A. Equal Protection
The Equal Protection Clause to the Fourteenth Amendment provides: "Nor shall any State . . . deny to any person within its jurisdiction the equal protection of the laws." Plaintiffs do not dispute that the District's use of the 75%/125% quota to remedy past discrimination in the form of a faculty racial imbalance was lawful and proper under the standards imposed by the Equal Protection Clause, because of the OCR's administrative finding of racial imbalance. See Regents of University of California v. Bakke, supra, 438 U.S. at 307-308 (once judicial, legislative or administrative findings of constitutional or statutory violations have been made, governmental interest in preferring members of injured groups at the expense of others is substantial). Plaintiffs contend, however, that the continuance of the 75%/125% quota system is unconstitutional because it is permanent rather than temporary and because it serves to maintain racial balance rather than to remedy past discrimination.
Since the quota system classifies on the basis of race, the District has the burden of showing that the quota system passes muster under the Fourteenth Amendment. Regents of University of California v. Bakke, supra. Unfortunately, the Bakke Court did not make clear whether the appropriate standard of review for an affirmative action racial quota is a strict scrutiny or a "middle tier" analysis. Nonetheless, the Court finds that the District's race conscious quota fails to pass muster under either test.
In the present case, the District argues that continued use of the 75%/125% standard shelters the important governmental objective of maintaining racially balanced faculties and schools, thus enhancing the educational environment of the students. Then, relying on its own conclusion that absent the quota system the racial composition of its faculties would revert to prior levels of segregation, the District argues that it has met its burden of showing that continuance of the quota system is substantially related to achievement of that objective. The Court cannot agree. Although the governmental objective of maintaining desegregated school faculties in order to enhance the educational opportunities of the school children is indeed a legitimate and important objective, the District has failed to show that the quota is substantially related to the achievement of that objective.
First, the District has failed to show through empirical evidence that the system will revert back to prior levels of segregation if the quota system is not maintained. Sheer speculation as to what will happen if the quota system is lifted and nondiscriminatory policies in the hiring, firing and assignment of teachers are used, will not support the continuance of the racial quota. Second, the District has failed to show that other nondiscriminatory alternatives for maintaining faculty integration cannot be applied.
Generally, a racial quota is a temporary measure constructed both to remedy past discrimination and to achieve the desired result of either equality or desegregation. See, e.g., United Steel Workers of America v. Weber, supra; Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S. Ct. 1267, 28 L. Ed. 2d 554 (1971). All of the cases cited by the District in support of the racial quota are distinguishable from the present facts. In each of those cases, the quota system was used to remedy past discrimination and not to maintain racial balance. See, e.g., Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S. Ct. 1267, 28 L. Ed. 2d 554 (1971); Caulfield v. Board of Education of City of New York, 632 F.2d 999 (2d Cir. 1980); Zaslawsky v. Board of Education of Los Angeles City Unified School District, 610 F.2d 661 (9th Cir. 1979). See also Regents of University of California v. Bakke, supra, 438 U.S. at 300 n.39 (dictum). It is of no moment that the simple expectation of being assigned to a particular school within the school system is not a property interest protected under the Constitution. See Caulfield v. Board of Education of City of New York, supra, 632 F.2d at 1006-1007. ("The simple expectation of being assigned to a particular school within the system is not, then, a right protected under Title VI, Title IX or the Constitution.") Even assuming that this be true, each individual still has the constitutional right under the equal protection guarantee to be protected from distinctions based solely on race in the absence of a substantial state interest in support of the racial classification. Regents of University of California v. Bakke, supra, 438 U.S. at 289-291. This right constitutes a liberty interest under the Equal Protection Clause of the Fourteenth Amendment based on the right to racial equality. See Regents of University of California v. Bakke, supra, 438 U.S. at 294.
B. Title VII
Section 703(a) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a) provides:
(a) It shall be an unlawful employment practice for an employer --
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or