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CRS86545EPWpage10
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n_.
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D CRSF15h allowed by the courts.‘ Pupils have often been exempted from school requires , ments that impinge on their religious beliefs.i Further, under provisions of . "The Equal Access Act." title VIII of P.L. 98-377, public secondary schools in districts receiving Federal assistance must provide equal access to school 0 facilities by student religious groups during non
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'3
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of a district's Federal funding was at stake if it were found not to be in compliance with the title. 2/ For a review of current legislative action, see U.S. Library of Congress. Congressional Research Service. Emergency School Aid Act: Deseg- regation Aid Considered by the 98th Congress. Issue Brief No. lB83094, by Jim Stedman, May 31, 1983 (updated regularly). Washington, 1983. Litigation
CRS83557EPWpage09
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of the Civil Rights Act of 1964 (prohibiting discrimination on the basis of race, color or national origin in federally-financed programs), or a voluntary effort to desegregate. CONSOLIDATION OF ESAA 0 Under provisions of chapter 2 of the Education Consolidation and Improve- ment Act (ECIA) of 1981 (title V, subtitle D of the Omnibus Budget Reconcilia- - tion Act of l98l, P.L. 97-35), the authorizations
CRS83557EPWpage05
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discretionary authority by the Commissioner of Education). Effective October 1, 1982, ESAA was repealed and its various programs included among the activities that local educational agencies can carry out with funds provided under a new Federal education block grant. This paper provides a brief discus- sion of ESAA and the impact its consolidation with other Eederal education programs in the block grant has
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and FY 1982 than in the previous period. Indeed, for 8 of the 13 dis- tricts in the sample with ESAA awards in excess of $1 million, their FY 1981 ESAA funding exceeded their entire chapter 2 allocation for FY 1982. pTable 1, below, is derived from the Jung and Bartell study and shows the following data for each of their sample districts-FY 1981 ESAA funding, FY 1982 chapter 2 funding, percent change
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CRS85661Apage17
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whites after that); United States v. City of Chicago, 663 F.2d 1354 (7th Cir. 1981) (en banc) (40% minority quota for promotions in Chicago police department reduced to 25% since nondiscriminatory exam yielded 25.8% minority group eligibility roster; original quota was unfair to non-minorities); EEOC v. AT&T Co., 556 F.2d 167 (3d Cir. 1977), cert. denied 433 u.s. 915 (1978) (pro- motion goals
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and Mail Deliverers' Union, 514 F.2d 767, 772-74 (2d Cir., 1975), EEOC v. American Tel. and Tel. Co., 556 F.2d 167, 177-80 (3d Cir. 1977), or dismiss the debate that "goals" are legal and "quotas" are illegal as7a "semantic dispute." United States v. City of Miami, 614 F.2d l322,.l335 n. 26 (5th Cir. 1980). See, also, Regents of the Univ. of Cal, V. Bakke, 438 U.S. 265
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. In the Fullilove case, however, the Court upheld a provision in the Public Works Employment Act of 1977 that required State or local governments to use 10% of Federal funds granted for public works contracts to procure services or sup- plies from businesses owned or controlled by statutorily defined minority groups. _The 6 to 3 decision removes any doubts regarding the power of Con- 'gress to mandate
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it discriminates against women and minorities. Second, and §§/ Janowiak v. City of South Bend, 36 FEP Cases 737 (7th Cir. 1984). 2g] 26 FEP Gases 114 (S.D. Ohio 1980). §§/ Cooper & Sobel, "Seniority and Testing Under Fair Employment Laws: A General Approach to Objective Criteria of Hiring and Promotion." 82 Harv. L. Rev. 1598, 1601, fn. 2 (1969).
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CRS-35 to Stotts, it chose to vacate the judgment below and remand for consideration of mootness. By insteads grounding its ruling on a percieved conflict be; tween the decree and both § 703(h), the seniority provision, and the more general remedial limits of § 706(g), Stotts implied that a district court lcannot enter a consent decree that contains make-whole relief unless thel plaintiffs prove actual victim status. Furthermore, although the Court did not repudiate existing circuit court decisions permitting affirmativef action asia remedy in litigated cases, Stotts may have implications'here as well since the majority rationale is not limited by its terms to consent, decree modifications. _lndeed, the consideration on which the Court based its holding 4- the putative conflict between the mandated relief and theri proof requirements of § 706(g) -— may be no less central in the litigation context. POST STOTTS LITIGATION The.courts to rule on the implications of Stotts for the preferential treatment of minorities in layoff situations, or for affirmative action more generally, have not borne.out this dramatic potential, however. For the most part, these courts have found Stotts inapplicable in.a variety of situations, as where seniority considerations were not at issue, or where the departure ._:from_the seniority based layoff procedures favoring minorities had been the subject‘of collective bargaining between the employer and the unions. Another - relevant distinction has been found where, unlike Stotts, the affirmative action plan was voluntarily adopted by the employer and not the product of judicial compulsion. Since virtually all the post—Stott cases have involved public employers, several courts have found constitutional rather than stat~
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, according to the Commission, each identified discriminatee is entitled to "full remedial, correct-A ive, and preventative relief,’ including backpay and an "unconditional" offer 0 .22! .'I_.<_1.-. 2§/ "Fire Department's Plan Called Invalid," Wash. Post p. Cl, 5 (March 13, 1985). A A 21/ ...I.é.~»
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bar to employment of white males and were less than those endorsed by Weber); Bratton v. City of Detroit, 704 F.2d 878 (6th Cir. 1983) (city promotion plan with goal of 50/50 black-white ratio in lieutenant corps and separate promotion lists approved in view of extremely low black participation on police force). g'£gf ,34,F.E,P, Cases 1065 (2d Cir._l984),
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with two different forms of seniority. The earliest cases involved the use of departmental seniority, or length of service within a department, by an employer who prior to the 1964 Act had overtly segregated black em- ployees in the lowest paying and least desirable jobs. With the advent of “Title VII the employer would remove these overt restrictions on job assign- ment and transfer and substitute
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workers in the . . . plant approximates the percentage of blacks in the local labor force. lg] Weber, therefore, permits race conscious affirmative action which may adversely _ affect the interests of white workers when-such measures are necessary to re-" i"dress "manifest racial imbalance in traditionally segregated job categories."_l 1;] 443 u.s. at 208. 15/ 443 u.s, at 208-9.

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