The opinion
*55 Munder, J.
(dissenting). The attack here is against certain rules regarding maternity leave adopted by the petitioner school board. I call attention to the admonition of the Supreme Court of the United States contained in Epperson v. Arkansas ( 393 U. S. 97, 104 ): “ Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and constraint. * * * By and large, public education in our Nation is committed to the control of state and local authorities. Courts do not and cannot intervene in the resolution of conflicts which arise in the daily operation of school systems and which do not directly and sharply implicate basic constitutional values.”
In this context, the issue here is whether the petitioner’s regulation which requires that maternity leave commence not later than five months prior to the anticipated date of birth and that the recipient return to school no later than September 1 or January 2 next succeeding the expiration of one full year after birth, creates an arbitrary or unreasonable classification wholly unrelated to the objective sought to be advanced in adopting it. I conclude not.
The equal protection clause does not deny the States the power to treat different classes of persons in different ways. It does not require “ identity of treatment ” for all citizens. A legislative classification based on sex has often been held to be constitutionally permissible (see, e.g., West Coast Hotel Co. v. Parrish, 300 U. S. 379, 394-395 [1937] [statute providing minimum wages for women but not men]; Radice v. New York, 264 U. S. 292, 296-298 [1924] [special statute limiting hours of night work, of women in cities with a particular population]). A classification is not constitutionally offensive, i.e., is not discriminatory, if all persons similarly circumstanced are treated alike (see Reed v. Reed, 404 U. S. 71 ).
Men and women are not “ similarly circumstanced ” when it comes to pregnancy. It is ludicrous to state otherwise. No matter what the purpose or policy behind the Human Rights Law, gender as a source of differentiation cannot be neutralized when it comes to pregnancy. The simple biological fact is that only women become pregnant. The rule under consideration here treats all those who are similarly circumstanced, namely, pregnant teachers, the same. It recognizes that pregnancy produces certain physical and physiological changes in the mother-to-be which necessarily have an effect on the teacher’s performance of her duties. This is dramatically brought home by the complainant Rachel Curto who was employed by the petitioner *56 as a physical education teacher. The rule also recognizes the essential difference between pregnancy which is a normal condition and une which can be charted and the inherent unpredictability of medical and physical ailments or illness.
The orders under review should be annulled and the cross applications denied.
Martuscello, Shapiro and Brennan, JJ., concur with Hopkins, Acting P. J.; Munder, J., dissents and votes to annul the orders and to deny the cross applications, with an opinion.
The two above-entitled proceedings pursuant to section 298 of the Executive Law are dismissed on the merits, the two orders of the State Human Rights Appeal Board reviewed therein are confirmed and the two cross applications (one in each proceeding) to enforce said orders are granted, without costs.