The opinion
MAROVITZ, District Judge
(concurring) :
I concur in all respects to Chief Judge Swygert’s opinion as it refers to the procedural issues of jurisdiction and stand *1090 ing and the substantive issue of the compatability of the challenged state statute with the federal supremacy clause. I also concur with his holding on the equal protection issue, but feel that a further exploration of that aspect of the case might be appropriate.
The Fourteenth Amendment prohibits any state from denying “the equal protection of the laws” to “any person within its jurisdiction * * The original understanding of the scope and extent of the equal protection guarantee was never very clear. Developments in the Law — Equal Protection, 82 Harv.L. Rev. 1065, 1068-69 (1969). Over a century of experience with the principle has not resulted in either a definitive characterization of what the Constitution seeks to protect equally or even a firm standard to assist the judiciary in dealing with the many and varied problems which are presented to it. The instant case, for example, is made all the more difficult because one side wants the facts weighed under a “compelling state interest” test, while the other side has urged the “reasonable classification” guideline.
Under our Constitution, the states are not prohibited from distinguishing between or classifying citizens for different treatment, but, traditionally, “the classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.” F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 , 40 S.Ct. 560, 561 , 64 L.Ed. 989 (1920); accord, Dandridge v. Williams, 397 U.S. 471 , 90 S.Ct. 1153 , 25 L.Ed.2d 491 (April 6, 1970); Avery v. Midland, 390 U.S. 474, 484 , 88 S.Ct. 1114 , 20 L.Ed.2d 45 (1968). There is no dispute about the fact that the Illinois statute, Ill.Rev.Stat. Ch. 23, § 4-1.1, makes a clear distinction between one person, age eighteen through twenty attending a vocational or technical training school and another person in the same age bracket and financial condition with the same family background, but who attends a college or university. The question is whether or not the different treatment afforded these two persons is grounded on a reasonable or rational basis and, therefore, constitutional or is so arbitrary and invidious as to be unconstitutional.
Essentially, the Illinois law is designed to provide financial support to economically deprived youth in order to permit them to become employable and self-sufficient. I have no difficulty at all with the statute so far as it permits a person otherwise qualified and over 18 to receive financial support until that person completes his or her secondary school education. The importance of a high school diploma to a job seeker cannot be overestimated and the equal protection clause is not violated when a state supports some persons past the demarcation line (the eighteenth birthday) if that person needs extra time in order to complete the high school program. See Developments in the Law — Equal Protection, 82 Harv.L.Rev. 1065, 1166-69 (1969). Nor am I much troubled by vocational training which is in lieu of high school education.
In my view, however, a serious difficulty arises when the statutory discrimination operates at the post-high school level. The state has asserted that persons enrolled in vocational training programs are intellectually inferior to those in college, but there is no documentation before us to indicate that such is uniformally or even generally true. Conversely it may, arguably, be said'that there are some persons in college who lack the physical aptitude, coordination, and mechanical ability of vocational students. For instance, a person may be suited by talent and temperament to be an excellent poet or attorney, but not an automobile mechanic or television repairman. In this sense, he could only become economically self-sufficient with a college education, just, as the state contends, another person can only become employable through advanced vocational training.
*1091 If all factors in the national or local employment situation were equal, that is, if incentives to learn white and blue collar trades and the supply and demand for professional and labor positions were the same, the reasonable basis for the statutory distinction would not be apparent. However, the skills of manual laborers are in short supply. See “Why manual jobs go begging,” Chicago Daily News, April 13, 1970, at 41, cols. 4-8. Evaluated as a means of utilizing limited state funds in an effort to channel persons into those employment positions for which the society has great need, the statutory discrimination between college students and post-high school vocational trainees is not purely arbitrary or invidious, but rather, a rational approach designed to correct a perceived problem. Certainly, the statutory scheme is grounded in a more realistic basis than other situations where the judiciary has invoked its imaginative powers to justify state action. See, e. g., Kotch v. Board of River Port Comm’rs, 330 U.S. 552 , 67 S.Ct. 910 , 91 L.Ed. 1093 (1947).
In benefiting post-high school but not college students who are otherwise qualified, the Illinois approach is one of “under-inclusion.” See Developments in the Law — Equal Protection, 82 Harv.L.Rev. 1065, 1084-86 (1969). The Dandridge case, 397 U.S. at 488-489 , 90 S.Ct. at 1163 -1164 is the most recent in a long line of Supreme Court decisions which, essentially, have held that under-inclusion which results from a state’s attempt to do what it can within its means does not result in a denial of equal protection. See also, Williamson v. Lee Optical, Inc., 348 U.S. 483, 489 , 75 S.Ct. 461 , 99 L.Ed. 563 (1955); Buck v. Bell, 274 U.S. 200, 208 , 47 S.Ct. 584 , 71 L.Ed. 1000 (1927); Linsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78-79 , 31 S.Ct. 337 , 55 L.Ed. 369 (1911).
Plaintiffs have also suggested that the Illinois law, besides generally discriminating against brains in favor of brawn, would also discriminate between persons who pursue the same profession, but in different ways. For example, a girl enrolled in a nurses’ training course would be eligible for welfare support, but one attending college and majoring in nursing would not so qualify. Under Dandridge, 397 U.S. at 483 , 90 S.Ct. at 1161 , however, we cannot say that this theoretical imperfection amounts to a denial of equal protection or makes the Illinois statute unconstitutional.
As to the wisdom of the Illinois law, we make no comment. It is incumbent upon the judiciary to avoid the pitfalls similar to those in a substantive due process analysis. See L.Hand, The Bill of Rights 70-72 (Atheneum ed. 1964). We can only repeat what Mr. Justice Cardozo said in another context;
“Whether wisdom or unwisdom resides in the scheme of benefits set forth * * * is not for us to say. The answer to such inquiries must come from (the legislature), not the courts. Our concern here, as often, is with power, not with wisdom.”
Helvering v. Davis, 301 U.S. 619, 644 , 57 S.Ct. 904 , 81 L.Ed. 1307 (1937).
Having decided that Illinois has not violated the supremacy clause or denied plaintiffs the equal protection of the laws, our opinion ends.