racial effect on non-racial grounds to thesystem, it suggests a presumption that minorityfaculty will continue in the system, and it iS thussomething more than just the (then) latest pro-nouncement against discrimination. It says to thesystem, in effect, if you have a reason other than the

faculty by ostensibly neutral, objective standards, and then todischarge the lower achievers, i.e., the blacks. That approach wasin some respects worse because it operated to perpetuate theeffects of previous discrimination, and it rethined older teacherswho had earned marginal extra credits from marginal institutionsfor salary purposes ahead of new B.A.'s from Fisk, Dillard or"Ole Miss." And of course, the Educational Testing Servicedescended on the situation offering to test any competency forany purpose. Forgive a lawyer's bias when I say, bless theSouthern Federal Judiciary, for many courts required systems toretain their minority teachers and pay theta (part salary plustuition) to upgrade their skills. That helped a lot. I shall close thisdigression and bring us back to our subject: I do not recall anysystem proposing to rethin its teachers on the basis of seniority. Iassume that the greater mobility of white teachers and hence theircomparative "juniority" was coincidental.

21

race of those about to be disadvantaged, let usexamine it for legitimacy.

Second, a number of cases establish that a publicemployer, legally obliged to take affirmative actionin order to cure the effects of,previous discrimina-tion, may not nullify the gains by seniority-4asedlayoffs. That principit applies not ohly wlien acourt has found previous discrimination, as in theBoston police, fire and school cases, but also wlere aplaintiff and a defendant have entered into a consentdecree which denies previous discrimination butrequires affirmative action. It is an open questionwhether seniority-based layoffs are forbidden toemployers who have adopted affirmative actionplans, without a hnding of previous discrimination,pursuant to Federal or other contractual obligations.However, where the effects of previous discrimina-tion must be remedied, all procedural impediments(such as collective bargaining agreements, tradition-al and eyen State law) must yields even ifthey themselves are neutral. I use the term l'proce-dural" because I know of no remedies. requiring theemployment of persons who are unqualified by somelegitimate standard.

Third, where a seniority-based layoff harms mi-nority employees disproportionately because theyare junior, the discriminatory effect is clear, so is theeffect illegal? An employer that prefers seniority canargue that its scheme is constitutionally permissiblebecause there is no intent to discriminate, and thatTitle VII of the Civil Rights Act of 1964 (thepm' cipal Federal job anti-discrimination law) explic-itly permits good faith seniority systems that have aracially disparate impact Whether such an effect ispermissible under State law, which does not have aparallel seniority system authorization, is an openqupstion.

Fourth, Title VII also permits an employmentcriterion that has a discriminatory effect if it is abona fide occupational qualification. However, thestatute also seems to say that the one criterion towhich that exception cannot apply is race itself.That )oinciple would seem to forbid race-basedemployment decisions however well-intentionedthey might be. In United Steel Workers v. Weber, 443

3 Oliver v. Kalamazoo Board of Education, 498 F. Supp 732 (W.D.Mich. 1980); Brown v. Neeb, 49 LW 2578 (6th Cir. 1981).4 University of California v. Bakke, 438 U.S. 265 (1978).

Fullilove t Klutznick, 48 LW 4979 (1980); and so have somelower Federal courts. Talbert v. City of Richmond, 49 LW 2720(4th Cir. 1981). Viewed as & neutral principle; do those casessuggest that non-minority status may also be given affirmative

U.S. 193 (1979), however, the Supreme Court said towhite employees, who were alleging that a volun-

lary affirmative action program was omitting themillegally from apprenticeship opportunities, thatvoluntary remedies for previous underemploymentof minorities are permissible, Iven where they havean adverse effect on non-minonties.

Before we return to the question of public schoolsystem layoffs, I want to emphasize that the affirm-rive action scheme approved in Weber was intendedpurely and simply to improve minorities' employ-ment opportunities; it had no larger societal objec-tive. In Bakke it was argued by some thataffirmative action would ultimately benefit minoritycommunities as well as the minority medical stu-dents themselves, but no one suggested in Weber thataluminum users are affected whatsoever by the raceof the person who heats their ingots.

Fifth, other Supreme Court cases, includingBakke itself (despite the invalidation of the particu-lar program involved there), have very cautiouslyapproved some voluntary affirmative considerationof minority status.'

A sixth legal principle with possible applicabilityto teacher layoffs appears in the Supreme Court'sdecision in Swann v. Charlotte-Mecklenburg Board ofEducation, 402 U.S. 1 (1971). In the course of sayiiigthere that Federal law does not require pupil .-desegregation unless the existing segregation isfound to be illegal, the Court was careful to reaffirmthat school authorities are traditionally empoweredto desegregate voluntarily for educational reasons.Put differently, no one las a legal right to ttsegregated education however it may have comeabout, and school boards (and State legislatures, asin Massachusetts' Racial Imbalance Act) may con-sider race in order to bring children together foreducational reasons. Note two aspects of that deci-sion that may make it different froth employeelayoffs: first_race is used for inclusionary purposes,i.e., to bring children together. Second, students(and presumably teachers) would be reassigned onthe basis of race, but no one would lose an existingright or benefit; indeed, all would gain new benefits.

effect under some circumstances? Perhaps, as a matter of logic orprinciple, but I do not know of any cases upholding affirmativeaction for non-minorities. That is not to say, however, that groupsother than minorities have not been excluded or omitted fromcertain employment opportunities on some other invidious basissuch as religion, ethnicity or sex.

13

22

Lastly, let us bear in mind that Title VII indpossibly other anti-discrimination laws forbid anunjustified discriminatory effect (subject, however,to such justifications as bona fide seniority); whereasthe Constitution forbids only deliberate or intention-al discrimination. Arguably, therefore, a well-inten-tioned public employment criterion is constitutional-ly" permissible even where it has an adverse racialeffect or byproduct. Is a racial effect that is

foreseeable and avoidable sufficiently intentional as,to be unconstitutional? Or does the intent standardrequire an impermissible objective? The answer isnot clear at this writing, but certainly to my mind, aclaimant who can show an adverse racial effect anda neutral means to the same end has established

unconstitutionality.I suggest that the foregoing principles illuminate

our questions without answering them.° I alsObelieve, as I tried to make clear at the outset, thatthere is not one uniformly applicable answer. Rath-er, the answer in a given specific situation shouldcome from a iensitive, conscientious weighing of thecompeting interests; particularly, in the context ofpublic school teacher layoffs, the educational inter-ests of the students. At the risk of being trite, Iemphasize that public school systems are not main-tained for the benefit of teachers and administrators,or judges and lawyers, or football fans or evenatleast directlythe taxpayers at large; they should bemaintained for the students in the most enlightenedway that we can afford.

Therefore, assuming that a school system is notconstrained by preexisting selection criteria, such asa court order which may not be nullified, or the RIFterms of a collective bargaining agreement, let us tryto identify and weigh the competing interests to seehow and whether they can be reconciled consistent-ly with the legal principles discussed above.

First, do minority and nonminority teachers havea legitimate interest in being employed? Of course,but that tells us only that there is a iiroblem, i.e., thatthere will be plaintiffs and defendants.

Second, do teachers have a legitimate interest inthe continuity of their emPloyment, including somedeference to seniority? Any teacher, minority ornon-minority, will say "yes" to that, and I wouldagree. Moreover, my intuition (as opposed to famil-

Some employers, public and private, have been able tO avoidconfrontations over the hard questions by negotiating compro-mises with their employees. Proportional reductions-in-force, in

14

iarity with empirical data or studies) tells me thatstudents lave some positive interest in faculty

stability and continuity.Third, should seniority be paramount? We have

already seen in the Weber case that, even where theonly competing interests are minority and nonminor-ity jobs, seniority can be required to yiela toaffirmative action for minorities. Therefore, in thepublic school setting, where students' interests arealso invo&ed, it would seem that seniority is relativerather than paramount; unless it correlates highlywith teaching proficiency or some other studentneed. Unless I am grossly misinformed, teachereffectiveness and years of experience correlatewealdy. Moreover, no one would reduce the lastchemistry teacher because she is junior to a host ofus liberal arts types.

Nevertheless, putting aside Weber and extremeexamples of programmatic needs, is it discriminatoryto retain a junior teacher ahead bf a senior teacher,on the basis of !ace, where both are qualified? Putdifferently, assuming equal professional qualifica-tions, can there be a legitimate basis for retaining ajunior minority teacher ahead of a senior non-minor-ityone

If you believe that school boards may give theirstudents the best faculties obtainable, even when thatrequires some subordination of teachers' employ-ment interests; and if you believe that students needa racially heterogeneous faculty, much as they needa broad curriculum and professional diversity; thenyou can argue, consistently with the present law, fora reduction-in-force that gives affirmative consider-ation to teachers' minority status. The inclusion ofminorities may not be a disguise for excluding non-minorities in general or other subgroups in particu-lar; nor would a rigid quota be advisable, particular-ly if it bears no relationship to a plausible standard,such as the pupil composition of the school systemor its community.

In the final analysis, we live in a heterogeneoussociety. Children first encounter and enter oursociety through our schools, so to me it is sensible tostructure that first public institution in ways that areat least somewhat representative of society. Non-minority children in particular will benefit attitudi-nally from the presence of minority adult role

which seniority is a factor but the racial percentages remainconstant before and after the reduction, have been implementedsuccessfully.

23

models and authority figures. Cognitively, I do notsuggest that there is a minoiity arithmetic differentfrom non-minority arithmetic, but the life experi-ences of many minority adults are sufficientlydifferent from those of non-minorities as to bring an

added dimension to a number of subjects. Too manynon-minority children have been ignorant too longof the American minority experience.

If that makes sense to you, then I believe that itshould and will make sense to the law.

15

2 4

5. Layoffs in the Boston Public Schools: S

A Political Issue

Larry J. Johnson

Mr. Johnson is an attorney on the staff'of the Centerfor Law and Education, a federally ;funded centerproviding technical assistance to low legal serviceoffices on cases involving education aues, Sinte 1977,Mr. Johnson has served ar* counsel to the plaintiffs,black students, in the Boston school desegregation case.

I was asked to speak to the legal issues of layoffsand affirmative action as they affect the Bostonschool desegregation case. That assumes that thereare new legal issues arising from the current roundof layoffs being proposed by the Boston SchoolCommittee or by other school committees aroundthe Commonwealth.

The issue before the Boston School Committeeand the Federal Court today is the ,same issue thatwas facing it eight years ago when the case wasinitiated. It is also the same issue that was facing thecourt six years ago when it issued its facultydesegregation orders. At issue is whether or not theFederal Court is empowered to order a race-con-scious remedy to correct a situation of discrimina-tion against black teachers and administrators whensuch discrimination denied black children an equaleducation. In 1975, Judge Garrity ruled it waswithin the jurisdiction of the court to order a race-conscious remedy to correct the past employmentdiscriinination of the tostocn Public Schools. Thatdecision was upheld by' tile First Circuit Court ofAppeals and was not reviewed by the SupremeCourt, therefore allowing it to stand.

So the issue 'before the school committee or thecourt today is the same one as before: that is, will itutilize a race-conscious process in the layoff ofteachers to correct past discrimination which ad-

16

versely affects the educational opportunity of blackstudents within the Boston Public Schools?

It is interesting to note some prophetic languagefrom the First Circuit Couit of Appeals' opinkpn in1976; Which 'reads that, "while affirmative sedan torectify past discrimination is more painful during atime of underemployment than full employment, it isno excuse for inadequate action. The real questionis whether or not the Boston School Committee orother school committees addressing the remediationof past discrimination against people of color,women, or any other nffected group, will use theexcuse of Proposition 21/2 for inadequate action.Fortunately, the Federal District Court has notallowed the Boston School Committee to rely onthat excuse.

However, school committees in other jurisdictionsdo not have the weight of Federal District Courtorders behind "them in most instances. Thu's, whatconfronts us now is not a legal,lut a political issue.That is, whether, the judicial system when con-fronted by the political force of organized teacherswill capitulate in the obligation to provide equaleducational opportunity to children of color. This isa political issue primarily because, from my percep-tion, there are no less monies within the Common-wealth now than before Propostion 21/s.

A political decision has been made as to where toallocate the monies within the Commonwealth, and....that decision has been made not to allocate thosemonies toward the education of our children. It isthat decision that ought to be addressed, in additionto how the money is to be spent that those in powerdisburse through the public sector.

Some people will suggest that there is a new legalissue presented by the present round of layoffs. That

25

"new issue" is whether the white staff presentlyemployed by the school committee should' havegreater rights than whites "at large." To suggest thatthey should, is;,1' to my way of thinking, illokical.Those white employees within the work force arethe very ones who live benefited by discriminationagainst black employees. Therefore, they are, to myway of thinking, the more appropriate persons tobear the costs of having to remediate past discrimi-nation against black employees. They got their jobs,they got their homes and whatever other materialgoods they have, on the backs of those blacks andother minorities who were not employed. Thus, forthem to argue that their length of employment iscause for them not to be discharged, I think, wouldclearly frustrate the intent of the Thirteenth Amend-ment of /he Constitution to remove the vestiges ofpast slavery. If those whites who have benefitedfrom our enslayement are allowed to use the,excusethat they do not want to give up their material statusin order to reMfy that wrong, then how can thatwrong be rectified?

As an attorney for the Boston school departmenthas stated on various occasions recently, we aretalking about a "zero sum" game. The pie is notgetting any larger. If you are going to correct pastwrongs, it means a different allocation within thesame 'pie. That is why I say that the fundamentalissue before this Commission, before the Common-

,wealth and, ultimately, before the country, if not theworld, is how we will-allocate resources.

I believe, in the first instance, the business commu-nity has decided that it is no longer in its self-interestto allocate resources for public education. They nolonger need American workers. They can findcheaper labor elsewhere. And, anyway, most oftheir children receive education in private schools.

Further evidence that this is a political problem isseen in the fact that last year, even prior toProposition 21/2, the State Board of Education wassuing the Boston School Committee to prevent apossible closedown of the system for lack of funds.At the same time, the Massachusetts General Courtwas withholding about $30 million from the schoolcommittee that the committee was entitled to underthe State's educational funding statute. Thus, we hadthe State not meeting its full obligation to fund theBoston Public Schools, while its agent, the StateBoard of Education, was suing the school district toremain open 180 days, in spite of insufficient fund-ing.

Thafihe teachers union's position is also,politicalis evidenced by the fact that it is supportingseniority which will cause more of its members tobe laid tiff. The court-ordered alterhative Of "affir-mative action," has the irony of retaining teacjiers ata lower salary rate; therefore, more teachers overallcan be retained. For example, if you are retainingteachers who have an average salary of $15,000 asopposed to teachers who have an average salary of$25,000, you therefore can retain 40 percent moreteachers.

Of course, in supporting seniority they are alsosupporting racisni, which again is destructive oftheir own self-interests Teachers are saYing thatwithout the thousand laid-off teachers in Boston, thequality of education that students are entitled tounder State Board of Education policies will not bedelivered. Yet those same teachers are adhering tostrict seniority as the sole criterion in layoffs. Thisputs them in a position that the people I representbelieve to be untenable.

From . my perspective, assuming no change ofheaKt by the taxpayers, there are four possiblesolutions to the current situation. The first could bethat Boston Mayor Kevin White finds some_ moremoney within the city budget and all thousandteachers are rehired. I think that is very unlikely. Ifit did happen, the confrontation we are currentlyfacing within the school department would onlytake place in another area of the public sector. Itmight be in the garbage collection, or in health andhospitals, but somewhere within the public sectorsomeone would have to pay the cbsts'i.vere the cityto decide that it was in the best inter st to allocate anadditional $20 million to the school stem. Thus,this option does nbt really address the undamental

- political issue of allocation between tbe private andpublic sector. It would address misallocations withinthe public sector, if taken from capital debt orconstruction, not salaries of other public employees.

The second possible solution is that the judicialsystem could capitulate to the political power of theunions and uphold strict seniority for white workers.The feelings of white workers that they ought not tohave to lose anything at the expense of blacks will bereaffirmed. The effect on blacks will be furtherdisillusionment. They will perceive that so-calledsolidarity among workers only goes so far. It followsthe color line like everything else within our society.

The third possible solution is that black workerscould "win," and the system again would be vindi-

26

17

gated, because blagk workers will feel that it has;

worked for them. It is ironic that should either of the

two competing interests within the working class"win," the system also wins. Should blacks win, thenthe white anger and backlash that we were begin-,ning to see hi the Boston police and fire departmentswill be seen throughout the city and the country.White workers are mit going to tolerate blackworkers employed at, what they believe to be, theirexpense. But white workers still will not identify oureconomic system as the culprit. They will identifytheir black colleagues as the culprits.

A fourth outcome that I do not hear anyonediscussing, and the only one that has long-termviability, is that black and white teachers shouldvoluntarily decide together to share the reduction.

' This should be done, if they truly believe that werequire the 5,000 teachers to provide Boston's schoolchildren some semblance of a quality education. Thisproposal requires voluntary reductions in salariesfrom an average of $21422,000 to an average of915-516,000. We know how hard it is for people togive up anything, but that is the only solutioncapable of long-term non-violent resblution of thisconflict. I do not see this solution as likely, probable,or even possible, given`the current psychology ofour society.

Therefore, what I think will result both here inBoston and around the country is that white workers

18

will win a few, and ,black workers will win a few,but they both will lose ultimately.

As to Boston, I believe that the law is here tosupport a black teacher's victory. However, it is just

a short-term victory. I yePresent black students inthe school desegregation case and just secondarilyblack teachers. I know that if black teachers win,black students will lose, because angry white teach-ers will not teach black students. And they, theteachers, are in control of our children's education.

That is why I am concerned about my clients andthe likelihood that there will be no victories fromthis struggle. There are 10 educational goals forpublic school established by the Commonwealth ofMassachusetts: physical and emotional well being;basic communication skills; effective use of knowl-edge; caliacity and desire for life-long learning;citizenship in a demdcratic society; respect for thecommunity of man; :occupational competence; un-derstanding of the environment; individual valuesand attitudes; and creating interests and talents.

No one in this room or in the city of Boston canhonestly represent to me as counsel for the Slackstudents, who make up 46 percent of. the studentpopulation of the Boston Public Schools, that theywill achieve these 10 educational objectives withinthe Boston Public School system this year.

0.

27

6. Affeniative Action in Public SchoolsDuring Times of Psychological and FiscalRecession

Dr. George S. Smith

Dr, Smith is the Equal Opportunity/Affirmative ActionOfficer for the Worcester Public School& This paperaddresses the need for affirmative action in publiceducation employment and suggests some steps whichcan be taken to ensure minority representation in publicschool work force&

After a decade of effort bY thousands of people toalleviate the impact of discrimination on children,the results are mixed. The case for equality andfairness in education and educational employmenthas become complex with no simple solutions orguidelines from the courts.

One inescapable conclusion is that reform ofcurrent employment practices governing the select-

,,ing, hiring and promoting of minorities, women andhandicapped employees must continue. Reductionsin resources in hiring must not be allowed to impedethe positive growth of equal employment opportuni-ty that has been realized through affirmative actionprograms.

The economic conditions facing public schools inMassachusetts have serious ramifications for equalemployment opportunity and affirmative action pro-gramming The legal responsibilities of the ,schoolsystem to adopt equal employment opportunity andaffirmative action (EO/AA) programming havebeen established. But the seeming resurgence ofconservative attitudes and the passage of Proposi-tion 2% will require commitment to the concept ofequal opportunity.

In November 1980, the voters of Masiachusettsapproved referendum 2, commonly known as Prop-

osition 21/2. This referendum was a tax limitationreform act, the passage of which amended a numberof Massachusetts statutes. Under Proposition 21/2,local tax on real and personal property may notexceed 2.5 percent of the full and fair cash value ofsuch property. Cities and towns will have from fivetO eight years to reach this tix limit by reducingexpenditures 15 percent each year. The fiscal auton-omy of school committees has been deeply affectedby this statewide referendum, and public schools inMassachusetts can be devastated by the effects ofProposition 21/2.

Consistent with the trend throughout the country,student enrollment in public schools in the Northeasthas been declining, bringing to an end an era wheneducational institutions and their staffs grew tremen-dously in response to increasing numbers of chil-dren, affluence, and the perceptions of the schools associety's problem solvers. Accompanying that de-cline has been the fmancial pressure of spiralinginflation during the last five years. Proposition 21/2 inMassachusetts makes educational employment mat-ters even worse.

Retrenchment is the unavoidable result. Therewill be many impacts of this retrenchment on peopleserved by the public schools, but none will be asserious as the impact on minorities and women. AU.S. Department of Education analysis points out"that financial stringency and decline have reducedthe total demand for teachers and sharply decreasedthe upward trend of their employment of past years,

28 4

19

resulting in many instances in layoffs of educational'

personnel."' Traditionally, those people with theleast seniority are the first to be laid off in publicschools. Nevertheless, the legal responsibilities tothose people who have been recently hired as aresult of equal opportunity and affirmative actionprograms continue to exist for public school systems

receiving Federal funding.If the policy of using seniority and tenure to

decide which school employees will be maintained iscontinued, those hired under comparatively recentaffirmative action programs will be laid off. Educa-tors should explore and giVe serious consideration tonew policies that will not reverse the positive effectsfor minorities that have resulted from affirmativeaction programs. More successful remedies to elimi-nate the inequity that disproportionately affects

women and minorities must be found; to do lesswould be to abandon a significant portion of thepopulation and repudiate a long struggle for equityand equal Opportunity.'

An effective EO/AA officer or personnel manag-er in an urban school district should recognize theneed, at the time of staff reduction, to explore policyalternalives to seniority and tenure to prevent theelimination of affirmative action efforts. TheEO/AA officer or personnel manager should realizethat during a period which is both psychologicallyand economically recessionary, he or she shouldprovide leadership and direction for the publicschool district by providing: (1) the educationaljustification for affirmative action, and (2) policyalternatives for affirmative action.

Educational Justification for AffirmativeAction

Urban schools which have obligations for thedevelopment and implementation of affirmative ac-tion programs cannot obliterate the effects of yearsof discrimination; however, they can bring theproportions of affected groups into balance withother employees.

Moreover, the implementation and maintenanceof an effective affirmative action program canenhance the quality of education offered to allstudents, particularly minority students. Black and

' Education Finance Center, Equal Rights for Women inEducation, and Education Commission of the States, Retrench-ment in Education: The Outlook for Women and Minorities(Denver, Colorado: Education Commission of the States, 1977),

P. 3.

20

Hispanic students can benefit by affirmative actionprogramming because black and Hispanic staffbecome a part of the 'educational process. Minority'staff members can also give special assistance toblack and Hispanic students in the learning processby drawing from their own educational experiences.Minority staff in a school district can improve theeducational experiences of majority and minoritystudents by reviewing instructional materials andremoving racially stereotypic portrayals or detri-mental characterizations.

Urban school-districts attempting to enhance thequality of education offered to minority studentsshould consider affirmative action programming.Through the implementation and maintenance of aviable affirmative action program, an integratedwork force can be constructed. As Gentry; Jonesand others suggested in Urban Education: The HopeFactor, an integrated work force enhances an educa-tional environment because it offers positive rolemodels for the socialization process of all students, °

particularly minority students.' Furthermore, stu-dents acquire the temperamentbeliefs, feelings andexpectationsappropriate to positive roles. With aschool district employing minority teachers, positiverole learning for black and Hispanic students canexist.

An affirmative action program in an urban schoolsysteni ,should call for the employment of blacks,Hispanics, women and handicapped persons (hereaf-ter balled "protected class members") at all leliels of .

the table of organization...By implementing affirma-tive action progranuning and integrating its workforce, an urban school district can build bettercommunications and stronger ties between theschool and community.

Protected class members bring actual sensitivitiesand experiences to an urban school district, enablingthem to understand the values and life experiences ofminority children. This understanding improves thelearning process in developing parental understand-ing of the value of education and it increases theirsense of responsibility for achieving this expectation:When school personnel perpetuate a monoculturalpattern that is limiting and reflects society's practiceof oppression, they scarcely teach students to their

p. 33.3 Antron A. Gentry, Byrd L. Jones, Carolyn Peck, Royce M.Phillips and Robert H. Woodbury, Urban Education: The HopeFactor (Philadelphia, Pa.: W. B. Saunders Company, 1972).

29

full potentiO. Protected class members serve as rolemodels in raising the level of goals, aspiritions andcareer objectives for all students; particularly minor-ities who suffer from oppression.

In urban schools, student learning has been coin=plicated 1* such factors as improper and/or insuffi-cient diet, excessive television viewing and lack ofmotivation, Many students come from homes wherestandard English is not spoken, where readingmaterials are minimal or non-existent, and whereparticipation in school affairs is low. Teachers Mustwork especially hard to overcome such difficulties.Teachers hired through affirmative action programscan contribute a perspective about dealing withthese problems that is not easily learned in collegeclassrooms.

With meaningful interaction among protectedclass members, students and parents, better commu-nication and stionger ties between the school depart-Ment, homes and community agencies can be built.Protected class members can make numerous contri-butions in developing the educational climate so thatit is conducive to learning for inner-citly students.

Policy Alternatives for Affirmative ActionDuring a time of stringent economic constraints, it

becdmes increasingly important for public schools insearch of ways of maintaining and strengtheningtheir EO/AAcommitment to consider the followingrecommendations:

a. Review policy alternatives such as earlyretiremenv programs, work-sharing programs, andleave of absence programs for existing staff. Theseprogram options may provide opportunities tooffset the negative impact of retrenchment.b. Review all entry level and promotional crite-ria for all job classifications to determine their job-

relatedness, theiOvalidity and their predictabilityof successful performance of employees on thejob, (In other words, review the educationaleffectiveness of experience and educational re-quirements.)c. Modify collective bargaining agreements toinclude an equal opportunity clause, a layoffprocedure which considers factors other thanseniority and tenure, and a promotional programwhich is equitable and job-related. Review anycontractual provisions that could result in "ad-verse impact" for minorities, women and handi-capped persons. Recognize the legal liability ofschool committees and professional associationsfor contractual agreements which are discrimina-tory or result in "adverse impact."d. Review applications, tests and selection pro-cedures for their adherence to EO/AA require-ments. Where there are few job vacancies, it is inthe best interest of public school administrators todo so.Much that needs to be be done cannot be

legislated. The American public must be educated tothe legal, educational and ewnomic rationale forequal employment opportunity.

Both public and private sector employers must beeducated to the real benefits of an integrated society.When all members participate on an equitable basis,society can capitalize on a broader base of humanresources and talents. With this philosophy, theremay come a time; if schools successfully help indefining and implementing the solution to theproblems, that an affirmative action officer Maybecome unnecessary. Achieved goals will reflect theAmerican belief that all individuals are equal andshould have access to success.

321

7. Minority Educators and Proposition 21-/2

Shirley F.D. Carter

Ms. Carter, regional director of the Black Educatorsand Teachers Association (BETA), Lc a Staff Develop-ment Trainer for the Worcester Public Schools and hasbeen active in the suit filed by black Worcester teachers

against the Worcester Teachers Associaa.

Many teachers have been laid off in Massachu-setts, and layoffs aPpear to be affecting minorities ina disproportionate manner. As a result of theselayoffs, many issues confront black teaChers andblack teachers associations.

In Worcester there is a reduction-in-force (RIF)contract provision which is meant to protect minori-ties. Having a contract is not enough. Unlesscontractual agreements are enforced, minoritieshave no protection.

Even where school committees have taken action,such as Cambridge, and tried to retain some minori-ties, the union filed a suit charging the schoolcommittee with violation of the labor agreement. InBoston, where the Federal Court ordered protectionof minority faculty, in a 10-year desegregation suit,the union challenged 'the order.

There are many reasons why there need to bestrong Federal and State policies on retention ofminorities in addition to local adMinistrative poli-cies. Among these are:

1. Maintenance of minority role models for agrowing segment of the student population.2. Correction of stereotypical thinking arisidgfrom distortion of the multicultural aspects ofAmerican society.

3. Making possible the positive student-teacherrelationships sparked by informal counseling byminority educators.4. Reducing the heavy financial and psychologi-cal burden layoffs impose on black educators.5. Identifying and interrupting racism whichresults in declining support from school commit-tees and negative judgments concerning urbanprograms.Budget constraints are being used to justify the

disproportionate 'impact of layoffs on black educa-tors. When minority teachers are laid off, blackchildren are again left without informal counselingor support. White children will relearn the stereo-type: blacks are more expendable. Management inlarge urban school systems has failed to serve poor,black, Hispanic and special needs children alongwith the middle class.

Federal programs must continue to insist uponrole models, hiring, training, promoting, and retain-ing minorities to reflect the populations beingserved. Yet, President Reagan plans to return re-sponsibility and authority for such programs to theStates. What will then happen to compliance with,and enforcement of, Federal regulations designed toencourage minority participation?

Solutions Are NeededCity government could encourage humane and

effective use of the Nation's multiracial resources bymaking affirmative efforts to include minorities in alldecisionmaking and policymaking bodies. Most mu-nicipalities, however, do not do so. On the contrary,many hide behind contract provisions, feigning

2231,

helplessness to cope with strict seniority policies,ignoring affirmative action language that exists insome collective bargaining agreements, and blindingthemselves to reality. In education, the real issuesinclude the changing ethnic population of the inner-city schools. White suburban growth has made amockery of Some of the formulas developed toaddress the massive racial isolation of our biggestcities.' Management energy and effort are geared topreserve the status quo3 and to cater to a dwindlingwhite student body in urban centers.

The concerns of the Black Educators and Teach-ers Association (BETA) may appear to focus onjobs, but its real focus is on poor and minoritystudents with little hope. Percentages, formulas andtime lines are distractions from the practical, com-monsense, day-to-day classroom issues such as:

Who will .be there to talk to Tunmy about hisfamily-religious conflict with after-school bandparticipation?

, Why have one or two black 'teachers beenexpected to counsel all the black students in theschool, run the Martin Luther King Program andset up the staff development "sensitivity" pro-grams on black history and culture?

Should children expect to see and hear Spanishteachers only in bilingual programs? When Feder-al money goes, will the bilingual teachers go too?

Will parents be expected to volunteer servicesin schools where aides and auxiliary helpers havebeen laid off7

What role is Federal and State governmentgoing to play in these recessionary times toprotect minorities?

Underlying IssuesMeeting increasing school budget costs with

property taxes has inspired voters to revolt, usingthe polls to voice rebellion. Some change or reliefhad to occur. We now have a State-mandatedreduction in property tax for localities.

School systems, in what appears to be a bureau-cratic maze of indifference and inefficiency, havelost the confidence of parents and taxpayers. Whyelse would parents stand silent while school commit-tees and legislators implement budget cuts that fall

John Caughey, "Stunted Desegregation in Los Angeles,"Integrateducation issues 97-98, vol. XVII, nos. 1-2 (January 1979),pp. 37-39.

Christine R Dunphy, "Worcester: A Special Report," EqualEducation in Mastachusettr A Chronicle, vol. II, no. 5 (March1981), pp. 4,5.

disproportionately on education and lay off hun-dreds of young, qualified, tenured teachers, includ-ing the newly hired minorities. Some of them teachin federally funded programs which have filled localeducation coffers since the late 1960s.

State and Federal Policies Are NeededThe critical issues are older than Proposition 21/4

and deeper than protecting jobs currently held byBETA me&ers. Unfortunately, school manage-ment only began to address underrepresentation ofminorities in the 1960s and 1970s through the prod-ding of Federal and State government and under'threat of court suits., If there is any time when governmental protectionfor minorities is needed, it is in a time of recession.Civil rights policiei must be made explicit. Theymust be enforced and retention must be written intoState and Federal plans.

There are great social advantages when rich andvaried cultures learn to live and work together withdignity and respect. Instead of looking forward andcreatively searching for methods of coping with ourchanging cities, Massachusetts "'school committeesand administrations are looking back to 1780 whenthe slaves were freed in Massachusetts. At that time,school committees assigned students to districts byrace. In the early 1800s, the Boston School Commit-tee obserited:

The Public Schools of Boston are now liberally andhappily organized with separate schools for the twoprincipal races of children. . . .offering equal opportunityof learning to both without subjecting either to objection-able, distasteful association.'

For years, this situation was allowed to persist inMassachusetts.

Massachusetts teacher trdming institutions and thenew certification regulations acknowledge demo-graphic changes in inner cities and require teachersto be well prepared to teach minority, non-English-speaking and special needs children. Teachers willalso be evaluated on criteria structured around thistraining. Without Federal and State monies forspecial programs, and well prepared, integratedstaff, how will this growing population be served? Inschools or in detention centers, State custodial

3 Catherine E. Walsh Yearbook of Equal Education in Massachu-setts 1979-1980 (Amherst, Mass.: Horace Mann Bond Center forEqual Education, University of Massachusetts, September 1980),p. 6.

3223

institutions, or jails? Over a million children attendschoOi in Massachusetts, and of these, over 100,000are minorities and 500,000 are female.'

Among school personnel, minorities must berepresented and women should be in positions ofpower. Civil rights laws exist because these com-monsense facts are apparent. Compliance, in Massa-chusetts is hindered now for the same reasons thatthwarted my grandfather when he worked as ajanitor in the Worcester Public Schools. His difficul-ties ranged from denial of needed equipment, tohumiliation, to demoralization and to an early death.Job-losers suffer physical and psychOlogieal effectsas well is material loss. k lifetime of discd4agementand job loss robs them of the stamina needed toinitiate legal battles.

Institational racism in Massachusetts :must berecognized and stopped! Civil rights laws must beupheld and compliance must be sought by any andall legal means necessary, not only because it is thelaw but because it is necessary for education.

Separate seniority lists and recall lists designed torestore and retain proportional minority and femaleadministrative employment should be agreed uponby teachers, unions, and management. When cooper-ative effort cannot be secured, the civil rights lawsand the judicial systein must be utilized.

An example of judicial enforcement is the decisionin August 1981 by Federal District Court JudgeAndrew A. Caffrey in seeking a just remedy in theBoston Police and Fire Department layoffs. The cityof Boston had begun to implement massive reduc-tions-in-force for alleged reasons of fiscal austerity.The judge believed that:

. .if this court fails to modify the decree as requested bythe plaintiffs' motion, then a grievous wrong would beproduced by this Court's non-action, i.e., a refusal toamend the remedial order would allow the substantialeradication of all progress made by blacks and Hispanics indepartments since 1970.5

Judge Caffrey therefore enjoined the city fromreducing the percentages of black and Hispanicpolice officers and firefighters.

BETA RecommendationsIn order to ensure that gains made by minority

educators are maintained during reductions-in-force,Federal and State civil rights agencies should:

4 Ibid., p. 4.Castro v. Beecher, no. 70-1220, 74-2982, NAACP v. Beecher. no.

24

1. Examine their regulations and, if necessaty,issue . additional regulations requiring unionsschool committees and administrators to use race-conscious seniority lists and recall procedures toretain proportional minority employment and toreach affffmative action goals. .Nobody is going to protect inorities withoutli

strong Federal and State bacti

lig. Worcester'sschool committee, for example, risked suits bylaying off minority educators because they repre-sented only a small portion of the work force,there was no agency threat to stop funds, it wasaware that no opposition would come from theunion and it could gamble in a social climatewhich appears to support President Reagan'spolicy of cutting back funds.2. Require school systems receiving Federal andState money to adopt policies that preserve oradvance minority representation and affirmativeaction gains and ensure that those gains will not belost by reductions-in-force. .

Additional funding can be an incentive to encour-age compliance. Civil rights laws and affirmativeaction policies lose momentum in a recession.3. Maintain special programs for minorities, sec-ond language, special needs personi and women.Retention is as vital as recruitment. Ridge Garri-ty's order supported the city's desegregation planby requiring minority percentages in the work-force. He stated that "this obligation exists wheth-er the teaching force is expanding or contractingand. . .contractual agreements are expressly sub-ject to this and other court-ordered obligations."4. Promote the use of race-conscious systems. inhiring as well as layoffs.Official policies saying it is appropriate needbacking and support. Relying on court fmdings iscostly and time-consuming.5. Assume the burden of enforcement of civilrights laws and policies in concert with localadministrations.The burden to enforce the law should not beplaced solely upon laid-off minority educators. Itis expensive and physically and psychologicallydraining. The State has access to the facts, and tomethods that individuals and localities may nothave. Victims of injustice are not as effective asState and Fedeial agencies using their authority.

72-3060, United States v. City of Boston, no. 73-269, slip op. at 8(D. Mass. Aug. 7, 1981).

3 3

6. Affirmative ly encourage teacher unions andschool management to include explicit clauses incollective bargaining agreements to preserveand/or advance minority representation in reduc-tion-in-force situations.Work forces must be more fluid and flexible. Theeconomy is not static; therefore jobs will continueto phase in and out.7. Monitor affirmative action plans and minorityteacher representation in RIF situations.Civil rights agencies can not let recession undothe progress of affirmative action.8. Enforce civil rights requirements for retentionof minority educators in RIF situations.Policies are needed to protect minority teacherswhen decreased work forces result for any reason,whether it be declining enrollment, Proposition21/2, or recession. Furthermore, desegregationplans for students are weakened when staff inte-gration is eroded.The March 1981 issue of the BETA Newsletter

contained the following recommendations from theCoalition for Quality Education (CQE), a group ofblack 'educators and community leaders trying toreduce the burden of Proposition 21/2 on minorities:

1. Union contracts: review the system's affirma-tive action plans; write local president for clarifi-cation of the union's position on enforcing affir-mative action provisions; increase minority activi-ty in the local union; become active in theMassachusetts Teachers Association "SOS CrisisPrograms."2. Court strategies: review relevant court cases;like a lawyer; check desegregation orders andprovisions.3. Legislative strategies:. register to vote; encour-age non-educators to write regarding alternative

tax approaches; contact legislators, especiallyblack legislators.4. Local minority staff organization: provideinformation to teachers about organization efforts;coalesce with other minorities; stress qualityeducation, not jobs; document your membership.5. Regulatory strategies: apply Department ofEducation Chapter 636 funds to retention ofminority staff; get on Massachusetts CommissionAgainst Discrimination Advisory Committee;cheek Title VI to see how school systems receiv- ,

hig Federal funds mhst peevent discrimination.6. Other approaches: retirement incentives; job-splitting; obtain grant monies to maintain projects.Among the suggestions for "reducing the burden"

offered by the Coalition for Quality Education andalso noted in the 1977 U.S. Commission on CivilRights report "Last Hired, First Fired" is job-split-ting or work-sharing. BETA does not recommendthis approach and has offered workshops to helpblack educators retrain for other professional, full-time jobs. Job-sharing can only be supported as anoption for those who can afford to share a job. Assomeone who is black, female and head of ahousehold, I can assure you, many black educatorscan not afford to share a job. The way juniorteachers' salaries are currently scaled, two pay-checks are often needed just to maintain one house-hold. Job-sharing should be an option to be 'liedwhen it fits individual needs, but the focus of civilrights efforts should not be on job-splitting. Wide-spread adoption of such practices could backfire onminorities by giving school committees a way toexploit two teachers for the price of one. BETAtherefore has focused on training teachers to qualifyfor lucrative jobs in other fields. Recognizing people-as individuals with individual needs obligates, us tolook at all possible options.

25

8. The Cambridge School Committee and*

the Problem of Layoffs

Henrietta Attie*

Ms. Att les is the jirst black woman to win citywideelection to the Cambridge School Committee. She is acivil rights specialist with the Massachusetts Depart-

-,ment of Education and is a doctoral candidate at the

Harvard School of Education. Ms. Attles was requestedto explain the Cambridge School Committee's efforts toaccommodate affirmative action considerations as itmg coping with the problem of layoff.i.

A serious comMitment to affirmative action by theCambridge School Committee began with the de-mands of black higli school students supported byconcerned black parents. Black Student DemandNo. I, recorded in the April 21, 1970, schoolcommittee 'Minutes stated:

We demand 20 percent black faculty (people on all levels,i.e., teachers, administrators, and counselors); at least halfof these faculty personnel must be hired by September 19,1970 and at least half (anothei 10 percent or more) by1971. We want a Black Community Board established tohelp hire these people.

Subsequently, Superintendent Edward Conleyrecommended thata goal of 20 percent black facultybe set by the school committee to be achieved assoon as possible and that an advisory committee forthe purpose of setting guidelines for their recruit-ment and hiring be established. In 1970, at least 10black teachers were hired as a result or activerecruitment efforts.

The current affirmative action policy of theCambridge school system was adopted in 1976. Thepolicy developed the concept of affumative actionwithin a public school system and describes most ofthe necessary tasks for implementation. It fails,

26

however, to be specifiic in terms of accountabilityand lacks a timetable for implementation. It alsolacks compliance mechanisms.

There are several aspects of the affirmative actionpolicy which to this date have never been imple-mented. For exaMple, the policy requires thatrecords be kept of all minority applicimts and ofminority employees eligible for promotion:

When qualified, affected persons are passed over forpromotion or are not employed, supervisory personnelshould submit written justification of this decision.

Applications should be kept open so that if, in the future,new positions should become available, they can bereviewed and notified.

Affirmative action and salool desegregation gohand in hand. If we ire really serious aboutpreparing all children to survive and succeed in thissociety, there are several things we must do. Wemust fffst provide every child with a sound academ-ic education. We must do this in a context thatallows each child to develop a positive self-conceptand respect for others who are different. Desegrega-tion is necessary to provide students contact withthose who are different.

Another vital element is the presence of rolemodels for all children representing various racialand ethnic backgrounds.

At the time of the final phase of the voluntaryschool desegregation plan, it had become obviousthat Proposition 21/2 might require layoffs of person-nel. Therefore, the following provision was includedin the plan:

All staffmg categories (including, but not limited to \

teachers, administrators, secretaries, etc.) within the Cam-

35

>7,

Table 2Cambridg, Massachusetts, Channel Systems for School DepartmentLayoffs

Current Percentageof Minorities inChannel

Number ofMinorities

Number ofPersons inPositions

01 K-3 11,36 10 8802 Grade 4-8 10.08 13 12903 Webster Cap School 20.00 3 1504 King/Tobin/Open Magnet 38.46 5 1505 Follow Through 18,18 3 1506 Home Economics 0 0 1

07 Industrial Arts 28.57 2 708 Physical Education' 18.8 4 2209 Art 6.25 1 1610 Music 6.25 1 1611 Specific Education 8.57 9 105

Different Proj. No-. andDifferent Cert. Required ,

12 Occupational Ed. (Shop) 7.1 1 1413 Coop Op. Int. 0 415 Dramatic Arts 0 1

16 Library Teachers , 22.22 2 917 Reading (H.S.) 0 518 Student services & Guidance 10.53 2 1919 Pilot 42.86 . 3 720 Health & Safety 0 . 421 Lang. Arts-English .04 1 2522 Math 9.5 2 2123 Science 6.9 2 2924 Social Sciences 16.67 3 1825 Modern Foreign Language 0 1526 Business Education 26 2 1027 Bilingual Education 23.08 9 39

Source: Henrietta Attles, Member, Cambridge School Committee

36

bridge public schools shall be hired so as to. reflect theracial composition of the general population of Cam,-bridge.

Since this goal has not yet been achieved, nor has thegoals, set in 1970, of a 20 percent black faculty, this policymust become a priority consideration in all personneldecisions. Accordingly, even in the face of fiscal con-straints, no school, department or program can have fewerqualified minority staff in each category than they have atpresent, as a result of layoff, unless that school, departmentor program can meet these standards.

When layoffs became imminent, the CambridgeTeachers Association demanded that the layoffsfollow strict seniority. This would have meant thatthe minority representation in the work force of 11percent would have been drastically reduced.

However, the school committee and the superin-tendent of schools developed a layoff strategy thatthey felt to be consistent with the terms of the unioncontract. The policy adopted provided that:

No tenured teacher shall be laid off as a result ofreduction-in-force if that tenured teacher is qualified for aposition occupied by a teacher with less seniority in theCambridge school system.

The key to the conflict which developed betweenthe teachers association and the school committee,as a result of the adoption of that policy, is thedefmition of-oqualified." "The union takes the posi-tion that certificatitm equals qualification. Theschool committee takes the position that beingqualified goes beyond being certified. According tothe school committee:

"Qualified". . .means able to meet a minimum set ofstandards which in the judgment of the school committeeis required before a person can teach a given course or agroup can teach the courses in a given subject area orprogram.

Experimental and affective characteristics may, And in factdo, arise out of Sobial and ethnic experience (as contrastedwith clatsroom learning) particularly including the experi-ence of being a minority in a dominant culture. Allstudents need to see and hear a number of role modelswith which they can identify if they are to develop theirfull potential.

In order to implement layoffs based on retainingthe most "senior qualified" persons for each position,school department personnel were listed in variouschannels. Under strict seniority, the minority staffwoulg have been reduced to approximately 3 per-cent. Using the channel system, minority staff willconstitute 14 percent after layoffs. Every permanentminority teacher in channels 1 and 2 has beenmaintained for the 1981-82 school, year.

The channels utilized by the Cambridge SchoolCommittee are detailed in table 2.

The Cambridge School Committee maintains that'the question of qtialifications goes beyond.taffirma-five action to the question of the power of a schoolsystem to" define qualifications; this authOrity ex-tends, under the school committee's interpretation ofits power under State law, to the setting of qualifica-tionsfor layoff.

The minority teachers,and staff have intervened inthe Cambridge Teachers Association (CTA) suitagainst the school committee, contending that eventhe channel system does not go far enough inremedying past discriminatory practices.

An interracial parent group has also intervened inthe CTA suit charging that their children are beingcheated of the kind of role models necessary for amulticultural/multiethnic education.

Since the Cambridge School Committee is pio-neering in this approach, there is no legal precedent.The issue before the court being raised by the CTAis, "Is this a violation of contract?" We believe thatit is not and are confident that the court will agree.

28 3 /

Gwendolyn M. Blackburn

Ms. Blackburn is President of the New EnglandAssociation of Black Educators and Chailperson of theCoalition for Quality Education,. In addition, she is thelupervisor of multicultural education for the MedfordPublic Schools. ,

On March 23, 1981, I appeared before the StateBoard of Education in support of the CambridgeSchool Committee's plan for the retention of minori-ty educators. On that occasion I stated my belief thatblack teachers in the school make education morerelevant for both black and white students. Theexistence of black teachers provides vital life experi-ences 'without which both majority and minoritychildren are culturally disadvantaged. Contact andcontinuous interaction with black teachers aid inproducing human beings who are more able tocooperatively confront and mutually resolve crucialsocial issues. In simpler terms, integrated staff andintegrated education begin to prephre our childrenfor a multiracial comniunity, nation, and world. Iconcluded my remarks before the board of educa-tion pleading that the board not allow the hands oftime to be turned back.

Prior to the past decade, there was intentionaldiscrimination in the hiring practices in schoolsystems. Unions have not been representing theirdues-paying minorities, who through no fault oftheir own came into the system last. An affirmativeaction clause should have been included in laboragreements between teachers and school systems atthe bargaining table. This oversight, if upheld, will

0

deal an unfair, devastating blOw to majority stu-dents, who are left to question the capabilities ofblack adults; to minority students, who are leftwithout role models; and to an atmosphere ripe formyth-ridden, stereotypical education, We Cannot inall good conscience cripple our children this way! .

The Coalition for Quality Education's beliefs areconsistent with those stated above. Althdugh collec-tive bargaining has never addressed the issue of thelack of minorities or the delay in hiring themexcept for a few school systemsthe burden oflayoffs should be dealt with in an equitable fashion.

School systems need minority educators. Whiteyoungsters need minority educators and minorityyoungsters need role models.

Public education is being devastated by Proposi-tion 21/2 in Massachusetts, and by cuts in Federaleducation funds nationally. Poor youngsters, minori-ty youngsters, and low- and middle-income young-sters are the ones who attend and depend on public'schools.

Do I want to see white educators lose their jobs?Of course notI do not want to see anyone lose hisor her job. Do I want to see black and whiteeducators pitted against one another? Of course not,but by the same.token, I do not like knowing thatmany systems in the Commonwealth are currentlypharged with prima facie denial Why are so manyminority students in Special Education? Why don'tthey get out of Special Education once being placedthere? Is it a problem of not relating? Thesequestions Ind many others all have a very basicanswer: Keep minority educators on the job.

3829

'the Coalition understands that in Springfield, alltenured teachers will be recalled this year; inBrockton, all the minority teachers have been calledback for this school year; and in Worcester, JudgeHal !bey ruled in July that the Educational Associa- '

"of Worcester acted "arbitrarily and discrimina-to-ray" toward minority tenured teachers who werelaid off. He further- stated that "the union totallyignored the affirmative action aspect of the reduc-tion-in-force (RIF) clause." This decision was thefirst ray of hope that someone out there still caredabout truth, fairness andjustice.

Cambridge teachers and parents are also currentlyin court on a suit claiming the School committee isrefusing to implement, its affirmative action goal ofemploying 20 percent minority teachers, which wasestablished in 1970. They further allege discrimina-tory practices by the Cambridge Teachers Msocia-tion for unfair representation of its minority mem-bers. In Medford, my Sehool system, originally itappeared that only 3 or 4 of the 16 minorities wouldbe retained, but by using department seniority ratherthan systemwide seniority as the layoff criteriononly 2 tenured and 3 non-tenured minority teacherswere laid off.

According to the October 1980 State Departmentof Education Student Census, 49 percent of thestudents in Springfield were minorities; 34 percent inCambridge; 13 percent in. Brockton; 15 percent inWorcester; and 4 percent in Medford. In Boston, 64percent of the student body was minority. Shouldwe not have at least proportionate nunibers ofminority educators in these school systems?

Minority teachers should not have to go to court.It is costly and degrading to have to fight for

* representation by their collective bargaining repre-sentative.

30

The Coalition for Quality Education is well awarethat the present conservative mood of the Countryhas dealt a deadly blow to most programs and fundsthat would directly assist minorities and the poor.We are cognizant of the fact that gains made duringthe civil rights movement are being reduced to a1960s apparition.

It is because of this that we black educators joinedforces statewide to support at least one specific goalfor the immediate future-7to push for affiimativeaction language in every union contract to benegotiated. As dues-paYing members of teachers4,_associations who were historically suhjected todiscrimination in hiring practices, we believe' thatunion leadership is obliged to address this issUe withmeaningful affirmative action language. For exam-ple, the following language has been suggested forinclusion in the' agreement between the teachers andthe school committee in Medford: ,

In implementing the provisions of this article reOrdingreduction-in-force, the school committee shall reserve theright to retain a mitiority meMber of the bargaining unitWho has been placed on tenure prior to June 30, regardlessof seniority, 8 part of its affirmative actiOn prograni.

We minority educators need whatever help theU.S. Comniission oh Civil Rights can offer. Weminority educators once again feel oppressed eventhough, in many cases, a reprieve has been given forthis school_ year. We minority educators fear for thesafety of quality education for all youngsters. How-ever, we minority educators will not be troddendown. We will not, cannot, rest, for there is yetmore to come and- we must now work towardprevention. We will stand shoulder to shciulderacross this Commonwealth, across New England,and across the Nation and we will fight for the rightto retain onr rightful places in the schoolhouses ofthis land.

39

10. Possibilities for Retaining MinorityStaff in Positions Not Covered by,Coitective Bargaining

ames R. Case

DA Case is the Acting Associate Commissioner of thenDivision of Curriculum and Instruction for the Massa-chusetts Department of Education, lie previouslydireeted the Institute for Learning and Teaching at-theUniversity of Massachusetta

4).

How does a school system maintain sOme repre-sentation of minority staff in the face of reductions instaff; assuming that the contract with the teachers is,based purely on!. seniority (as is the case with most

-contracts) and assuming that the layoffs are anecessity?

This is the question I was asked to address, andnot the question of whether layoffs should or shouldnot occur, or whether there are legal rights to bepursued which could protect some jobs for minori-ties. I will deal with the actual situation of what todo to retain Minority representation when staff mustbe reduced.

The first point to be made is that there is verylittle knowledge available to anyone attempting toanswer the question. There are three reasons for thepaucity of information on this subject. First, manyschool systems in Massachusetts have no minority'staff members 'or very few minority staff members.Second, in a majority of Massachusetts schoolsystems, natural attrition has taken care of thereduction-in-force up until this year. Finally, neither,the State Department of Education nor any otherorganization collects data on the race of the teacherswho are-laid off. The basic answer to the question"What cah a school system do to maintain someminority staff representation?" is little, very little.

-The contract with the teachers association or unionis a powerfid contact. It invariably has seniority as asole or major criterion in , reductioii-in-force, and itcovers most of the profesgional positions in theschool system. Thus, school administrators and theschool committee memberi are left with very littleleeway in which to move.

As most people are no doubt aware, personnelcosta in a school system constitute up to 90 percentof the budget. The amount of money that a schooladministration has for consultants or for roles notcovered in the teachers contract is very limited.Nonetheless, there are some things that a schoolsystem can do to retain some minority staff in alayoff situation.

First of all, the school administration should notassume that the dnion or teachers association isunwilling to negotiate over theie issues. There is Stendency to look on reductions-in=force as a totallyadversarial situation between they union and theschool committee. It may turn out to be so in somecities. It is very difficult for a union or association todo..,this, but it may turn out that peaceful negotiationcan occur between ihe union an'd school systemabout positions for minority staff. SebOnd, a school-system can reserve same oor all of the few non-contractual, locally -funded positions that it has inthis system for minorities. Such positions wouldrange from community relations coordinator toassistant to the superintendent, or from aides ofvarious kinds to grants manager. The largeiret.eschool system, the more such positions w' beavailable. Unfortunately, the larger the ichool sys-tem the greater the likelihood that those positions,

4031

too, would be covered by a separate collectivebargaining agreement.

Nonetheless there do remain positions in a schoolsystem that the school committee and school admin-istration have some discretion in filling, and theyshould utilize that flexibility to retain minorityrepresentation. A similar situition exists regardingState or federally funded positions within the schoolsystems.,There are various projects in many schoolsystems .(such as ESEA projects), which are notcovered by the teachers' contract. It might bepossible to staff these programs with minorityteachers who otherwise would be laid oft InBoston, Springfield, and a few other cities, there areState funded Chapter 636 projects. In Roston andsome other cities, there are bilingual staff who workwith parents in the community; that is, non-instruc-tional, community liaison, bilingual staff. There aresome possibilities here if the school system is lookingfor ways to use State and Federal Money 'to createjobs for minority staff outside of jobs covered by theteachers' contract. In fact, in some of those prbjectsthere is pressure from the State or by the FederalgovernMent to do so. -

32

V

Finally, school systems do 'contract out for some. services. Many school siptem, s, for example, will nothire a school ,psychologist on staff, but contract forpsychological services. They contract for testers, forstati§ticians, and 'mdst obviously, for substitutes.Those contractual services are not covered bycollective bargaining, and thus can be filled at thediscretion of the school, emiimittee. In some.schoolsystems, that can be.a sizable number of...positions.Note that in- all those instancei that are listed here,the school committee and the school administrationmust be morelhan willing, indeed, must be eager, todo something. However, that condition is one whichapparently does not exist in a large number ofsystems in Massachusetts.

I conclude, therefore, that once layoffs haveoccurred, and once most of the minority staff -hasbeen included in those layoffs, there are only somevery minor, things that the school system can do toimprove that situation. None of them begins to takethe place of having regular minority instructionalstaff in a school, which brings this, full circle, backto the questions of strong affirmative action lan-guage in the contract and the possibility of legalenforcement of the rights of minority teachers.

4 1

a.

IL Preparing Teachers for Career change

RS

Ilene WON= and CherYKramer

Ma Wolfman and Ms. Kramer are consuliants.whodesign .programs on career growth and staff develop-

, ment for school systems and educational' association&Both were employed by the Framingham SchoolDepartment for ieveral year& This paper addresses theprocess of changing,employment fields and describesFramingham's program to assist teachers in transitionto other kinds of work

The large number of teachers recently unem-ployed in Massachusetts is the result of decliningenrollment, school closings and the passage ofProposition 21/2. This paper will discuss the chang-ing career needs of many educators, outline thecareer change process and briefly describe onetown's program to deal with this issue.

FOrced Career ChangeThe impact of Proposition 21/2 is being felt

throughout the State as school systems and otherpublicly,supported agencies are being forced to layoff employees. Making decisions to cut back staff isprobably one of the loneliest, most difficult choicesany inanaier or adrhinistrator .must face. To furthercomplicate matters, every method for establishingthose who will be terminated has its strengths andweaknesses. Due to the extreme difficulty of imple-menting a layoff system based primarily on evalu-ation, many school systems have opted for a proce-dure determined largely by ones length of service,or seniority. As a result, in many cases those tobecome unemployed have been the younger and/orminoriti staff members. Not only does this reverse

42

the positive headway made by minorities into theworkplace, but it also eliminates the unique enthusi-asm and dedication brought to the teaching profes-sion by those who are young and idealistic.

-

Voluntary Career Change"-In addition to those educators who fmd them-

selves forced into a career diange, many teachersfmd they are interested in voluntarily Seeking workin other fields. Closing Sahools and restricted bud-gets have meant feWer opportunities for advance-ment. The chance to move from the classroom intoadministration has become practically nil in manysystems. Even horizontal career Moves have becomemore difficult to achieve as other cities and townsexperience similar xutbacks. With fewer buildings tobe staffed, there are fewer opportunities-to move andmix with people in another environment. As a result,in any school system, the staff has grown more fixedand constant.

Teaching DiscontentFor many, the lack of mobility and advancement

creates frustration. It is interesting to note thatclassroom teachers have exactly.the same degree ofresponsibilitY for a group of youngsters on their firstday of teaching as they do the day they retire.Oespite the diversity of each new group of children,the lack of increasing responsibility is a major sourceof career frustration. Ask most people, "Would youstill like to be doing your first job?" and you'll get anenthusiastic "no." Teachers are expected to bedifferent.

33

Several other factors 'contribute further to a ladsof fulfillment for educators. Many entered theprofession seeking job security. Even during thedepression, teachers worked. The new realities haveleft many educatorS disillusioned.

Just as-teaching is no longer the bastion of careersecurity, home and family life are no longer.the onlyfocal points of adult life. Women are now recogniz-,ing the need and desire to work throughout theiradult lives and fmd it is no longer praciical to dropin and out of the employment market. the impact ofinflation has encouraged married as well as singlewomen to remain employed. Having little, if any,opportunity for diversity and advancement, causesteaching to become nn unattractive long-term careeroption for many women.

In addition to few opportunities for promotion oradvancement, there is little but self-initiative tomotivate performance. Incentive pay systems areusually shunned by organized workers and salariesare fixed to a dollar amount and subject to publicscrutinY. Despite the gains which significantly raisededucators' pay in the .1970s, salaries will not keeppace with-inflation in the 1980s. Those who benefit-ed from step or level increments plus cost bf livingraises will see their actual buying power erode asthey reach their system's maximum salary.

Lack of mobity, advanceMent, security, diversi-ty, and buying power will contribute to the unpopu-larity of the educational profession. Add to this listthe lack of community support, increasing physicaland .(%erbal abuse by students, pervasive tensenessand uncertainty. An unappealing work situationresults for many. Some seek new alternatives.

Job Search ProcessMany difficult issues are faced by those who

either choose to or must make a career change.Educators are blinded by limited awarenesS'bf otherfields of work. After years spent "going to school"they continue to "go to school" as their source ofemployment. Capable of learning, those seeking acareer change niust invest time and energy ingaining knowledge about themselves and other areasof work Ant as they spent lime preparing forpositions in education. Several areas must be exp-lored in depth.

To begin a career change, enhanced self-aware-ness needs to be developed through personal skillanalyses. It is important to understand the complexi-ty of skills which go into even the most routine

34

tasks. For example, lesson planning is a constantresponsibility for a teacher. In order to develop a setof plans, it is necessary to analyze long-, medium-,and short-range' goals and otljectives; priorities aredetermined; tasksi are broken into small, orderedsegments; materials are utilized and co6rdinated;individual needs are identified; time constraints areobserved; evaluative measures are developed. Otherfields of work require utilization of these skill§ toaccomplish tasks other than lesson plans. Educatorsneed to better analyze the jobs they do. .

In addition, to skills analysis, values need to beexplored. Examining issues which suiratmd con-cerns of security, money, freedom, independence,initiative, assertiveness, confidence, and respect arecrifical: Value systems change with time and anindividual's needs in one decade may differ inanother. It is beneficial to reflect on such :questionsas: Why did I choose this profession? How do I feelabout my work today? Would I choose this profes-sion if I were starting again? What would I like tochange? 'In fact, though these questions must beanswered by those who make a career change, manyeducators explore these issues and gain a renewedcommitment to stay in the profession.

Career changers need to learn about work in othertypes of organizations. They need to be I s rovin-cial about their interests and_shojWbegin t readnewspapers, journals, periodicals, and books toabout developments in other fields. They shoubecome aware of the vast array of industries andbusinesses which comprise our economy by talkingwith people, observing, and taking courses.

Armed with new knowledge about work, there isthen the need to learn how to fmd a job. It isimportant to be able to ask for help from others.Having the confidence to tell people of your interest(or need) to fmd other work, can be difficult.However, this is imperative for an effective search.If reports are accurate that 80 percent of jobs gounadvertised, it is essential to talk with people toknow what is going on in their company ororganization.

Finally, given an enhanced understanding of hisor her skills and an increasing awareness of new jobinterests, an individual can then begin to prepare forinterviews and write resumes.

Facing FactsThe job search process is challenging for anyone

and particularly difficult for those seeking a new

43

career as opposed to just a new job. Several factsneed to be recognized,in order tp achieVe success.

First, finding a new job takes longer than onewould imagine, Six to 18 months of hard work andcommitment is a realistic period of time for a jobsearch. It is necessary to know this in order to planappropriately for the titne one will be unemployedand without wages. It also helps minimize thedepression which can result from placing unrealisticexpectations and time pressures on One'S self.

Secondly, those who are involuntarily unem-ployed will likely progress through vitrious siages ofdepression ranging from disbelief to anger to eventu-al acceptance. Feeling resistant and resentful ofimposed change also needs to be recognized asnatural and-understandable. With time, these feelingscan be reconciled and the reality of the situation canbe accepted. Some people choose to join formalsupport groups or form small teams of three to fivepeople who can help one another over the hurdles ofa job search.

Third, job-seekers should not be overly romanticabout comparing their work environment in a schoolsystem with that in other organizations. It is unreal-istic to think that° interruptions, time pressures,excessive and tiresome meetings, ;wise and paper-work do not exist everywhere. They dol Knowingthis can help maintain a perspective since career orjob change is never a panacea.

Fourth, teachers as well as other career changersmust begin to think of their careers in more thanone-year segments. Consideration must be kyen tochanges which will occur three and five years intothe future. This is particularly acute in consideringsalary issues. If a cut in pay must be made, how sooninto the future is one likely to regain his or herteaChing salary? This can easily be done by project-ing typical teaching salary increases versus'businessraises.

Fifth, business people and educators alike holdmany misconceived beliefs about the other's field ofwork. Breaking down attitudinal barriers requiresboth groups to develop willingness to ask questions,accept new ideas and readjust previously heldconcepts. Fortunately, as individuals are successfulin the job transition they will serve as models toother educators as well as to their new employers.

Sixth, each individual must feel a commitment tochange careers in order to be successful. This isnecessary because the process is difficult and it is tooeasy to give up without a dedicated commitment to

change. Also, experienced interviewers will readilyrecognize ambivalence and will use this to screenout a job candidate. From the employer's point ofview there are several risks (money, time, quality,reputation, efficiency) in hiring someone whoseexperience is not noticeably similar to the job inquestion. The interviewee's attitude will either add IPto or diminish the risk perceived by the employer.Interestingly, those people hoping to be recalled oron a leave of absence to explore an alternative careermay exhibit a noncommital attitude which hinderstheir interview success.

Last, it is trite but true that "No one gives jobsaway." Given the competition created by manysimilarly trained individuals seeking new jobs, eachperson will have to prove his or her worth to aprospective employer. l'his is a difficult and lonelyprocess which ultimately requires a person to con-vince someone he or she can do the jOb.

The Framingham Retraining CommitteeModel

The Framingham Retraining Committee wasformed in 1978 as a joint venture of the schooladministration and the teachers association to meetthe career needs of a school department staff facingbudgetary° and personnel cut-backs. The ongoingprograms address the needs of those people forcedfo make a career change as well as those voluntarilyseeking .new work alternatives.

The program's purpose is to address the realistichuman concerns that arise from projected layoffs.To accomplish this, information and assistance isprovided in an effort to better prepare individualsfor making a change.

Since budget cutbacks and school closings affectall staff members, programs and materials are madeavailable to all employees. An advisory board withrepresentatives from the teaching as well as non-teaching groups meets monthly to share ideas andplan psograins.

A variety of sources of information and support-ive services are utilized to prepare staff for careerchanges and develop an understanding of the careergrowth process. This includes a newsletter which ispublished every four to six weeks and provides dataon in-house programs and resources available withinthe community.

Another major component of the program is anextensive series of workshops dealing with topicssuch as Skills Assessment, Personal Job Needs

35

4 4

Assessment, Assertiveness Training, Creative Prob.lem Solving, An Introduction to Computers, Re-sume Writing, Interviewing, Techniques of Re-searching a Company and Organizing a Job Search.

Also, representatives from business and industryare invited to talk about their work, their companyand the industry in which it fits. Other programshave included panels of former educators, individualcounseling, support groups, and tours of localcompanies.

The variety and extensiveness of the programofferings enables people to choose those segmentswhich they think will be most suitable to theirparticular needs. Framingham's program has beenone town's attempt to cope creatively with thedifficult and sensitive task of reducing staff size. Its

36

success has been based on the unanimous support ofall groups involved and as such has served as amodel taother communities.

In conclusion, it is fortunate that Massachusettshas a diversified work environment which is enviedby many of its .neighboring states, However, theprofessionally trained skills of educators do notreadily match the employer needs of this businessand industrial base. Finding jobs for the thousands oflaid-off teachers is a problem with many long-termimplications which will remain an enigma for yearsto come. Every effort which can help ease thechange process should be seriously analyzed andimplemented if feasible. This will require the creativ:-ity and cooperation of residents and workersthroughout the Commonwealth.

4 5UtS. GOVERNMENT MINTING OFFICE : 1982 0 - 377-374