Petition — Palmer v. Ticcione
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upreme Court, U.
FILED
IN THE |} AUG 11. 1978
SUPREME COURT OF THE UNITEQ, STATES... cierk
OCTOBER TERM, 1978
“2-9 40
No °
LOIS PALMER,
Petitioner,
~ against -
FRANK TICCIONE, EDWARD HAYES,
BENJAMIN GIAMBABIO, WILLIAM O'CONNELL,
WILLIAM GARGUILO, ROBERT JACOBS, and
N. PAUL BESCEMI, and THE SCHOOL BOARD
OF COPIAGUE UNION FREE SCHOOL
DISTRICT #5, -
Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT Of APPEALS
FOR THE SECOND CIRCUIT
Jonathan A. Weiss
LEGAL SERVICES FOR
THE ELDERLY POOR
Counsel for Petitioner
2095 Broadway, Room 304
¢ New York, New York 10023
(212) 595-1340
August 10, 1978
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1978
No.
LOIS PALMER,
Petitioner,
~ against -
FRANK TICCIONE, EDWARD HAYES,
BENJAMIN GIAMBABIO, WILLIAM O'CONNELL,
WILLIAM GARGUILO, ROBERT JACOB, and
N. PAUL BESCEMI, and THE SCHOOL BOARD
OF COPIAGUE UNION FREE SCHOOL
DISTRICT #5,
Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Jonathan A. Weiss
LEGAL SERVICES FOR
THE ELDERLY POOR
Counsel for Petitioner
2095 Broadway, Room 304
New York, New York 109023
(212) 595-1340
August i090, 1978
INDEX
Opinions Below... .eeeceeseveeeevens
Jurisdiction. .ccccccccccccvcccsscses
Statutory Provisions Involved......
Questions Presented....-+-seeeeeees
Statement of the Case......-+e-eeee-
Reasons for Granting the Writ......
POINT I. TERMINATION OF
INTELLECTUAL EMPLOYMENT
ON THE BASIS OF AGE
WITHOUT REASON OR
HEARING VIOLATES THE
FOURTEENTH AMENDMENT
TO THE U.S.
CONSTITUTION;
IF THE STATE STATUTE
SO PROVIDES IT IS
UNCONSTITUTIONAL.......-.-
POINT II. THE DECISION OF THE U.S.
COURT OF APPEALS FOR
THE SECOND CIRCUIT IN
THIS CASE EXPLICITLY
CONFLICTS WITH THE
DECISION OF THE U.S.
COURT OF APPEALS FOR
THE SEVENTH CIRCUIT IN
GAULT v. GARRISON, NOW
T
PETITION FOR CERTIORARI;
SUPREME COURT REVIEW IS
THEREFORE APPROPRIATE...
23
26
26
46
CEI, 6 6 6:6 6060604 dO 648K 6 Sw OO
Appendix A (Opinion of the
Second Circuit Court of Appeals)..
Appendix B (Opinion of the U.S.
WEOCEASS COURS) 56 kb os cee tocews es os
Appendix C (Opinion of the Seventh
Circuit Court of Appeals in
GOULE VV. GREFISOD) scccscccecccccce
ii
TABLE OF AUTHORITIES
Page
Arnett v. Kennedy, 416 U.S.
Se PG is 6b kad boo ne dean ee 38
Avco Corp. v. Aero Lodge 735,
390 U.S. 557 (1968),
rehearing denied 391 U.S. 929
CRED 6 666.606 605066 6866 db 08808 47, 48
Bell v. Burson, 402 U.S. 535
CLP7 EL) cvcce SwdebSdweaweeeeocneteses 36
Bevan v. New York State
Teachers’ Retirement System,
44 A.D.2d 163, 355 N.Y.S.2d
LBS (1974) ccccvecessccssccccece es 26
Bingler v. Johnson, 394 U.S.
EE) 6606485 oseeveeseeeveer eevee eee 47
Fuentes v. Shevin, 407 U.S. 67
60a; RAR rere co*oev wee wwe ere ee em ee err 37
Gault v. Garrison, 569 F.2d 293
7G GERs APTI Sesccecen Sa, 322, 46, 47
Goldberg v. Kelly, 397 U.S. 254
tle yer eeeeee oeeree eevee ee eee ee 36
Goldsmith v. Board of Tax
Appeals, 270 U.S. 117 (1926)..... 41
La Fleur v. Cleveland, 414 U.S.
* 1.) Peeper 42, 43, 44, 45
iii
Massachusetts Board of Retirement
v. Murgia, 427 U.S. 307
(1976) ......-. cece e reece sece 31, 32, 33
North Georgia Finishing v.
Di-Chem, 419 U.S. 601
thay) Pree ers Se re en aa Oe
Palmer v. Ticcione, No. 77-7444
(7a Cit. oe, SOTOR so caeceues 29, 47
Perry v. Sindermann, 408 U.S.
SSS Civlal 0546000400480 36, 38
Reed v. Reed, 404 U.S. 71
CEU TE) 00006 000sse un 6445 29
Roth v. Regents, 408 U.S. 564
CLOTS) ccccseceesetusesesasawanes 38
San Antonio School District v.
Rodriguez, 411 U.S. 1 (1973).... 29
Wolff v. McDonnell, 418 U.S. 539
CLOT) 6 06scake oereen er eeeeeeeeeeeee 37
iv
STATUTES
Page
New York State Education Law
§ 510 a, 26, 27, 34, 37, 39, 40, 44
© FBR s ke cwccsscceccves 3, 4, 5, 23, 27
1b Tree rererere ee 5, 6, 7, 8, 27
DB Pee sects bcccccosesretccsons 8, 9, 27
§ 3018... cece Sere eee Tee 9, 10, 27
DS DORM ew bce er sereeeesececccessoos 10, 27
ee SS Srrrerrerre ee re eee a8, Aid, 27
DS Bee cs ce cccvcescenceee Li, 27, 28, 35
BS JOZO—B. co ccccccccccccvccscess
a2, 22, 23, 14, 15, 16, 17, 27, 28, 35
BER eee c cree cv ecencnseccccs 17, 27, 35
§ 3022... ccccces 17, 18, 19, 20, 27, 35
§ 3027 (Cheweneeeeee eee ase 20, 21, 27
OTHER AUTHORITIES
Monaghan, Of "Liberty" and
property 62 Cornell L.Rev.
405 1977 oeereeeeeveeeneeeee eee @ 39
Revised Rules of the Supreme Court
of the United States, Rule 19
C2) ED) cc co vete ROE er ee ere ee 48
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1978
No.
LOIS PALMER,
Petitioner,
- against -
K TICCIONE, EDWARD HAYES,
BENJAMIN GIAMBABIO, WILLIAM O'CONNELL,
WILLIAM GARGIULO, ROBERT JACOB, and
N. PAUL BESCEMI, and THE SCHOOL BOARD
OF COPIAGUE UNION FREE SCHOOL
DISTRICT #5,
Respondents.
I
PETITION FOR A WRIT OF CERTIORAR
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
The petitioner, LOIS PALMER,
respectfully prays that a writ of
certiorari issue to review the judgment
and opinion of the United States Court
of Appeals for the Second Circuit
entered in this proceeding
on May 16, 1978.
OPINIONS BELOW
The opinion of the United States
Court of Appeals for the Second Circuit,
as yet unreported, appears at Appendix
A, infra, pp. . The opinion of the
United States District Court for the
Eastern District of New York, 433 F.Supp.
653 (E.D.N.Y. 1977), appears at Appendix
B, infra, pp. .
JURISDICTION
The judgment of the United States
Court of Appeals for the Second Circuit
was entered on May 16, 1978. The peti-
tion for certiorari was filed less than
ninety days from the date aforesaid.
The jurisdiction of this Court is invoked
under 28 U.S.C. § 1254(1).
THE STATUTES INVOLVED
§ 510. Superannuation retirement
1. Retirement upon a superannua-
tion allowance shall be made under
the following conditions:
b. Any member who has attained
age seventy may be retired at his
own request or at the request of
his employer if he or his employer
files with the retirement board a
statement duly attested setting
forth at what time subsequent to
the execution and filing thereof
retirement is desired, and if
throughout the year immediately
preceding the filing of such
statement he shall have been in
service as a teacher in this
state. The retirement board
shall retire said member as of
the date so specified or as of
such other time within thirty
days thereafter as the retirement
board may find advisable.
§ 3012. Tenure: certain union
free school districts
1. Teachers, principals, super-
visors and all other members of
the teaching and supervising
staff shall be appointed by
the board of education of a
union free school district
having a population of more
than forty-five hundred
inhabitants and employment
of a superintendent of schools,
for a probationary period of
three years. The service of
a person appointed to any
such position may be discon-
tinued at any time during
such probationary period,
on therrecommendation of
the superintendent of
schools, by a majority vote
of the board of education.
At the expiration of the
probationary term of a
person appointed for such
term, subject to the
conditions of this section,
the superintendent of schools
shall make a written report
to the board of education
recommending for tenure those
persons who have been found
competent, efficient and
satisfactory. Such persons,
and all others employed in
the teaching, examining or
supervising service of the
schools of such union free
school district, who have
served the probationary
period as provided in this
section, shall hold their
respective positions during
good behavior and efficient
and competent service, and
shall not be removed except
for any of the following
causes, after hearing, as pro-
vided by section three thousand
twenty-a of such law: (a) insu-
bordination, immoral character
Gr conduct unbecoming a
teacher; (b) inefficiency,
incompetency, physical or
mental disability, or neglect
of duty. Each person who is
not to be recommended for
appointment on tenure, shall
be so notified by the
superintendent of schools
in writing not later than
sixty days immediately
preceding the expiration of
his probationary period.
Notwithstanding any other
provision of this section
no period in any school year
for which there is no required
service and or for which no
compensation is provided shall
in any event constitute a break
or suspension of probationary
period or continuity of tenure
rights of any of the persons
hereinabove described.
§ 3013. Tenure: certain other
school districts
Re
Teachers, principals, except
principals of the district,
supervisors and all other
members of the teaching
and supervising staff, of
school districts employing
eight or more teachers,
other than city school
districts and school districts
having a population of four
thousand five hundred or more
and employing a superintendent
of schools, shall be appointed
by a majority vote of the
board of education or trustees
upon recommendation of the
district superintendent of
schools from lists submitted
to such district superintendent
by the principal of the district
in which they are to be
employed for a probationary
period of not to exceed five
years. Any principal of the
Gistrict, however, shall be
appointed by such school
authorities upon the
recommendation of the district
superintendent of schools.
Services of a person so
appointed to any such positions
may be discontinued at any time
during such probationary
period, upon the recommendation
of the district superintendenc,
by a majority vote of the
board of education or trustees.
On or before the expiration of
the probationary term of a
person appointed for such term,
except the principal of the
district, the district super-
intendent of schools shall
make a written report to the
board of education or trustees
recommending for appointment
on tenure, from lists and
reports furnished by the
principal of the district,
those persons who have been
found competent, efficient
and satisfactory. Any
principal of the district,
however, shall be recommended
for appointment on tenure to
such school authorities by
the district superintendent
of schools. By a majority
vote the board of education
or trustees may then appoint
on tenure any or all of the
persons recommended by the
district superintendent of
schools. Such persons
shall hold their respective
positions during good
behavior and competent and
efficient service and shall
not be removed except for any
of the following causes,
after a hearing, as
provided by section three
thousand twenty-a of such
law: (a) Insubordination,
immoral character or
conduct unbecoming a
teacher; (b) Inefficiency,
incompetency, physical or
mental disability or neglect
of duty. Each person who
is not to be so recommended
for appointment on tenure
shall be so notified in
writing by the district
Superintendent not later
than sixty days immediately
preceding the expiration of
his probationary period.
Notwithstanding any other
provision of this section
no period of any school year
for which there is no
required service and/or for
which no compensation is
provided shall in any event
constitute a break or sus-
pension of probationary
period or continuity of
tenure rights of any of
the persons hereinabove
described.
§ 3014. Tenure: boards of
cooperative educational services
1.
Administrative assistants,
Supervisors, teachers and
all other members of the
teaching and supervising
staff of the board of
cooperative educational
services shall be apointed
by a majority vote of the
board of cooperative
educational services upon
the recommendation of the
district superintendent
of schools for a proba-
tionary period, upon the.
recommendation of the .
by a majority vote of the
board of cooperative
educational services.
On or before the expiration
of the probationary term of
a person appointed for such
term the district superin-
tendent of schools shall make
a written report to the board
of cooperative educational
services recommending for
appointment on tenure persons
who have been found competent,
efficient and satisfactory.
Such persons shall hold their
respective positions during
good behavior and competent
and efficient service and
shall not be removed except
for any of the following
causes, after a hearing,
as provided by section three
thousand twenty-a of such law:
(a) Insubordination, immoral
character, or conduct
unbecoming a teacher; (b)
Inefficiency, incompetency,
physical or mental disability
or neglect of duty. Each
person who is not to be so
recommended for appointment
on tenure shall be so
notified in writing by the
district superintendent not
later than sixty days
immediately preceding the
cate, by whomsoever granted,
and declare him unfit to teach;
and if the teacher holds a
certificate of the commission-
er of education or of a former
Superintendent of public
instruction or a diploma of
a state college for teachers
Or state teachers college, he
shall notify the commissioner
of education forthwith of such
annulment and declaration.
§ 3019. Penalty for teacher's
failure to complete contract
Any failure on the part of a
teacher to complete an agree-
ment to teach a term of
school without good reason
therefor shall be deemed
sufficient ground for the
revocation of the teacher's
certificate.
expiration of his probationary § 3019-a. Notice of termination
period. of service by teachers
§ 3018. Revocation of certificate A teacher who desires to
by district superintendent terminate his services to
A district superintendent
shall examine any charge
affecting the moral
character of any teacher
within his district, first
giving such teacher reasonable
notice of the charge, and an
opportunity to defend himself
therefrom; and if he finds
the charge sustained, he shall
annual the teacher's certifi-
a school district at any
time, shall file a written
notice thereof with the school
authorities of such school
district or with the board
of cooperative educational
services or county vocational
education and extension
board at least thirty days
prior to the date of such
termination of services.
School authorities or
such boards which desire
= 10 -
to terminate the services of
a teacher during the proba-
tionary period shall give a
written notice thereof to
such teacher at least thirty
days prior to the effective
date of such termination
of services.
§ 3020. Dismissal of teacher
Except as otherwise provided
in sections twenty-five
hundred twenty-three, three
thousand twelve and three
thousand thirteen, no teacher
shall be removed during a
term of employment unless for
neglect of duty, incapacity
to teach, immoral conduct,
or other reason which,
when appealed to the
commissioner of education,
shall be held by him
sufficient cause for such
dismissal.
§ 3020-a. Hearing procedures and
penalties
1. Filing of charges. Except
in cities having a population
of one million or more, all
charges against a person
enjoying the benefits of
tenure as provided in sub-
division three of section one
thousand one hundred two, and
sections two thousand five
hundred nine, two thousand
five hundred seventy-three,
three thousand twelve, three
= 32 «=
thousand thirteen and three
thousand fourteen of this law
shall be in writing and filed
with the clerk of the school
district or employing board
during the period between the
actual opening and closing of
the school year for which the
employee is normally required
to serve. Except as provided
in subdivision eight of
section two thousand five
hundred seventy-three of this
law, no charges under this
section shall be brought
more than five years after
the occurrence of the alleged
incompetency or misconduct,
except when the charge is
of misconduct constituting
a crime when committed.
2. Disposition of charges.
Upon receipt of the charges,
the clerk of the school
district or employing board
shall immediately notify
said board thereof. Within
five days after receipt of
charges, the employing board,
in executive session, shall
determine, by a vote of a
majority of all the members
of such board, whether proba-
ble cause exists. If such
determination is affirmative,
a written statement specifying
the charges in detail, and
outlining his rights under
this section, shall be
immediately forwarded to the
accused employee by certified
- 12 «
mail. The employee may be
suspended pending a hearing
on the charges and the final
determination thereof.
Within five days of receipt
of the statement of charges,
the employee shall notify
the clerk of the employing
board whether he desires a
hearing on the charges. Unless
the employee has waived his
right to a hearing within the
allotted time, the clerk of
the board shall, not later
than the end of said five-
day period, notify the
commissioner of education
of the need for a hearing.
If the employee waives his
right to a hearing the
employing board shall proceed,
within five days, by a vote
of a majority of all the
members of such board, to
determine the case and fix
the penalty or punishment,
if any, to be imposed in
accordance with subdivision
four of this section.
3. Hearings.
a. Notice of hearing. Upon
receipt of a request for a
hearing in accordance with
subdivision two of this
section, the commissioner
of education shall schedule
a hearing, to be held in the
- 13 «
ee
Nahe
local school district, or
county seat, within fifteen
days of his receipt of the
request therefor, and
immediately notify the employ-
ee and the employing board
of the time and place thereof
and the procedures to be
followed in selecting a
hearing panel.
b. Hearing panel members.
For the purposes of this
selection the commissioner
of education shall maintain
a list of hearing panel
members, composed of
professional personnel
without administrative
Or supervisory responsibility,
professional personnel with
administrative or supervisory
responsibility; chief school
administrators, members of
employing boards and others,
selected from lists of
nominees submitted by state-
wide organizations representing
teachers, school administra-
tors and supervisors and the
employing boards. Hearing
panel members shall be
compensated at the rate
of fifty dollars for each day
of actual service plus necessary
travel and subsistence expen-
ses incurred in carrying out
the duties of a panel member.
c. Hearing procedures.
The commissioner of education
- 14 -
shall have the power to
establish necessary rules and
procedures for the conduct of
hearings under this section.
Such rules shall not require
compliance with technical
rules of evidence. All such
hearings shall be held before
a hearing panel composed of
three members not resident,
nor employed, in the territory
under the jurisdiction of the
employing board, selected in
the following manner from the
list maintained by the
commissioner of education
for such purpose: one
member shall be selected
by the employee, one member
shall be selected by the
employing board and the
third member shall be
chosen by mutual agreement
of the first two, or, if
they fail to agree, by the
commissioner of education.
Each such hearing shall be
conducted by a hearing officer
designated by the commissioner
of education and shall be
public or private at the
discretion of the employee.
The employee shall have a
reasonable opportunity to
testify in his own behalf.
Each party shall have the
right to be represented by
counsel, to subpoena
witnesses, and to cross-~-
examine witnesses. All
testimony taken shall be
under oath which the hearing
- 15 -
officer in charge is hereby
authorized to administer.
A competent stenographer,
designated by the commissioner
of education, shall keep and
transcribe a record of the
proceedings at each such
hearing. A copy of the
transcript of the hearing
shall, upon request, be
furnished without charge
to the employee involved.
4. Post hearing procedures.
Within five days of the
conclusion of a hearing
held under this section, the
commissioner of education
Shall forward a report of
the hearing panel and their
recommendations as to penalty
if one is warranted, to the
employee and to the clerk of
the employing board. Within
five days of receipt of such
hearing report the employing
board shall determine the case
by a vote of a majority of
all the members of such board
and fix the penalty or
punishment, if any, which shall
consist of a reprimand, a fine,
Suspension for a fixed time
without pay or dismissal. If
the employee is acquitted he
shall be restored to his
position with full pay for
any period of suspension
and the charges expunged
from his record.
5. Appeal. Any employee
feeling himself aggrieved
may review the determination
« 16 «
of the employing board either
by appeal to the commissioner
of education as provided for
by article seven of this
chapter, or by a special
proceeding under article
seventy-eight of the civil
practice law and rules.
If the employee elects to
institute such proceeding,
the determination of the
employing board shall be
deemed to be final for the
purpose of such proceeding.
§ 3021. Removal of superinten-
dents, teachers and employees
for treasonable or seditious
acts or utterances
A person employed as
superintendent of schools,
teacher or employee in the
public schools, in any city
or school district of the
state, shall be removed from
such position for the
utterance of any treasonable
or seditious word or words
or the doing of any treason-
able or seditious act or acts
while holding such position.
§ 3022. Elimination of subversive
persons from the public school
system
1. The board of regents
shall adopt, promulgate,
and enforce rules and
regulations for the disquali-
fication or removal of
2 i7 «
SR Ne as tah nd Be rm
superintendents of schools,
teachers or employees in the
public schools in any city
Or school district of the
State and the faculty
members and all other
personnel and employees of
any college or other
institution of higher educa-
tion owned and operated by
the state or any subdivision
thereof who violate the
provisions of section three
thousand twenty-one of this
article or who are ineligible
for appointment to or
retention in any office or
position in such public
schools or such institutions
of higher education on any of
the grounds set forth in
section twelve-al of the
Civil service law and shall
provide therein appropriate
methods and procedure for
the enforcement of such
sections of this article and
the civil service law.
2. The board of regents
shall, after inquiry, and
after such notice and hearing
as may be appropriate, make
a listing of organizations
which it finds to be subver-
Sive in that they advocate,
advise, teach or embrace the
doctrine that the government
of the United States or of
any other state or of any
political subdivision thereof
shall be overthrown or over-
- 18 -
thrown or overturned by force,
violence or any unlawful
means, or that they advocate,
advise, teach or embrace the
duty, necessity or propriety
of adopting any such doctrine,
as set forth in section
twelve-al of the civil service
law. Such listings may be
amended and revised from time
to time. The board, in
making such inquiry, may
utilize any similar listings
or designations, promulgated
by any federal agency or
authority authorized by
federal law, regulation or
executive order, and for the
purposes of such inquiry,
the board may request and
receive from such federal
agencies or authorities any
supporting material or
evidence that may be made
available to it. The board
of regents shall provide
in the rules and regulations
required by subdivision one
hereof that membership in
any such organization
included in such listing
made by it shall constitute
prima facie evidence of _
disqualification for appoint~
ment to or retention in any
office or position in the
public schools of the state.
3. The board of regents shall
annually, on or before the
fifteenth day of February,
by separate report, render to
the legislature, a full state-
ment of measures taken by it
- 19 -
for the enforcement of such
provisions of law and to
require compliance therewith.
Such reports shall contain a
description of surveys made
by the board of regents, from
time to time, as may be
appropriate, to ascertain
the extent to which such
provisions of law have been
enforced in the city and
school districts of the state.
§ 3027. Discrimination based on
age prohibited
Notwithstanding any provi-
sion of law to the contrary,
no board of education in any
city, union free, common or
central school district in
this state shall hereafter
prohibit, prevent, disqualify
or discriminate against any
persons who is physically and
mentally qualified from
competing, participating,
Or registering for an
examination for or from
qualifying for, a position
as teacher, or be penalized
in a final rating by reason
of his or her age. Any such
rule, requirement, resolu-
tion, regulation or
penalization of such board
shall be void.
Nothing herein contained,
however, shall prevent such
board from adopting reasonable
minimum or maximum age
requirements for positions
- 20 =
which require extraordinary
physical effort, except
where age limits for such
positions are already
prescribed by law.
= 21 «
QUESTIONS PRESENTED
Where a teacher adjudged and
admitted to be fully competent to
perform her duties was discharged,
pursuant to a retirement law, solely on
the basis of age:
(1) Was the Second Circuit Court
of Appeals correct in finding no consti-
tutional infirmity in the dismissal of a
civil rights action to remedy the
unwarranted discharge?
(2) Was the Second Circuit Court
of Appeals correct in disagreeing with
its sister Seventh Circuit Court of
Appeals which held that a teacher cannot
be discharged solely on the basis of
chronological age and that such a
discharge would be unconstitutional?
=- 22 -
STATEMENTS OF THE CASE
The facts in this case are not in
dispute. Mrs. Palmer, petitioner, has
engaged in a teaching career since 1943.
Beginning with the 1961-62 school year,
she was employed by the respondents,
COPIAGUE UNION FREE SCHOOL DISTRICT #5,
as a kindergarten teacher. Mrs. Palmer
became a tenured teacher within the
meaning of New York State Education Law
§ 3012 at the end of the 1963-64 school
year. During each year of her employ-
ment, up to and including the 1974-75
school year, Mrs. Palmer received
satisfactory evaluation of her per-
formance as a teacher. In her most
recent evaluation, on March 10, 1975,
her supervisor recommended that Mrs.
Palmer be rehired for the 1975-76 school
year. Nevertheless, in May, 1975,
respondent BUSCEMI informed
- 23-
Mrs. Palmer that she was to he retired
because she had turned 70. The School
Board of the COPIAGE UNION FREE SCHOOL
DISTRICT #5 met and ratified this
decision on June 16, 1975, and then
directed the New York State Teachers'
Retirement System to place Mrs. Palmer
On retirement on August 25, 1975.
After correspondence on the issue,
petitioner filed her complaint on
December 1, 1975. On January 27, 1977,
petitioner's motion for summary
judgment and respondents' motion to
dismiss were heard before Judge Neaher.
On July 5, 1977, Judge Neaher granted
respondents' motion to dismiss.
Petitioner filed her notice of
- 24 -
appeal July 29, 1977. The U.S. Court
of Appeals for the Second Circuit
affirmed the district court decision
on May 16, 1978. On August 13, 1978,
petitioner filed this petition for a
writ of certiorari.
- 25 ~
POINT I. TERMINATION OF INTELLECTUAL
EMPLOYMENT ON THE BASIS
OF AGE WITHOUT REASON OR
HEARING VIOLATES THE
FOURTEENTH AMENDMENT TO
THE U.S. CONSTITUTION;
IF THE STATE STATUTE SO
PROVIDES IT IS
UNCONSTITUTIONAL.
A. § 510 of the New York Education
Law violates the Equal Pro-
tection Clause because the
statute's system of classifica-
tion does not satisfy the
Wrational relationship" test.
The primary purpose of § 510 of
the New York Education Law is to pro-
mote efficient distribution of
retirement benefits to teachers.
Cf. Bevan v. New York State Teachers
Retirement System, 44 A.D.2d 163,
355 N.Y.S.2d 185 (1974) (construing
§ 511, a companion section related
- 26 -
to disability retirement). As part
of the definition of eligibility
criteria, § 510(1)(b), if interpreted
1
as urged by respondents, permits
1
Petitioner urged and continues to main-
tain that § 510 be construed consistently
with §§ 3012-14, 3018-22, and 3027 of the
New York Education Law, and read as requiring
that an employer's request of retirement of
a teacher against his or her will
meet the general requisites for removal
of any teacher or any age, i.e., immoral
conduct, neglect of duty, incapacity to
teach, or other reasons made explicit in
state or school board policy. This
point was briefed extensively below
and if certiorari is granted will
be briefed as a pendent claim.
- 2} -
the local school boards arbitrary
power to retire teachers age 70 or
Older. The statute thus conditions
job security on age. Tenured teachers
younger than seventy can only be
terminated for cause, § 3020, and by
specified procedure, § 3020-a,
Education Law. Teachers age seventy
or older receive different treatment;
they can be removed arbitrarily by
a mere request of the school board.
This type of statutory classifica-
tion is invalid if “different treatment
be accorded to persons placed by a
statute into different classes on
the basis of criteria wholly unrelated
- 28 -
to the objectives of that statute.”
Reed v. Reed, 404 U.S. 71, 75-76
(1972). This objective must be the
actual, “articulated” purpose of that
Statute and not a mere hypothetical
or speculative justification.
McGinniss v. Royster, 410 U.S. 263,
270 (1973); San Antonio School
District v. Rodriguez, 411 U.S. l,
17 (1973). It is therefore not enough
that, as Judge Hayes suggests,
".,...a state might prescribe mandatory
retirement for teachers in order to
[advance unstated objectives]", Palmer
v. Ticcione, No. 77-7444 (2d Cir.
May 16, 1978), at 306304 (see Appendix
A) (emphasis added), or that a local
- 29 -
school board might have adopted an
unstated policy to promote unstated
objectives in addition to the
primary one set forth by the state.
The objective of efficient
distribution of retirement benefits
is not furthered by granting local
school boards unlimited
discretionary power to compel retire-
ment of teachers age 70 or older.
In fact, such unlimited power may
frustrate efficient distribution
of benefits by adding
unpredictability to the system (the
status of each 70+ year old teacher
is problematic) and increasing the
- 30 -
rolls (to whatever extent forced
retirements occur).
This unlimited power also frustrates
one cf the general objectives of the
state education system: to hire and
retain qualified personnel. Although
this Court in Massachusetts Board of
Retirement v. Murgia, 427 U.S. 307
(1976), upheld a statute mandating
retirement for state troopers who
reached the age of 50, this Court
did that on the basis of specified
relevant factors. For example, in
Murgia, the defendants came forward
with evidence that physical ability
generally declines with age; the
retirement statute was therefore
sufficiently related to the state's
interest in the physical fitness
of its state troopers so as to with-
Stand an equal protection challenge.
Here, no evidence has been offered
that the skills required of a
kindergarten teacher deteriorate with
age. In Gault v. Garrison, 569 F.2d
993, 996 (7th Cir. 1977), the court
noted that, to the contrary, "...much
in the way of knowledge and experience,
so helpful to the educational
profession, is often gained through
years of practice." As Justice Marshall
noted in his dissent in Murgia:
That the Court concludes it
is rational to legislate on
the assumption that physical
strength and well being
decreased significantly with
age does not imply that it
will reach the same conclusion
with respect to legislation
based on assumptions about
mental...ability.
B. §510 of the New York Education
Law violates the Equal
Protection Clause because the
statute's procedure for
dismissal of teachers on the
basis of age provides no
safeguards, whereas state
procedure for dismissal of
teachers on any other
ground provide elaborate
427 U.S. at 327, fn. &. safeguards.
The Gault court, facing a record devoid New York Education Law has,
of evidence demonstrating a...» according to respondents, elaborate
"rational relationship” between procedural safeguards in its
deterioration of mental ability or provisions governing dismissal of
any tenured teacher - as long as the
2
teacher is less than 70 years old.
teaching skills and age, refused
to extrapolate from Murgia to a case
: j ‘ no 2
where the reasoning of Murgia made As discussed in footnote l,
petitioner takes issue with this
statutory interpretation, but if it
is carried then the statute is
unconstitutional.
sense. The equal protection
clause bars capricious discrimination,
to protect individuals such as Ms.
Gault and Mrs. Palmer.
§$§ 3020, 3020-a, 3021, 3022. But
New York Education Law has no procedural
safeguards written into its provisions
governing any dismissal of any tenured
teacher seventy years of age or older.
The Gault court held that
...ethe classification of teachers
between those who are afforded
and those who are not afforded
procedural safeguards before
their removal on its face
discriminates against persons
who are similarly situated.
Accordingly, we cannot sanction
the total lack of procedural
equality suffered by teachers
who have reached the age of 65
without a record showing the
presence or absence of a
justifiable and rational state
purpose. Gault v. Garrison,
569 F.2d 993, 997 (7th Civ. 1977).
The Gault argument is equally applicable
and equally ccmpelling in the case at
bar.
C. §510 of the New York Education
Law violates the Due Process
Clause because it allows the
taking of property without a
prior hearing.
Whenever property or liberty are
threatened by state action, due process
is triggered as a limitation upon that
action. Perry v. Sindermann, 408 U.S.
993 (1972). In general, procedural due
process must be afforded to those con-
demned by state action "to suffer
grievous loss." Goldberg v. Kelly,
397 U.S. 254, 262 (1970); see also,
Bell v. Burson, 402 U.S. 535 (1971). In
particular, notice and some kind of
hearing are required before property is
finally taken. See North Georgia
- 36 -
Finishing v. Di-Chem, 419 U.S. 601 (1975)
and Fuentes v. Shevin, 407 U.S. 67 (1972);
see also, e.g., Wolff v. McDonnell, 418
U.S. 539, 557-8 (1974). In this case,
however, despite the fact that Mrs.
Palmer's property right in continued
employment has been infringed by res-
pondents' interpretation of New York
Education Law §510(1)(b), no procedural
safeguards were accorded at any time.
Thus, the statute is violative of due
process as guaranteed by the Fourteenth
Amendment and as such must be invalidated.
(i) Mrs. Palmer has a property
richt to her job as a
Kindergarten teacher.
The right to public employment has
- 37 «
been accorded the protection of due
process in the past. See Perry v.
Sindermann, supra, enforcing another
teacher's employment as a property right
and the consistent line of citations
employed as its reasoned base. See also
Arnett v. Kennedy, 416 U.S. 134 (1974).
While it is well settled that a tenured
teacher has a property richt in continued
employment unless cause for dismissal is
shown, Arnett, supra, tenure is not a
prerequisite to the application of due
process, for property may be based upon
a need to "protect those claims upon which
people rely in their daily lives." Roth v.
Regents, 408 U.S. 564, 577 (1972).
38 -
Mrs. Palmer was arbitrarily ter-
minated after a period in which the
employment rights had become vested, i.e.
after a period of tenure. > Yet res-
pondents' interpretation of §510(1) (b)
permits termination by arbitrary act.
A board cannot either re-define Mrs.
Palmer's property right as not property
or affect it without due process, since
the right to property is protected by
the Federal Constitution. See in general,
Monaghan, Of "Liberty" and "Property",
62 Cornell L. Rev. 405, 440 (1977),
’ Although Murgia involved a non-
probationary employee discharged for age,
the due process issue was not specifically
raised there. Moreover, there was a
uniform rule applying to a class of
people which rule was based on defensible
generalization. Here respondents would
give unbridied discretion for selective
discrimination.
- 39 «
defining the Federal interest in state law
created property rights. Regardless of
its moorings in state law, once property
is created its protection can be federal,
and any abridgement must satisfy due
process standards.
(ii) §510(1)(b) of the New York
Education Law is violative
of due process in that it
delegates unfettered dis-
cretion to the School Board.
In a discussion of the constitu-
tionality of a rule of the Board of Tax
Appeals which allowed it to disbar an
attorney at its discretion without a
hearing or even a statement of reason,
this Court stated that discretionary
power "must be construed to mean the
- 40 -
exercise of a discretion to be exercised
after fair investigation, with such a
notice, hearing and opportunity to answer
for the applicant as would constitute
due process." Goldsmith v. Board of Tax
Appeals, 270 U.S. 117 (1926) (case dis-
posed of on other grounds). Mrs. Palmer
had a right to an appropriate hearing
appropriately conducted.
- 41 -
D. Discharge on age creates an
irrebuttable presumption.
The facts of Mrs. Palmer's case
bring it within the holding of La Fleur
v. Cleveland Board of Education, 414 U.S.
632 (1974). In La Fleur, the Court
struck down as a violation of the Due
Process Clause of the Fourteenth Amendment
mandatory maternity leave rules for school
teachers in Cleveland, Ohio, and Chester-
field County, Virginia. While recognizing
the school boards' interest in preserving
continuity of instruction and assuring
the physical capability of school
teachers, the Court found that the
mandatory termination provisions of the
- 42 -
Cleveland and Chesterfield County rules
"surely cperate to insulate
the classroom from the
presence of potentially
incapacitated teachers.
But the question is whether
the rules sweep too broadly
[citation omitted]...that
question must be answered
in the affirmative, for
the provisions amount to
a conclusive presumption
that every pregnant teacher
who reaches the fifth or
sixth month of pregnancy
is physically incapable
of continuing. There is
no individualized deter-
mination by the teacher's
doctor - or the school
board's - as to any
particular teacher's
ability to continue at
her job. The rules
contain an irrebuttable
presumption of physical
incompetency, and that
presumption applies even
when the medical evidence
as to an individual woman's
physical status might be
wholly to the contrary."
414 U.S. at 644.
- 43 -
The similarity of the fact
Situation in the case at bar to the
Situation in La Fleur is striking.
Here, age, a physical condition like
pregnancy, has been permitted to operate
as an irrebuttable presumption of mental
incompetency. The La Fleur decision
struck down mandatory pregnancy leave
rules, strongly implying that nothing
less than a case by case determination
of fitness would suffice. Allowing
§510(1) (b) of the New York Education Law
to operate as a license for school
boards to dismiss teachers over age 70
at will and in an arbitrary fashion,
even in the absence of a hearing on
- 44 =
fitness (indeed, in Mrs. Palmer's case,
in the face of an evaluation finding her
eminently qualified to continue teaching)
runs counter to the holding of La Fleur
and the Due Process Clause.
POINT II. THE DECISION OF THE U.S.
COURT OF APPEALS FOR THE
SECOND CIRCUIT IN THIS
CASE EXPLICITLY CONFLICTS
WITH THE DECISION OF THE
U.S. COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
IN GAULT V. GARRISON,
NOW THE SUBJECT OF A
PETITION FOR CERTIORARI;
SUPREME COURT REVIEW
IS THEREFORE APPROPRIATE.
The plaintiffs in both Palmer v.
Ticcione and Gault v. Garrison, 569
F.2d 993 (7th Cir. 1977), are public
school teachers who were retired
against their will and in spite of
their continued capability to teach,
because they had reached “retirement
age." The defendants in both cases
are the school personnel who
executed the retirement decision.
- 46 -
As Judge Hays wrote for the Second
Circuit, “...Gault fnmvolves a
factual situation very similar to
that of the instant case - the major
difference is that the retirement age
in Gault was 65, not 70 [as it was
in Palmer]..." Palmer v. Ticcione,
No. 77-7444 (2d Cir. May 16, 1978),
at 3061 (see Appendix A). :
The existence of conflicting
decisions on the same issue by
different U.S. Circuit Courts of
Appeals is a well-established reason
for granting a writ of certiorari.
See Bingler v. Johnson, 394 U.S.
741 (1969) and Avco Corp. v. Aero
Lodge 735, 390 U.S. 557 (1968),
- 47 ~
rehearing denied 391 U.S. 929 (1968);
Revised Rules of the Supreme Court
of the United States, Rule 19(1) (b).
Irreconcilable Circuit Court opinions
on the same important federal question
merit the clarification only the Supreme
Court can supply. A writ of
certiorari is therefore appropriate
in this case.
~- 48 -
CONCLUSION
For these reasons, 4 writ of
certiorari should issue to review the
judgment and opinion of the Second
Circuit.
DATED: NEW YORK, NEW YORK
August 10, 1978
Respectfully submitted,
JONATHAN A. WEISS, Esq.
Attorney for Petitioner
2095 Broadway, Suite 304
New York, NY 10023
(212) 595-1340
a? PERROTTA." a”
UNITED STATES COURT OF APPEALS
For tHe Sreconp Circuit
No. 466—September Term, 1977.
(Argued January 23, 1978 Decided May 16, 1978.)
Docket No. 77-7444
tiie tie
es
Lois PaLMEr,
Plaintiff-Appellant,
Vv.
FRaNK : ,
TICCIONE, Howarp Hayes, Beygamix G
Wriur1m O’C Ee
> a. ONNELL, Wittiam GancruLo, Rosert JACOB,
- auL Buscemi, and Tue Scuoon Boarp or THE
opiaGUE Union Free Scnoor Districr #5
‘ >
Defendants-A ppellees.
a
9
Y
Before:
Hays an ; x, Circuit
d Gurrery, Circuit Judges,
and Bryan, District Judge.*
_"
“+
a>»
oe
Pre 2 _— an order of the United Siates District
a Pa moe District of New York, the Si escenhle
arc veaher, Judge, dismissir .
s 1g plaintiff oAa-
tions of age discrimination in violation of the belaewe
‘ ‘O-
Honorable Frederi
derick van Pelt Br
yan, Unit
mw crete District of New York, si an - pie ame
gn v
es = ron to afiirm, He unfortunately passed at <n sip
was drafted. As a result, his concurrence could not Rotary
ec ec
300%)
A~3
tection and due process clauses of the Fourteenth Amend-
ment for want of a substantial federal question.
Affirmed.
JonatHan A. Weiss, New York, N.Y., for Plain-
tiff-A ppellant.
Cuartes D, Maurer, New York, N.Y., (Henry
Weinstein, New York, N.Y., on the brief),
for Defendants-Appellees.
~~
Se
Hays, Circuit Judge:
Appellant, Lois Palmer, commenced this action under 42
U.S.C. §1983 (1940) for age discrimination in violation of
the equal protection and due process guarantees of the
Fourteenth Amendment. The district court granted the
defendants’ motion to dismiss for want of a substantial
federal question. For the reasons stated below, we affirm
the dismissal of the compiaint.
I
The facts are undisputed. Appellant has heen a teacher
since 1943. She has been employed by the defendant Co-
piague Union Free District #5 as a kindergarten teacher
since the 1961-62 school year. She received tenure at the
end of the 1963-64 school year. In February 1973, she
reached the age of 70. On May 15, 1973, she met with de-
fendant N. Paul Buscemi, the Copiague superintendent of
schools. He informed her that she was to be retired at the
end of the school year because she had reached the retire-
ment age of 70. This decision was subsequently ratified by
the Copiague school board, and the New York State Retire-
ment System was directed to place Mrs. Palmer on retire-
ment status as of August 25, 1975.
3060
< A~2
It is not disputed that appellant is willing and able to
teach. Her performance as a teacher was rated satisfac-
tory in each year of her employment. In the last evalua-
tion, made just before she was retired in 1973, her principal
recommended that she be rehired, “[sJubject to review of
compulsory retirement under New York State Education
Law.”
Appellant contends that retirement solely on the basis of
her age violates her constitutional and state law rights.
Essentially, she claims: that compulsory retirement at age
70 violates the equal protection clause; that it creates an
irrebuttable presumption of incompetency based on age;
that, as a tenured teacher, she is entitled to a hearing be-
fore termination; and that, in the alternative, the New
York Education Law should be read to prohibit com pulsory
retirement or, if not, to require a hearing before termina-
tion.
II
Compulsory retirement systems have come under con-
stitutional attack in several contexts. These equal protec-
tion and due process challenges have been rejected by this
and other courts. The only exception is Gault v. Garrison,
- 569 F.2d 993 (7th Cir. 1977). In that case, the Seventh
Circuit ruled that a retired teacher is entitled to a trial on
her age discrimination claim. Because Gaulé involves a
factual situation very similar to that of the instant caso—
the major difference is that the retirement age in Gault was
65, not 70—and hecause we disagree with the Gault hold-
ing, we think it appropriate to focus on this issue ouce
again.
he ruling in Gaulf is premised on the implications of
the Supreme Court’s most recent decision in this area. Ty
Massachusetts Board of Retirement y. Murgia, 427 US.
3061
307 (1976), the Court upheld a state law requiring the
mandatory retirement of uniformed police at age 59. First,
Murgia established that the proper standard for equal pro-
tection review in a case challenging a compulsory retire-
ment statute is the rational basis test. Jd. at 312-14.
Applying this standard, the Court found that forced retire-
ment at age 50 did foster the purpose identified by the
state; it assured the continued physical preparedness of
the state’s uniformed police. Jd. at 314-16. In Wurgia, there
had been a trial, and there was evidence in the record to
support the conclusion that physical preparedness is ra-
tionally related to age.
As in the instant case, but unlike Jurgia, Gault involved
an appeal from an order dismissing the complaint. The
Gault court assumed that the strongest justification for a
retirement law for teachers is to remove those who are
unfit. Working from that premise, it held that, absent an
evidentiary showing, there was no reason to assume that
there is any relationship between advancing age and fit-
ness to teach. Gault distinguished Murgia as involving a
question of whether physical fitness declines with age, and
noted that there was evidence in the record to support the
conclusion that it does. It contrasted this with the ques-
tion whether teaching ability, which involves predomi-
- nately mental skills, similarly declines with age. Absent an
evidentiary showing, the court saw no reason to assume
that it does; in fact, it speculated that the knowledge and
experience necessary for teaching increases with age.?
1 Gault also distinguished Bfurgia on another ground. It noted that,
az between teachers and policemen, the consequences of Jack of fitness
differ substantially. If a police officer is not fit, his inability to perform
could become a matter of life or death. Thus, a general, perbaps overly
broad rule is justified to prevent such occurrences. If a teacher becomes
unfit, however, the consequences are not so immediate. There is adequate
Accordingly, it remanded for further proceedings to deter-
mine whether compulsory retirement of teachers at age 65
is rationally based. 569 F.2d at 9960.
We decline to follow Gault for two reasons. First, while
there is a valid distinction between the instant case and
Murgia, we cannot distinguish the prior cases that have
sustained compulsory retirement statutes for occupations
that involve primarily mental skills. In Johnson v. Lefko-
witz, 566 I’.2d 866 (2d Cir. 1977), we upheld the constitu-
tionality of §70 of the New York State Retirement and
Social Security Law (McKinney’s 1971), which requires
tenured civil servants to retire at age 70. In Johnson,
the plaintiff had been dismissed from his position as senior
attorney in the Real Property Bureau of the state’s law
department. In Rubino v. Ghezzi, 512 F.2d 431 (2d Cir.),
cert. denied, 423 U.S. 891 (1975), we upheld the constitu-
tionality of the mandatory retirement of state judges at
age 70. And, in Weisbrod v. Lynn, 383 F.Supp. 933 (D.D.C.
1974), aff'd, 420 U.S. 940 (1975), mandatory retirement of
federal civil servants at age 70 was upheld as constitu-
tional, even though the statute undoubtedly requires the
retirement of some civil servants who are engaged in oceu-
pations that involve primarily mental skills. Cf. Weiss v.
Walsh, 324 F.Supp. 75 (S.D.N.Y. 1971), aff’d, 461 F.2d
846 (2d Cir. 1972), cert. denied, 409 U.S. 1129 (1973) (de-
nial of state-endowed chair to college professor over 65
“is not unconstitutional age discrimination).
Second, Gault too narrowly conceives the possible ra-
tional bases for a compulsory retirement statute. Unrelated
to any notion of physical or mental fitness, a state might
prescribe mandatory retirement for teachers in order to
time to effect his or her removal via appropriate procedural means. 569
F.2d at 996,
While this distinction bas merit, we do not find it sufficiently persva-
sive in view of the considerations expressed below.
3053
A-5
-_"
open up employment opportunities for young teachers—
particularly in the last decade when supply has outpaced
demand, or to open up more places for minorities, or to
bring young people with fresh ideas and techniques in con-
tact with school children, or to assure predictability and
ease in establishing and administering pension plans. A
compulsory retirement system is rationally related to the
fulfillment of any or all of these legitimate state objec-
tives.
Thus, it would seem clear that, Gault notwithstanding,
the New York State compulsory retirement system for
teachers is immune from constitutional attack. However,
appellant seeks to distinguish the instant case on two
grounds. First, she argues that, since the statute must
“rationally [further] the purpose identified by the State,
.. -” Murgia, supra, 427 U.S. at 314 (emphasis added) ;
San Antonio School District v. Rodriguez, 411 U.S. 1, 17
(1973), we may only look to the purpose of the com-
pulsory retirement law as evidenced by the statutory
scheme. Section 510(1)(b) of the New York Education
Law (MciXinney’s 1969), which provides for compulsory
retirement at the employer’s discretion, is part of a statute
governing retirement benefits.? Thus, appellant contends
2 N.Y.Ed. Law §510(1)(b) (McKinney’s 1969) provides:
Any member who has attained age seventy may he retired at his
own request or at the request of his employer . . . if throughout
the year immediately preceding ... he shall have been in service
as a teacher in this state.
On its face, §510 seems to be rrore concerned with eligibility for re-
tirement benefits than with compulsory retirement. Article 11 of the
Education Law, of which §510 is a part, has been characterized as a
statute “primarily designed to provide benefits to certain qualified super-
annuated or disabled [teachers] . . .” not “to enforce a [teacher's]
retirement without consent....” Bevan v. New Yor? State Teachers’
Retirement System, 44 A.D.2d 165, 165, 355 N-Y.S.2d 185, 187-8 (1974)
(emphasis in original) (construing §521, a companion sectigg related to
disability retirement).
3064
A-6
that the only possible purpose of the statute is to further
the efficient distribution of retirement benefits. She argues
that compulsory retirement is not rationally related to
this purpose because the statute provides for compulsory
retirement at the discretion of the einployer. This encour-
ages unpredictability in the administration of the pension
program. Also, she contends that, to the extent that able
teachers are forced to retire at age 70, compulsory re-
tirement defeats the purpose of the statute by adding un-
necessarily to the retirement rolls. Second, appellant
argues that because this case involves a statute that pro-
vides for discretionary rather than mandatory compulsory
retirement, the precedents are inapposite.
Closer scrutiny of the statute provides the answer to the
first argument. Section 501(1)(b) is permissive; it allows
individual school boards to implement compulsory retire-
ment policies. See Harren vy. Middle Island Central School
District #12, No. 12656/74 (Sup. Ct. 1974), aff’d 49 A.D.2d
879, 373 N.Y.S.2d 20 (1975). Thus, if an individual school
board adopts a compulsory retirement policy, whether
mandatory or discretionary, it may be to further any of the
purposes suggested above, without regard to the narrow
context of the empowering statute. Since such a board
adopted policy would be supportable as rationally based,
“we would be constrained to uphold it as a legitimate exer-
‘cise of a statutorily authorized power.
With regard to the second argument, we fail to see its
relevance. The record is inconclusive on whether Copiague
has adopted a mandatory or discretionary retirement pol-
icy. There is nothing in the record to indicate that the
appellant was discharged under anything other than an
across-the-board, mandatory retirement policy. If so, then,
as noted above, the board’s action is clearly immune from
constitutional attack. However, even if appellant was re-
3065
A-7
tired under a discretionary policy, the result would be the
same. First, a discretionary retirement policy would still
be rationally related to a legitimate state goal: it would
further any of the purposes noted above, with the excep-
tion of those related to the maintenance of pension plans.
Second, the Johnson case would still be on point. Johnson
involved §70 of the New York Retirement and Social Se-
curity Law (McKinney’s 1971), a statute that is func-
tionally equivalent to discretionary retirement. Subsection
(c) provides that a civil servant may be retained beyond
age 70 under certain conditions. If he or she is retained,
however, he or she is subject to termination upon sixty
days’ notice. Johnson had been given two extensions and
was then summarily retired. The court found no constitu-
tional infirmity with that system. We find none in the
instant case either. |
We reach the same conclusion with regard to the due
process attack on compulsory retireinent as establishing an
irrebuttable presumption. That claim is analytically very
similar to the equal protection one. If the statutory classi-
fication is sustainable as rationally based, then it should
not fall because it might also be labeled a presumption.
Moreover, the due process claim was before the Court in
McIlvaine v. Pennsylvania, 415 U.S. 986 (1974), and Weis-
brod v. Lynn, 420 U.S. 940 (1975), aff’g 383 F.Supp. 933
- (D.D.C. 1974), and this court in Rubino v. Ghezzi, 512 F.2d
431 (2d Cir.), cert. denied, 423 U.S. 891 (1975). In each
case it was rejected.
Appellant also claims that she was entitled to a due
process hearing before being retired. However, we can see
no purpose for a hearing if appellant was retired under
an across-the-board, mandatory retirement system. And
even if a diserctionary system was employed, we would be
constrained to follow Johnson, supra, and deny this claim.
3055
°«
A-8 .
«
In Johnson, we held that a hearing is not required becanse
the benefits of holding such a hearing are outweighed
by the burdens imposed upon the state by requiring a hear-
ing in every case. 566 J".2d at S69.
Iii
Appellant also raises several state law claims. She con-
tends that compulsory retirement is forbidden by N.Y. Ed.
Law §3027 (McKinney’s 1969).2 She also asserts that
§510(1)(b) should be read in conjunction with §§3018-3022
of the Education Law, governing the dismissal and disci-
pline of tenured teachers, to, amongst other things, require
a hearing before termination.
The first question has, apparently, never been deter-
mined by the New York courts. The second, however, has
been, and the result has been unfavorable to the appellant.
Harren v. Middle Island Central School District +12, No.
12656/74 (Sup. Ct. 1974), af’d, 49 A.D.2d 879, 373 N.YS.
2d 20 (1975).* In any case, we do not think it necessary
3 N.Y.Ed. Law $3027 (McKinney’s 1970) provides:
Notwithstanding any provision of law to the contrary, no board of
education . . . shall hereafter prohibit, prevent, disqualify or dis-
criminate against any person who is physically and mentally qual-
ified from competing, participating, or registering for an examina-
tion for or from qualifying for, a position as teacher, or be penalized
in a final rating by reason of bis or her age. Any such rule, require-
ment, resolution, regulation, or penalization of such board shall be
void.
Nothing hereia contained, however, shall prevent such board from
adopticg reasouable minimum or maximum age requirements for
positions which require extraordinary physical effort, except where
age limits for such positions are already prescribed by Jaw.
Section 3027 seems to be aimed at prohibiting age discrimination in
hiring. However, its language could be read to encompass a prohibition
against discrimination from continuing qualification
as a teacher, i.e.,
against compulsory retirement.
4 In various other contexts, the New York courts have consistently held
that retirement statutes or regulations are not inconsistent with or mod-
SUG6T
A-9
to decide these issues. Since the underlying federal claim
was properly dismissed, the denial of pendent jurisdic-
tion over the state claims was proper. United Mine Work-
ers v. Gibbs, 383 U.S. 715, 726 (1966); Chasteen v. Trans
World Airlines, Inc., 520 F.2d 714 (8th Cir. 1975). More-
over, pendent jurisdiction was properly denied because
the state courts are a more appropriate forum for these
issues. Pride v. Community Sch. Bd. of Bklyu, N.Y. Sch.
Dist. #18, 482 F.2d 257, 272 (2d Cir. 1973).
IV
Today’s decision is not intended as an endorsement of
compulsory retirement for teachers or compulsory retire-
ment in general. Rather, we are aware of the many older
Americans who continue to be able and eager to work
beyond age seventy. We are also aware of the debilitat-
ing effects that compulsory retirement has on many such
individuals, with regard to their economic situation, their
health, their outlook on life, and their continuing oppor-
tunities for fulfillment. However, in determining the de-
sirability of compulsory retirement, these considerations
ified by statutes providing for removal only for incompetency and/or
only after a hearing. See People ex rel. O’Brien ¥. Sccxnel, 53 A.D. 161,
65 N.Y.S. 832, aff'd, 164 N.Y. 572, 55 N.E. 1091 (1900) (Retirement
of fireman due to disability is not a “removal” for the purposes of a
statute requiring a hearing for removal for incompetency or miscon-
duct); Geary v. Philips, 53 Mise.2d 337, 278 N.¥.S.2d 506 (1967)
(Police: retiremect is not a removal without a hearing); Humbeutel v.
City of New York, 125 N.Y¥.S.2a 195 (Sup. Ct. 1953), cff’d, 283 A.D.
1011, 131 N.¥.S.2d 445 (1954), eff’é, 308 N.Y. 904, 126 N.E.24 569
(1955) (Police: retirement is not removal without cause barred by
statute).
5 Evidence documenting both the continved ability of older workers and
the hardships resulting from compulsory retirement is reported in the
legislative history of the 1978 amendments to the Ace Discrimination
in Employment Act of 1967, discussed infra. S.Rep. No. 95-193, 95th
Cong., Ist Sess., 3-4 (1977).
3068
A-10
must be weighed against the social goals that compulsory
retirement furthers. This is precisely the type of clash
of competing social goals that is best resolved by the
legislative process. The federal courts should not second
guess the wisdom or propriety of such legislative resolu-
tions as long as they are rationally based.
Congress has recently considered this issue and, after.
extensive hearings, has amended the Age Discrimination
in Employment Act of 1967.5 The amendments prohibit,
with some exceptions, the compulsory retirement of peo-
ple under seventy, and of federal employees at any age.”
The original Act requires the Secretary of Labor to make
annual reports concerning the effects of the Act, taking
into account demographic changes.* The 1978 amendments
impose on the Secretary the further duty of reporting, by
1981, on the effects of the amendments and the feasibility
of extending their coverage.? We note these developments
because we are persuaded that they reinforce today’s de-
cision. There is no question but that the passage of the
1978 amendments to the Age Discrimination in Employ-
ment Act was the result of a process that was fair, delib-
6 29 U.S.C. §612 et seg. (1976).
7 The Age Discrimination in Employment Act Amen@ments of 1978,
P.L. No. 95-256, §3(a) amending 29 U.S.C. §§631 and 633{a), and ¢5
amending 5 U.S.C. §8325 (1976) and repealing 5 U.S.C. $3322 (1976).
The 1978 amendments contain several exceptions. Tenured university
teachers and certain executives are excepted from coverage after age
65. P.L. No. 95-256, §3(2). Certain federal employees, including air
traffic controllers, law enforcement officers, firefighters, Alaskan Railroad
employees, and federal employees in the Panama Canul Zone, continue
to be subject to mandatory retirement. Id. §5, amending 5 U.S.C. §8335
(1976).
8 Section 13 of the Ago Discrimination in Employment Act of 3967, 29
U.S.C. §632 (1970).
9 Section 6 of the Age Discrimination ia Employment Act Amendments
of 1978, P.L. No. 95-256, amending {5 of the Age Di
Employment Act of 1967, 5 U.S.C. §624 (1976).
scrircination in
3069
A-11l ,
Pil
APPENDIX “* B
LOIS PALMER,
erate, and well informed. Moreover, Congress has provided Plaintiff
nd \ é inti
a mechanism for continually reassessing the effects and .
the wisdom of its actions on this issue. The superior abil- oa
ity of Congress to collect data and to resolve competing
o
social goals, as well as the flexibility resulting from its FRANK TICCIONE, BDWARD HAYES, BENUARM
GIAMBABIO, WILLIAM O'CONNELL, WILLIAM
ability to monitor the effects of its actions and to make GARGIULO, ROBERT JACOB, N. PAUL
adjustments accordingly, mark this issue as one which the : BUSCEMI, "and the School Board of
Constitution has appropriately left to the legislative pro- Copiague Union Free School District,
cesses, both state and federal.
Defendants.
Affirmed.
No. 75 C 2007.
United States District Court,
E.D. New York.
June 30, 1977.
Spizz & McEvilly, Community Legal
Assistance Corp., Hempstead, N.Y.,
for plaintiff; Jonathan Weiss, New
York City, Legal Aid for the Elderly
Poor, of counsel.
Henry A. Weinstein, Garden City,
N.Y¥., for defendants.
NEAHER, District Judge
A-13
3070
520—5-17-78 . USCA—4266
GARAKA PRESS, INC., 451 GREENWICH ST., NEW YORK, N. Y. 10013, (212) 226-1449
° A-12
t
This is an action seeking the
reinstatement of a kindergarten teacher
who was involuntarily retired because
she had reached seventy years of age.
The complaint alleges violations of
the First Amendment, the Equal Pro-
tection and Due Process Clauses, the
Older Americans Act, and various
State statutory and constitutional
provisions. Jurisdiction is asserted
under 28 UsS.C. §§ 1331 and 1343,
with pendent jurisdiction for the
State claims. Plaintiff has moved
for summary judgment and defendants
have cross~-moved to dismiss the
complaint for want of a substantial
federal question or for summary
judgment.
The facts are not in dispute.
Plaintiff, born in 1905, taught in
private nursery schools from 1943-59.
After two years at another public
school, she was hired in 1961 as a
kindergarten teacher in the Copiague
Union Free School District. At the
end of the 1963-64 school year she
became tenured under New York Education
Law § 3012.
On May 15, 1975, plaintiff, then
70 years old, was informed by
defendant N. Paul Buscemi, Super-
intendent of Schools in Copiague,
that she would be retired at the
end of the school year in accordance
with New York Education Law § 510(1)
(b), which states in pertinent part.
"Any member [of the teachers'
retirement system] who has attained
A-15
age seventy may be retired at his
own request or at the request of his
employer...." The School Board
Subsequently ratified plaintiff's
retirement without a hearing.
Plaintiff is willing and able to
work, and all evaluation reports of
her work were satisfactory. In her
most recent evaluation, on
March 10, 1975, plaintiff's principal
recommended that she be rehired
"[s]ubject to review of compulsory
retirement under N.Y. State
Educational Law.”
Defendants urge that the complaint
be dismissed for want of a
substantial federal question. Federal
claims are insubstantial only if
"prior decisions inescapably render
the claims frivolous." Hagans v.
Lavine, 415 U.S. 528, 538, 94 S.Ct.
A-16
1372, 1379, 39 L.Ed.2d 577 (1974).
A review of the pertinent decisions
shows this to be the case with respect
to plaintiff's claims.
In Massachusetts Board of Retirement
v. Murgia, 427 U.S. 307, 96 S.Ct. 2562,
49 L.Ed.2d 520 (1976), the Supreme
Court unequivocally rejected an equal
protection challenge to a statute
requiring State police officers to
retire at age 50. The rational
relationship test was applied to the
statute, for the aged is not a suspect
Class and a right of governmental
employment is not fundamental. Id.
at 2566-67, 96 S.Ct. 2562. The Court
held that, since physicai ability
generally declines with age, mandatory
retirement at age 50 rationally furthers
the State's interest in ensuring the
physical preparedness of its police.
A~-17
Id. at 2567-68, 96 S.Ct. 2562.
Murgia simply served to confirm
the Court's decisions in similar cases
in which it had dismissed the appeal
for want of a substantial federal
question, Campbell v. Aldrich, 305 U.S.
559, 59 S.Ct. 87, 83 L.Ed. 352 (1938);
McIlvaine v. Pennsylvania, 415
U.S. 986, 94 S.Ct. 1583, 39 L.Ed.2d
884 (1974), or summarily affirmed
dismissal of the complaint on the same
ground, Weisbrod v. Lynn, 420 U.S.
940, 95 S.Ct. 1319, 43 L.Ed.2d 420
(1975); Cannon v. Guste, 423 U.S.
918, 96 S.Ct. 257, 46 L.Ed.2d 245
(1975). All of these decisions rejected
equal protection attacks on mandatory
retirement statutes, and due process
arguments fared no better in Weisbrod
and McIlvaine. See Weisbrod v. Lynn,
383 F.Supp. 933, 936-37 (D.D.C. 1974).
A-18
On the basis of Weisbrod and
McIlvaine, the Court of Appeals for
this Circuit stated:
We are of the opinion that the
issue of age restrictions upon the
term of office of state judges
is properly one for the
legislative or electoral
processes of the State of
New York and that the effort to
clothe it in constitutional garb
is frivolous.
Rubino v. Ghezzi, 512 F.2d 431,
433 (2 Cir. 1975).
The Court of Appeals therefore
rejected as insubstantial the claim
that the mandatory retirement age
violates the Due Process and Equal
Protection Clauses and affirmed the
dismissal of the complaint for ,
want of a substantial federal
question.
Plaintiff argues tiat her claim
is not foreclosed by these decisions
because they dealt with mandatory
retirement statutes rather than a
A-i9
discretionary retirement statute such
as Education Law § 510(1)(b)-. When
faced with a similar challenge to
§ 510(1) (b), however, the Appellate
Division, Second Department, affirmed
dismissal of a 70-year-old school* 22.2...
teacher's complaint with the following
brief memorandum:
On the record in this appeal,
there is no evidence of
constitutional discrimination. A
mandatory retirement policy at
age 70 is not unconstitutional
under present standards, and
this record does not reveal
anything other than a statuto~
rily authorized mandatory retire-
ment policy.
Harren v. Middle Island Central
School No. 12, 49 A.D.2d 879,
373 N.Y.A.2d 20 (2nd Dept. 1975).
As in Harren, there is nothing in the
record of this action to distinguish
it from the mandatory retirement
cases decided by the Supreme Court.
Plaintiff also relies on a
suggestion by Justice Marshall, in
A-20
dissent in Murgia, that the majority
Opinion did not sanction a mandatory
retirement law for employees whose
jobs require mental alertness rather
than physical fitness. Murgia,
Supra, 96 S.Ct. at 2573 h. 8. This
comment does not aid plaintiff,
however, for a kindergarten teacher
Surely needs as much physical fitness
as mental alertness. In addition,
Justice Marshall's comment seems
questionable in light of the acceptance
of mandatory retirement statutes for
teachers in Campbell v. Aldrich, supra,
and for judges in Rubino v. Ghezzi,
Supra.
The remaining federal claims, which
are based on the First Amendment
and the federal policy against age
discrimination expressed in the Older
Americans Act, 42 U.S.C. § 3001, et
A-21
seg., are also insubstantial. The
First Amendment does not protect jobs
per se, and federal policy falling
short of a constitutional mandate
does not provide a basis for relief.
Weiss v. Walsh, 324 F.Supp. 75, 77-78
(S.D.N.¥. 1971), aff'd, 461 F.2d 846
(2 Cir. 1972), cert. denicd, 409 U.S.
1129, 93 S.Ct. 939, 35 L.Ed.2d 262
(1973).
Accordingly, defendants' motion
to dismiss for want of a substantial
federal question is granted.
SO ORDERED.
A-22
at?rEeepvizst * €
3n the
cinited States Court of Aoveale
For the Seventh Cirenit
No. 74-1579
JULIA GAULT, individually and on behalf of all others
Similarly situated,
Plaintiff-A ppellant,
v.
JAMES E. GARRISON, President, Board of Education,
School District 215, et al.,
Defendants-A ppellees.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 74 C 931—Frank J. McGarr, Judge.
DECIDED DECEMBER 20, 1977
Before BARNES, Senior Circuit Judge,1 SWYGERT and
PELL, Circuit Judges.
SWYGERT, Circuit Judge. Julia Gault, on behalf of
herself and others similarly situated, filed suit under 42
U.S.C. § 1983 challenging the constitutionality of
governmental mandatory retirement requirements.
Plaintiff contends that defendant school board’s policy of
1 The Honorable Stanley N. Barnes of the United States
Court of Appeals for the Ninth Circuit is sitting by designa-
_ tion.
A-23
2 No. 74-1579
forced retirement is unconstitutional as violative of both
equal protection (by discriminating against plaintiff on
the basis of age) and due process (by creating an
irrebuttable presumption and by terminating public
employment arbitrarily). Shortly after the complaint
was filed, the district court granted defendants’ motion
to dismiss and plaintiff appealed.?
After oral argument was heard, this court issued an
order staying the appeal pending a ruling in
Massachusetts Board of Retirement v. Murgia, 376 F.
Supp. 753 (D. Mass. 1974), prob. juris. noted, 421 U.S.
974 (1975). See 523 F.2d 205 (7th Cir. 1975). Following
the decision in Murgia, 427 U.S. 307 (1976), we ordered
the parties to file supplemental briefs. We now treat the
constitutional issues raised by plaintiff and, for the
reasons stated below, reverse the order of the district
court.
I
Although the facts were stated in our previous opin-
ion, a brief resume may be helpful. Upon reaching the
age of 65, plaintiff, a tenured biology teacher at Thorn-
ton Fractional Township South High School, located in
Cook County, Illinois, was informed by the district
school board that she would have to retire at the end of
the academic year.
The Illinois School Code of 1961, as amended, Chapter
122 of the Illinois Revised Statutes, does not require the
retirement of teachers at any age. It does provide,
however, that the tenure of public school teachers shall
end at age 65 and that any subsequent employment shall
be on an annual basis. Ill. Rev. Stat. ch. 122, § 24-11.
Furthermore, the School Code does not afford teachers
over 65 the extensive procedures which a school board
2 This case, though filed as a class action, was dismissed
before the question of class certification was reached.
No. 74-1579 3
— follow to dismiss or remove a teacher.? Jd. at § 24-
This statutory scheme is supplemented by defendant
school board’s policy which states that “a teacher who
reaches the age of sixty-five before the end of a school
year shall retire on that date following his 65th birthday
....” Poiicy No. 4146. Phis policy thereby goes a step
further than the School Code and removes all teachers
over 65 under the board’s jurisdiction from any con-
' sideration for this annual retention. It was pursuant to
this policy to which plaintiff was terminated.
II
Plaintiff contends that the board policy of compulsory
retirement violates her equal protection rights both sub-
Stantively and procedurally: first, by requiring those
over 65 years of age to retire, and second, by denying
those over 65 those procedures granted to any other
teacher upon termination. We note at the outset that this
case does not involve a claim of a right to government
employment, but rather concerns only the access to con-
tinued eligibility for such employment.
Our first task in assessing an equal protection claim is
to determine- the proper standard of judicial review.
Memorial Hospital v. Maricopa County, 415 U.S. 250,
253 (1974). The Supreme Court has employed at least
two standards of review: the traditional rational basis
test wherein classifications are constitutional if they
bear a rational relationship to a permissible state in-
terest, Dandridge v. Williams, 397 U.S. 471, 485-86
(1970), and the standard of strict judicial scrutiny
wherein classifications are constitutional only if they are
necessary to promote a compelling state interest. Dunn
’ This procedure for dismissing or removing s teacher in-
cludes a hearing, written notice of charges, a bill of par-
ticulars, representation by counsel, cross-examination of
witnesses, maintenance of a record of the proceedings, and a
decision by majority vote of all members of the board. II].
Rev. Stat. ch. 122, § 24-12. None of these protections were af-
forded plaintiff as she was over 65.
A-25
4 | No. 74-1579
v. Blumstein, 405 U.S. 330 (1972); Shapiro v. Thompson,
394 U.S. 618 (1969). The latter, more rigid, test is
applied when reviewing state-created classifications
which interfere with the exercise of a fundamental right
or involve a suspect classification. Sun Antonio Indepen-
dent School District v. Rodriguez, 411 U.S. 1, 16-17
(1973).
Which standard to apply in determining whether a
compulsory retirement provision denies equal protection
was answered in Massachusetts Board of Retirement v.
Murgia, 427 U.S. 307 (1976). The Court in that case held
that the right of governmental employment is not fun-
damental and that age does not constitute a suspect
class. Jd. at 313-14. Accordingly, the Supreme Court
held the standard of strict scrutiny inappropriate and
examined the mandatory retirement statute under the
traditional rational basis test. Our inquiry in this case,
therefore, is directed to ascertain whether the ar-
ticulated state interest is legitimate and whether the age
65 classification for the retirement of school teachers is
rationally related to furtherance of that state interest.‘
In Murgia a uniformed state policeman challenged a
state statute which forced him to retire at age 50. The
Court observed that the purpose identified by the state
was a desire “to protect the public by assuring physical
preparedness of its uniformed police.” 427 U.S. at 314.
The record included testimony presented to the trial
court pertaining to the rigors and demands of uniformed
olice activities as well as medical testimony concern-
ing the relationship of age to the ability to perform those
functions. Based upon this evidence, the Court concluded
4 Plaintiff urges this court to apply an intermediate or third
equal protection test, wherein the challenged law must bear a
“substantial relation” to the purpose it seeks to accomplish.
The Supreme Court seems to have used such a test in the
areas of discrimination based on sex and illegitimacy. See,
e.g., Trimble v. Gordon, 430 U.S. 762 (1977); Craig v. Boren,
429 U.S. 190 (1976); Mathews v. Lucas, 427 U.S. 495 (1976);
Reed v. Reed, 404 U.S. 71 (1971). We are compelled to decline
plaintiff's invitation as Murgia is clearly dispositive in this
regard.
A-26
No. 74-1579 5
that a clear rational relationship exisied between the
classification and its articulated purpose. Jd. at 315.
In following the Supreme Court’s analysis, we look
first for an identifiable state purpose in the statutory
termination of tenure and the local board’s mandatory
retirement of schoolteachers at age 65. Because this case
was dismissed shortly after the complaint was filed, no
evidence has been presented and no affidavits have been
filed; the court did permit plaintiff to file an “offer of
proof.”> The defendants have not identified the purpose
of the requirements in question; their briefs only hint
that the purpose may be to remove unfit teachers. In
Murgia, the Court called upon “the purpose identified by
the State” as that to which the age classification must
bear a rational relationship. Without such a purpose
demonstrated in the instant case, we cannot, absent
further proceedings, justify the challenged provisions.
Even if we could assume that the purpose of these
provisions is to prevent the retention of unfit teachers,
the requirements must fall. Again, unlike the situation
in Murgia, there has been no evidence presented to in-
dicate any relationship between the attainment of the
age of 65 and a schoolteacher’s fitness to teach. The
physical demands of teaching do not even begin to ap-
proach those found by the Supreme Court, upon credible
evidence, to be critical to the performance of uniformed _
state police duties. No evidentiary proof is necessary to
note that teaching is a profession in which mental skills
are vastly more important than physical ability. We can-
not assume that a teacher’s mental facilities diminish at
age 65. On the contrary, as suggested by plaintiff’s offer
5 A hearing on defendants’ motion to dismiss was set for May
17, 1974. On May 16, however, the district court advised
plaintiff's attorney not to bring to the courtroom the witnesses
scheduled to testify on her behalf. The next day, the district
court announced from the bench its ruling granting the mo-
tion to dismiss. Following this announcement, the court
granted leave to plaintiff to submit an offer of proof sum-
marizing the evidence which would have been presented had
the hearing gone forward. On May 22 the district court issued
its memorandum opinion and order.
A-27
6 | No. 74-1579
of proof, much in the way of knowledge and experience,
so helpful to the educational profession, is often gained
through years of practice.
Another distinction must be drawn between this case
and Murgia. Because of the nature of the duties re-
quired of the policemen in the latter case and the immi-
nent possibility of unfitness shown to be related to ad-
vancing age, failure to perform properly in any given in-
stance could become a matter of life or death. In con-
trast, if a teacher becomes unift, whether because of age
or other factors, it does not become a matter of such im-
mediacy that there is not time or opportunity to take ap-
propriate procedural steps for his or her removal. By us-
ing the procedures normally taken for the removal of a
teacher alleged to be unfit, there is greater guarantee
that unfit teachers will be removed while the rest will
_ be able to continue performing their jobs, putting to use
the experience and knowledge gained over the years.
It is no answer to say that a state “does not violate the
Equal Protection Clause merely because the
classifications made by its law are imperfect,” Dan-
dridge v. Williams, 397 U.S. 471, 478 (1970), when these
classifications cannot be shown to be even rationally
related to the objective the state is attempting to achieve
(still assuming arguendo such an objective can be shown
by the defendants). In Murgia, the Court found no in-
dication that the mandatory retirement provision had
“the effect of excluding from service so few officers who
are in fact unqualified as to render age 50 a criterion
wholly unrelated to the objective of the statute.” 427
U.S. at 316. Unlike the Court in Murgia, we cannot say
that the provisions in the instant case would eliminate
any more unfit teachers (assuming again that such is the
purpose) than a provision to fire all teachers whose hair
turns gray.
The decision in Murgia was based upon an evidentiary
record showing the state’s purpose and how the
challenged legislation related to that purpose. Here,
there is no record. We cannot uphold as constitutionally
valid a classification of public schoolteachers based upon
age without a showing that it rationally furthers some
identifiable and articulable state purpose.
A-28
No. 74-1579 7
III
Plaintiff’s equal protection claim has yet an ,
aspect. She contends that the lack of any Eade vetage
both the automatic termination of her tenure and her
mandatory retirement resulted in treatment unequal to
that given to any other teacher who is released. Both
tenured and probationary teachers under age 65 are
guaranteed procedural safeguards prior to any termina-
tion. This .‘tuation is similar to that in a recent case
decided by this court. In Miller v. Carter, 547 F.2d 1314
(7th Cir.), cert. granted, 45 U.S.L.W. 3690 (April 18
1977), we sustained a constitutional challenge to a City
of Chicago ordinance which barred persons convicted of
certain crimes from obtaining a public chauffeur’s
license. The ordinance further provided that a person to
whom a license had been issued might have his license
revoked after conviction of such an offense; however
revocation was not automatic but was subject to ad-
ministrative discretion. Thus the ordinance created two
classes receiving unequal treatment, the distinguishing
fact being whether a person was in possession of the
license at the time of his conviction, although the
members of both classes were similarly situated in that
the type of crime was identical. We found this to be an
irrational distinction and held it violati
protection. eld it violative of equal
Here, as in Miller, the classification
between those who are afforded and those rg
afforded procedural safeguards before their removal on
its face discriminates against persons who are Similarly
situated. Accordingly, we cannot sanction the total lack
of procedural equality suffered by teachers who have
reached the age of 65 without a record showing the
lig or absence of a justifiable and rational state
Because plaintiff's complaint states i
a claim that h
rights under the Fourteenth Amendment have ‘hava
violated, the order dismissing the complaint is reversed
and the cause is remanded for furthe ;
sistent with this opinion. r proceedings con-
8 | No. 74-1579
BARNES, Senior Circuit Judge, concurring.
Strict scrutiny is not.the proper test for determining
whether a mandatory retirement provision denies
appellee equal protection, because strict scrutiny of a
legislative classification is required only when the
classification impermissibly interferes with the exercise
of a fundamental right (cases cited in Murgia, Note 3),
or operates to the peculiar disadvantage of a suspect
class (cases cited in Murgia, Note 4). If mandatory
retirement for a fireman at age 50 does not interfere
with the exercise of his fundamental right neither will
mandatory retirement interfere with the desire or right
of a teacher to teach at age 65. Nor is a teacher within a
suspect class. Appellant here has no fundamental right
to teach, either at 65, or at any other age. Cf. San An-
tonio School District v. Rodriguez, 411 U.S. 1, 16 (1978).
Here we must examine the state’s classification under
the less strict rational-basis standard. To paraphrase
Murgia, “Since physical ability generally declines with
age, mandatory retirement at 65 serves to remove from
teaching those whose fitness for work presumptively has
diminished with age. This clearly is rationally related to
the state’s objective.”
Whether 65 or 60 or 70 is a proper age for teacher
retirement is not here our concern, Imperfect
classifications made by legislative bodies are not
rendered unlawful by their imperfections. Dandridge v.
Williams, 397 U.S. at 485, cited in Murgia, p. 316-17.
But to apply these principles to the facts of this case is
taieaainia “Gokanie no evidence has been presented at
any time (as Judge Swygert’s opinion points out), and we
have no factual basis upon which to Judge the issues or
to apply the law.
I concur in Judge Swygert’s opinion.
No. 74-1579 9
PELL, Circuit Judge, dissenting.
The majority opinion draws distinctions found to be
persuasively supporting the result reached in the opin-
ion between the present case and Massachusetts Board of
Retirement v. Murgia, 427 U.S. 307 (1976); however, a
fundamental distinction between the two cases appears
to be ignored. Because it is a significant distinction in
my mind, and for other reasons set out herein, I re-
spectfully dissent.
Murgia drew the line for compulsory retirement at
the age of 50, “a certain age in middle life,” id. at 313.
While for personal reasons, as well as documented
studies, I would be hesitant to say that the person who
has reached 65 years of age is necessarily elderly either
physically or mentally, I also think as a matter of law
that that age was so well established at the pertinent
time as a point at which retirement age was reached
that if it is to be changed, the change should be ac-
complished by the legislative branch and not by judicial
action purportedly under the Constitution.
In 1967, the Congress, being aware that approximate-
ly half of the states had enacted age discrimination
legislation, 1967 U.S. Code Cong. & Admin. News 2215,
enacted P.L. 30-302, sometimes referred to as the Age
Discrimination in Employment Act of 1967. In House
Report No. 805 on the pending legislation it was stated
that “the bill outlines a national policy against dis-
crimination in employment on account of age, provides a
vehicle for enforcement of the policy, and establishes
broad general guidelines for its implementation.” 1967
U.S. Code Cong. & Admin. News 2220. That national
policy insofar as age limitations were concerned was
stated to be “individuals who are at least forty years of
age but less than sixty-five years of age.” 29 U.S.C.
§ 631. In the statute itself the Congress stated that the
Act’s purpose was, inter alia, “to promote employment
of older persons based on their ability rather than age”:
and “to prohibit arbitrary age discrimination in employ-
ment...” 29 U.S.C. § 621(b). It appears plain that the
Congress by so stating the policy did not regard dis-
continuance of employment beyond the age of 65 to be
10 No. 74-1579
age discrimination of an arbitrary nature. Indeed,
House Report No. 805 indicates that the major concern
was not with the 65 year age standard but with the
lower limit, which had been lowered from 45 in the
original bill, with argument being considered that in
some occupations age discrimination could be found at a
lower point. Jd. at 2219.
That a legislative enactment establishes national
guidelines does not, of course, necessarily import con-
stutionality into those guidelines. Nevertheless, when
those guidelines are an interwoven part of a broader
pattern, as is obviously the situation in this country, of ©
pension and retirement plans and social security
statutes, the courts, it appears to me, should be extreme-
ly reluctant to tamper with one part of the broad social
scheme.
The Supreme Court has told us in Murgia, dealing
with compulsory retirement of state police officers at the
age of 50, that such action by a legisiature is presumed
to be valid, and that the judicial inquiry must employ a
relatively relaxed rational-basis standard reflecting
judicial “awareness that the drawing of lines that create
distinctions is peculiarly a legislative task.” 427 U.S. at
314. This approach to a “middle life” compulsory retire-
ment age directed at one specific occupation suggests
. that our examination of a compulsory retirement
procedure involving a significantly higher age max-
imum not only applicable to the particular occupation
but one generally applicable, and generally deemed ap-
propriate, should be on an a fortiori basis insofar as the
relativity of the relaxed rational-basis standard is con-
cerned.
The significance of a higher age equation with the
propriety of mandatory retirement was_ implicitly
recognized in the Murgia district court opinion by the
following observation of Judge Aldrich:
[W]e would anticipate the question of mandatory
retirement at age 70 not to be the same as at age
50, but perhaps we say this because of the in-
creasing difficulties that a plaintiff might have to
show that at that greater age the state had not
made out a factually rational argument.
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No. 74-1579 11
Murgia v. Commonwealth of Massachusetts Board of
Retirement, 376 F. Supp. 753, 756 n.9 (D. Mass. 1974).
In any event, just as the courts should dispose of cases
if possible on grounds other than by reaching con-
stitutional issues, the courts should also, it seems to me,
where the federal legislative picture demonstrates an
alertness to and an orderly resolution of a complex
societal problem, exercise restraint in intervening under
the constitutional cloak in the developmental process on
what could only be a piecemeal! basis.
In the present context, Congressional concern and con-
tinuing interest is clear. In the original Act, the
Secretary of Labor was charged with undertaking an
education and research program and was specifically
directed to recommend to Congress any measures he
deemed desirable to change the lower or upper age
limits. 29 U.S.C. § 622. While employers were not
prevented by the Act from taking action otherwise
prohibited where age is a bona fide occupational
qualification reasonably necessary to the operation of a
particular business, or where differentiation is based on
reasonable factors other than age, or where there is
observance of the terms of seniority systems or pension
and similar plans which are not subterfuges to evade the
purposes of the Act, or where there is discharge for good
cause, § 623(f), the Act makes age itself within the Act’s
limits an unlawful basis for discrimination. § 623(a). In
the 1974 amendments, it was provided that the defini-
tion of an employer included “a State or political sub-
division of a State and any agency or instrumentality of
a State or a political subdivision of a State”. 29 U.S.C.
§ 630(b).
Currently, we find that the legislative process is an
unintermitted one. Both the House and Senate have
passed amendatory versions which are now in con-
ference committee, the conferees having been appointed
late in October of 1977. It, inter alia, has been agreed by
both houses that the maximum age limit shall be 70
rather than 65. See CCH Lab.L.Rep., Employment Prac-
_tices, Rep. 30, October 20, 1977.
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12 . No. 74-1579
The comprehensive legislative scheme as it continues
to develop will not, of course, mean, as it does not now,
that every employee in every occupation is automatically
entitled to stay on to the maximum age limitation. This,
obviously, is on the assumption that legislation in the
future will continue to recognize § 623(f) factors permit-
ting under-maximum-age employment termination such
as good cause discharge, necessary occupational
qualification, and bona fide, non-subterfuge employee
benefit plans. The maximum age, however, as it is es-
tablished from time to time in the public interest
appears to me in and of itself to import rationality and
to preclude challenge by those exceeding the maximum.
Turning to the particular case before us, it is noted
that the Illinois Age Discrimination Act, as contrasted
to the federal statute and most state statutes, does not on
its face specify a maximum age. Kennedy v. Community
School District No. 7, Champaign County, 23 Ill. App.3d
882, 319 N.E.2d 243, 246-47 (1974). The court in
Kennedy, however, rejected a challenge to age 65 retire-
ment by a teacher not only on due process and equal
protection grounds but also under the Illinois Age Dis-
crimination Act pointing out that under that legislation,
similarly to the federal act, it was not intended to in-
terfere with the operation of non-subterfuge annuity and
pension plans. “Phe long existence of the statutory
system of annuities and pensions and its general applica-
tion to teachers throughout the State demonstrate that
the ‘retirement system’ is not a subterfuge to evade the
Age Discrimination Act.” 319 N.E.2d at 247.
In the case before us, there is not only the rational
relationship between the plaintiffs employment status
and a non-subterfuge employee benefit plan but also she
had gone beyond the maximum age so specified as a
matter of national policy at the time of her termination,
even though at the time state employees were not includ-
ed within the federal statutory coverage.
Further, under the relaxed Murgia standard which
would be applicable to a person past 65, it appears to
me, although it was not expressly articulated by the
defense, that the age 65 classification, aside from any
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No. 74-1579 | 13
aspect of declining physical or mental vigor, rationally
furthers an educational purpose of the state. It is com-
mon knowledge that there is a growing surplus of
teachers with the forecast that this surplus will continue
to grow in size with many recent graduates majoring in
education being unable to find employment. With the
lifting of compulsory retirement and the continuing in
employment of teachers who otherwise would have
retired, it is reasonably foreseeable that those pursuing
higher education will turn to other lines of endeavor
with the result that when sheer physical or mental dis-
ability, or death, thins the ranks there will not be quan-
titative, and possibly qualitative, replacements.
I would hold therefore that the plaintiff has failed to
demonstrate an infringement of her constitutional equal
protection rights. She also has raised on this appeal a
claim of due process violation, both procedural and sub-
stantive. I discern no merit in this attack. Board of
Regents of State Colleges v. Roth, 408 U.S. 564 (1972),
Perry v. Sinderman, 408 U.S. 593 (1972); Weinberger v.
Salfi, 422 U.S. 749 (1975).
A true Copy:
Teste:
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA 4272—Midwest Law Printing Co., Inc., Chicago—12-20-77—275
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.