Petition for Writ of Certiorari — Cleveland Bd. of Ed. v. LaFleur

In the Supreme Court of the U

OCTOBER TERM, 1972

No. . os vr 4 4

—_—_—_—_

——— —

CLEVELAND BOARD OF EDUCATION et al.,

Petitioners

—Vv—

JO CAROL LA FLEUR et al.,

Respondents

——~

eee

PETITION FOR A WRIT OF CERTIORARI

To THE UNrtTED STATES CourT OF APPEALS

For THE SixtTH Circurr

Cuarves F. CLARKE

WiuuiamM C..HARTMAN

ARTHUR A. KOLA

1800 Union Commerce Building —

Cleveland, Ohio 44115

Counsel for Petitioners

Of Counsel:

SQguiRE, SANDERS & DEMPSEY

1800 Union Commerce Building

Cleveland, Ohio 44115

i

TABLE OF CONTENTS|

Citation to Opinions Below 1

POUL SCC ci 2

Question Presented for Review 2

Constitutional Provision Involved — 2

Statement of the Case. g

Reasons for Granting the Writ = = 4

1. The decision below is in conflict with the

decision of this Court in Reed vy. Reed 4

2. The decision below is in conflict with Struck

v. Secretary of Defense, a Ninth Circuit deci-

sion presently under review in this Court ___ 6

3. The decision below is in conflict with Schatt-

man v. Texas Employment Commission, a

decision of the Fifth Circuit __ ee 6

4. This Court should squarely decide the im-

portant question of Federal Law involved in

CERES CG erect ce 7

Conclusion 9

Appendix:

Opinion and Order of District Court = == AI

Opinion of the Court of Appeals. = sCA-14

Order on Motion for Rehearing and Suggestion

for Rehearing En Banc SCA 206

Certificate of Service A-26

ii

TABLE OF AUTHORITIES

Cases

LaFleur v. Cleveland Board of Education, 326 F.

= Supp. 1208 (E.D. Ohio 1971) 0 1

® Reed v. Reed, 404 U.S. 71 (1971) _.. 4,568

* Dandridge v. Williams, 397 U.S. 471 (1970)... 5

* Goesaert v. Cleary, 335 U.S. 464 (1948) 5

® Struck v. Secretary of Defense, F.2d. _; (9th

Cir., 1971) 72-178 on the- docket of this Court,

% (cert. granted Oct. 24, 1972) 41 Law Week 3220 6

Schattman v. Texas Employment Comm., 459 F. 2d.

@ 32 (5th Cir, 1972) 6,7

% Cohen v. Chesterfield County School Bd., .__. F. 2d.

, (4th Cir., Sept. 14, 1972, Case No. 71-1707.

Mo. for rehearing and suggestion for rehearing

en banc pending, Op. below, 326 F. Supp. 1159

> (E.D. Va. 1971)) ~ ees : 8

} Green v. Waterford Bd. - Ed., 5 Employer F Prac-

= tices Dec. Para. 7979 (D.C. Conn. 1972) 8

*Cerra v. School Dist., 4 Fair ane Practices Cases

> 79 (Pa. Com. Ct. ~1972) Pe eescssise 8

Griggs v. Duke Power Co., 401 U.S. 424 4 (1971) . 8

CONSTITUTION, STATUTES AND RULES

U.S. Const. Amend. XIV. Sec. 1 2

937 Fed. Reg. 6837

429 Code of Fed. Reg. 1604.10(b)

328 U.S.C. Sec. 1254(1)- nn

942 USC. Sec. 1983 (1970)

28 U.S.C. Sec. 1343(3) (4) oo

IPL. 92-261; 86 Stat. 103 (1972) oo

on nv Pb Oo OW Ww

SPORE anagem |

TREATISES AND LAW REVIEW ARTICLES

“Sex Discrimination and Equal Protection: Do We :

Need a Constitutional Amendment”, 84 Harv. L.

Rev. 1499 (1971) n-nonane ene 5

“The Equal Rights Amendment: A Constitutional

Basis for Equal Rights For Women’, Brown, et

al., 80 Yale L.J: 871 .

Wee Pacs Frets LE

1

In the

Supreme Court of the United States

OCTOBER TERM, 1972

No...

CLEVELAND BOARD OF EDUCATION et al.,

Petitioners

—~vy— :

JO CAROL LA FLEUR et al.,

Respondents *

PETITION FOR A WRIT OF CERTIORARI ;

To THE Unirep States Court oF APPEALS :

For THE Sixty Cigcurr :

The petitioner prays that a writ of certiorari issue to _

review the judgment of the United States Court of Ap-.

~ peals for the Sixth Circuit reversing, with one Judge dis- —

senting, a decision of the United States District Court 4

for the Northern District of Ohio, Eastern Division, which :

had dismissed respondents complaints. ;

4

o

CITATION TO OPINIONS BELOW :

The opinion of the United States Court of Appeals is as E

yet unreported. It is set forth in the Appendix, infra, at pp. ©

A-14. The opinion of the District Court is reported in 326 .

F. Supp. 1208 and is set forth in the Appendix, infra, at pp.»

A-l. |

ELT LT TET TT CLT TEE TT TL TT I TTT TN LT ETT TT a ES

4

pounds and are subject to fears of miscarriage, difficulty

in labor and abnormalities in their child that, in the stress

situation of teaching in public school, makes them not as

able to fulfill their duties as when not pregnant.

All of the above testimony was undisputed.

REASONS FOR GRANTING THE WRIT

The petition for certiorari should be granted because

the decision below is directly in conflict with a very

recent decision of this Court and in conflict with two very

recent decisions of other circuits, one of which is soon to

be heard by this Court since certiorari has been granted.

The question involved is an important Constitutional one

which affects almost every school district in the United

States.

1. The decision below is in conflict with the de-

cision of this Court in Reed v. Reed.

After this case had been argued in the Sixth Circuit

but before a decision had been rendered, this Court decid-

ed the landmark case of Reed v. Reed, 404 U.S. 71 (1971).

In Reed this Court struck down an Idaho statute which

gave preference to men in Probate Court appointments.

This Court held the statute was purely arbitrary and un-

reasonable. However, this Court adopted the standard of

reasonableness as that by which statutory sex classifica-

tion should be judged, for Fourteenth Amendment pur-

poses. This Court said:

“A classification ‘must be reasonable, not arbi-

trary, and must rest upon some ground of difference

having a fair and substantial relation to the object of

the legislation, so that all persons similarly circum-

stanced shall be treated alike’ ” 404 U.S. 71, 76.

BL SRS RB A LRT is a at

a See a Ms Te P A RED AIR SH RN RL OLN ie Bo eS

This Court did not adopt nor comment upon, although

urged to do so by “Women’s Liberation” groups, the stand-

ards by which discriminations based on race are judged for

Fourteenth Amendment purposes, i.e., the “strict scrutiny”

test which cancels the normal presumption of constitution-

ality, removes the burden of proof from the plaintiff chal-

lenging the regulation and places a heavy burden on the

governing body which is attempting to justify the differen-

tial treatment. “Sex Discrimination and Equal Protection:

Do we need a Constitutional Amendment” 84 Harv. L. Rev.

1499, 1502-1516 (1971) Brown, et al., “The Equal Rights

Amendment: A Constitutional Basis for Equal Rights For

Women,” 80 Yale L.J. 871.

Reed had been anticipated by Dandridge v. Williams,

397 U.S. 471 (1970), where this Court clearly called a halt

to further extension of the strict scrutiny rule into state

regulation of social and economic matters. Indeed, the ma-

jority opinion in Dandridge relies on Goesaert v. Cleary,

335 U.S. 464 (1948), which upheld a sex-based classifica-

tion prohibiting female bartenders, 397 U.S. at 485.

While the opinion below in the case at bar pays lip

service to Reed by quoting a passage from it (not the pas-

sage quoted above which establishes the rule of reasonable-

ness), it ignores the rule of Reed and holds the maternity

leave rule void for “overbreadth”. The majority opinion

quotes a short excerpt from the medical testimony and

reaches the unjustified and incorrect conclusion that the

medical evidence “under no construction of this record”

supports the maternity leave rule. Fortunately, the dissent-

ing opinion of Chief Judge Phillips contains a more ac-

curate summary of the medical evidence on the complica-

tions, disorders and discomforts of pregnancy. What the

Sixth Circuit majority has done is to adopt the strict scrutiny

rule for a sex discrimination case and ignore the mandate

of this Court in Reed.

6

2. The decision below is in conflict with Struck v.

Secretary of Defense, a Ninth Circuit decision present-

~ ly under Review in this Court.

This Court has recently, on October 24, 1972, granted

certiorari in the Ninth @cuit case of Struck v. Secretary

of Defense, case number 72-178, on the docket of this

Court, 41 Law Week 3220. The Ninth Circuit had upheld

an Army Air Force regulation that required resignation

from service for a pregnant female officer.

The majority in the Court below attempted to dis-

tinguish the Struck case as being one which dealt with

“pregnancy of a female officer in a war zone’, thus imply-

ing that a female officer in a.war zone somehow did not

have the same Equal Protection rights that a pregnant

school teacher had. If Struck was correctly decided by the

Ninth Circuit, and this Court is about to inquire into that,

then the decision of the majority below in the case at

bar is in conflict with it. -

3. The decision below is in conflict with Schatt-

man v. Texas Employment Commission, a decision of

the Fifth Circuit.

In Schattman v. Texas Employment Commission, 459

F. 2d. 32 (March, 1972) the Fifth Circuit upheld a man-

datory maternity leave rule. The Fifth Circuit reviewed

the medical testimony before it which was very similar to

the medical testimony in the case at bar. It then applied the

rule of reasonableness of Reed v. Reed and concluded that

the regulation was valid.

The Sixth Circuit majority attempted to distinguish

Schattman on the ground that the mandatory maternity

leave rule in that case was not as onerous as that of Cleve-

land since it applied only at the seventh instead of the

fifth month of pregnancy. The majority opinion is in error.

The Schattman opinion covered not only terminations at

7

the end of the seventh month of pregnancy, but also termi-

nations at the end of the fifth, thus making it practically

identical with the Cleveland rule. At p. 40 of Schattman

appears this statement:

“The record further shows that one Texas agency

terminates its women employees at the end of the

fifth month of pregnancy and others at the end of

six months. Still others terminate at the end of the

seventh month.”

Furthermore, the Cleveland rule is not as onerous as

the Schattman rule because Cleveland provides for auto-

matic reinstatement at the end of the maternity leave

while Schattman’s rule does not. The Schattman court

found no Constitutional infringement in these varying

times for application of the rule nor should it. The true

criterion is whether the evidence establishes that the rule

is reasonable and bears a fair and substantial relation

to the object of the legislation.

The dissent in the Sixth Circuit in the case at bar

states it thus:

“In my view it is not the prerogative of this Court

to determine whether a better regulation could be

promulgated or wheffer a shorter period of time than

the end of four months of pregnancy should be pro-

scribed. We do not sit as a super Board of Education.

Our concern is whether the regulation creates an arbi-

trary or unreasonable classification wholly unrelated to

the objectives sought to be advanced by the Board

of Education in adopting it. In my opinion we should

not strike down the regulation because it ‘may be un-

wise, improvident, or out of harmony with a particular

school of thought, See Dandridge v. Williams, 397

U.S. 471, 484.” :

4. This Court should squarely decide the impor-

tant question of Federal Law involved in this case.

8

The important question of Federal Law involved in

this case is whether statutory differentials based on sex

are to be judged, for Fourteenth Amendment purposes, by

the standard of reasonableness. Reed applied that standard

but did not, in so many words, expressly reject the “strict

scrutiny” standard applied in race discrimination cases. The

Court below, as the dissent points out, limited or misread

Reed. The question is an important one. Already the Fourth

Circuit has adopted th. language of the Court below in de-

ciding a similar case, Cohen v. Chesterfield County School

Board, ____ F. 2d. _.. , Sept. 14, 1972, case No. 71-1707,

motion for rehearing and suggestion for rehearing en banc

pending, opinion below, 326 F. Supp. 1159 (E.D. Va.

1971). Chief Judge Blumenfeld of the District of Con-

necticut has rejected the District Court opinion in Cohen

and expressly adopted that of Judge Connell, the District

Judge in this case, Green v. Waterford Board of Educa-

tion, 5 Emp. Pr. Dec. para. 7979, as has the Pennsylvania

Commonwealth Court, Cerra v. School District, 4 Fair

Emp. Pr. Cases 79 (1972). Lastly, the question is important

in the light of the Equal Employment Opportunity Act of

1972, P.L. 92-261, which, as amended, now applies to pub-

lic school employment, Sections 701 and 702 of P.L. 92-

261. One week after the passage of this 1972 act the Equal

Employment Opportunity Commission issued new rules

containing “guidelines” on mandatory maternity leaves. 37

Fed. Reg. 6837. These guidelines make it a prima facie vio-

lation of Title VII for an employer to exclude employees

“from employment . . . because of pregnancy . . .” 29 Code

of Fed. Reg. 1604.10(b). These guidelines do not have

the force of Federal Law, although probably entitled to

“great deference’, Griggs v. Duke Power Co., 401 U.S. 424.

Surely it is important for this Court to examine, at

this time, in the light of conflicting judicial decisions and

administrative fiat, whether the rule of reasonableness is

9

to be appliegdwie statutory sex classifications in all situa-

tions.

CONCLUSION

For the reasons set forth above, this petition for a

writ of certiorari should be granted.

Respectfully submitted,

CuHaARLES F. CLARKE,

WituiAM C. HarTMAN,

ArTHuR A. KOLA

1800 Union Commerce Building

Cleveland, Ohio 44115

Counsel for Petitioners 4

Of Counsel:

SgumRE, SANDERS & DEMPSEY

1800 Union Commerce Building

Cleveland, Ohio 44115

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APPENDIX

OPINION AND ORDER OF DISTRICT COURT.

Nos. C 71-292, C 71-333

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

JO CAROL LA FLEUR

_ Plaintiff

v.

CLEVELAND BOARD OF EDUCATION et al.

Defendants

CsA ells ft) eat dO

ANN ELIZABETH NELSON

Plaintiff

Vv.

CLEVELAND BOARD OF EDUCATION et al.

Defendants

TRS SS

MEMORANDUM OPINION AND ORDER

ConNELL, District Judge

This case has been presented to this Court asking

for injunction against the defendant, Cleveland Board of

Education, from enforcing a regulation of the Cleveland

School Board prohibiting teachers who become pregnant

from teaching their classes past the fourth month of preg-

nancy.

A-2

The plaintiffs in the case, Jo Carol La Fleur and

Ann Elizabeth Nelson are teachers in the Cleveland public ,

school system. Both teachers are married and pregnant;

Mrs. La Fleur is expecting birth of her child sometime

from the mid to the end of July of this year, while Mrs.

Nelson expects her child on August 26, 1971.

‘Mrs. Jo Carol La Fleur, C 71-292, is a teacher at

Patrick Henry Junior High School and has taught her

class from September 1970 until March 12, 1971, when,

due to the enforcement of the school board regulation, she

was asked to discontinue her duties due to her pregnancy.

The plaintiff, La Fleur, taught a seventh grade class com-

posed exclusively of girls who are designated as under-

achievers or problem children. This class is called a

“project transition” class which is supervised and operated

by the Cleveland public schools and partially funded with

Federal money. This class is composed exclusively of

girls, about twenty-five in number, who are to be given

special attention for purposes of making them ready for

the eighth grade in school. Mrs. La Fleur did not request

the maternity leave, rather the regulation was enforced

as to this plaintiff and her maternity leave was involun-

tary. Presently, in her absence, the class is being taught

by a substitute teacher.

The plaintiff, Ann Elizabeth Nelson, C71-333, is a

French teacher at Central Junior High School. She has

taught French to seventh, eighth and ninth grade students

since September 1970. Mrs. Nelson reported her preg-

nancy to her principal on January 29, 1971, and applied

for maternity leave.

This case came on for hearing on April 19, 1971.

The issues being identical in nature, the cases were tried

and submitted together and both will be decided in this

memorandum and order.

A-3

The regulation in question concerns maternity leaves

of absence for teachers and is stated on pages 20-21 of

the teachers handbook, Joint Ex. 1. The regulation pro-

vides that:

“Any married teacher who becomes pregnant and

who desires to return to the employ of the Board at

a future date may be granted a maternity leave of

absence without pay.”

The application of this regulation provides that the

absence shall bé‘effective not less than five months before

the expected date of the normal birth of the child. Further,

the regulation states that in application; this leave of

absence shall be effective not less than five months before

the expected date of the normal birth of the child, and

application for such leave to the superintendent at least

two weeks before the effective date of the leave of absence.

[1] The plaintiffs contend that this regulation dis-

criminates against the plaintiffs as female employees with

respect to their employment and deprives them of their

“rights, privileges and immunities secured by the Consti-

tution and laws of the Civil Rights Act of 1871, (42 U.S.C.

§ 1983).” Plaintiffs pray this court grant a declaratory

Judgment ruling that the policies and practices of the

school board are unlawful, and further the plaintiffs

request the granting of a preliminary and permanent

injunction enjoining the Cleveland Board of Education

from discriminating against the plaintiffs on the “basis of

sex with respect to the terms and conditions and privileges

of her employment and compensation thereof in depriva-

tion of her rights, privileges and immunities secured by the

United States Constitution and laws and the Civil Rights

Act of 1871.”

The defendants maintain that the regulation is a

“valid exercise of the school board’s statutory authority to

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make rules and regulations for its government and the

| government of its employees and the pupils of the school,

pursuant to Ohio Revised Code Section 3313.20.” The

defendants further contend that “the maternity leave

policy violates no constitutional rights of the plaintiff and

is not discriminatory in any sense, let alone a per se dis-

crimination based wholly on sex.”

This Court reads the complaint as being brought

pursuant to 42 U.S.C. § 1983 for an alleged violation of

the plaintiffs’ guarantee of equal’ protection under the

Fourteenth Amendment to the United States Constitution.

The jurisdiction of this Court is invoked pursuant to

28 U.S.C. § 1343; giving the district court original juris-

diction to hear cases for redress of .deprivations arising

under color of State law for alleged violations of privileges

or immunities secured by the Constitution of the United

States or by any act of Congress providing for the equal

rights of citizens.

It is necessary to point out that the plaintiffs have not

brought this action pursuant to Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e et seq.

The facts show that the maternity regulation in

question was adopted in the early fifties upon the request

of Dr. Mark C. Schinnerer, Superintendent of the Cleve-

land public schools. Prior to this time no maternity leave

regulation had been in effect. The rule as it appears today

is essentially the same as it was when adopted. The change

in the rule now permits the mother to return at the begin-

ning of the semester following the age of three months

of the new child rather than the six months as previously

provided. Also, the regulation now asks for one month’s

notice of pregnancy leave prior to the termination of em-

ployment rather than two weeks’ notice as stated in the

regulations as it now appears,

A-5

The evidence shows that prior to the rule, the teachers

suffered many indignities as a result of pregnancy which

consisted of children pointing, giggling, laughing and

making snide remarks causing interruption and _ inter-

ference with the classroom program of study. The evidence

shows that there were numerous reports of similar inci-

dents which brought about the need for the Board of

Education to prevent the continuance of this disruptive

situation.

The evidence further shows that there were many

instances where teachers refused to voluntarily withdraw

from teaching until the birth of the child; and although

no child was born in the classroom, a few times it was

very close. The evidence shows that in one instance

where a teacher’s pregnancy was advanced, children in a

Cleveland junior high school class were “taking bets on

whether the baby would be born in the classroom or in

the hall.” Dr. Schinnerer testified that the purpose of this

rule was to protect the teacher and maintain the con-

tinuity of the classroom program; the prevention of dis-

ruption in the educational process. When the regulation

was presented to the Board of Education for adoption, at

a public meeting, the vote of the Board of Education was

unanimous.

The Cleveland Board of Education is concerned with

the well-being of over 5800 teachers, of which 3774 are

women. It is further pointed out that fifty percent of these

women are of childbearing age, and that an average of

225 teachers are on maternity leave at all times.

A plaintiffs’ witness testified that the incidence of

violence in the Cleveland schools had increased steadily

over the last ten vears. The concurring evidence of Mr.

Julius Tanczos, Supervisor of Secondary Organization of

the Cleveland public schools shows that there were 256

A-6

assaults upon teachers by pupils and others, within the

school buildings in the 1969-70 school year. The record

shows that up to the date of the lawsuit, 140 such assaults

had already taken place. The school system classifies an

assault as the physical contact with the person or the

threatening of a teacher with a weapon. This year alone,

there has been the confiscation of 46 guns and 18 knives

in the Cleveland public schools. Further it is shown that

there were 136 teachers accidentally injured as the result -.

of falls in corridors and hallways during the 1969-70 school

year. .

The duties of a teacher in the Cleveland public

schools require her to be on her feet much of the day, and‘

aside from teaching, they include the maintenance of order’

in the classrooms and the supérvision of the movement of

students in the halls, corridors and sometimes in the cafe-

terias. In addition to the teachers, the public school system

employs 132 security guards which are stationed in the

secondary schools, grades seven thru twelve, for, the

specific purpose of maintaining order and keeping out-

siders from entering the school building.

’

With respect to the health of a pregnant teacher,

during a normal pregnancy, the woman should gain be-

tween fifteen and twenty pounds. Pregnancy is a normal

condition; and these individuals may continue to lead

normal lives, however, the evidence shows complications

can arise and the resulting effects can be very serious.

The evidence shows that toxemia occurs in as high

as ten percent of pregnancies. This condition can occur

slowly and may be unforeseen and will prohibit the indi-

vidual from working until the condition is brought under

control. The more serious complication of placenta previa

occurs in one percent of the pregnancies and this condition

is very serious and its gravity greatly increases should

it occur after the sixth month. This condition can be

A-7

brought about by a sudden or violent physical exertion

and can result in the woman’s death; immediate hospitali-

zation is required.

It is further shown that the frequency of urination

increases during the last three months of pregnancy, the

woman’s agility is impaired, and strenuous, sudden, physi-

cal exertion is forbidden. :

The evidence shows that the primary purpose for the

initiation of this rule was to protect the continuity of the

classroom program. The school board maintains this rule

in an attempt to bring the disruption of the classroom

program to a minimum. They further maintain that use

of the one month advance notice requirement gives the

school board the most accurate indication as to when the

teacher will discontinue her duties and the new instructor

will assume the responsibility of the study program. The

purpose is also to allow the new teacher to become familiar

with the classroom program and the students under the

guidance of the original teacher who is about to depart.

Furthermore, the purpose is to give the school board

notice so that the original teacher’s unexpected and sudden

leave will not occur, and thus guaranteeing classroom con-

tinuity and providing the best possible safeguard against

the disruption of the students’ education. The intended

purpose of the section in the regulation which permits the

teacher to return at the beginning of the regular school

semester following the child’s age of three months is

designed to protect the health of the mother and the child

and assure continuity of the classroom program.

The Cleveland Board of Education is authorized to

initiate such rules and regulations pertaining to employees

and pupils as are necessary for the operation of its govern-

ment. See Ohio Revised Code § 3313.20. The regulation

in question had been made pursuant to this state statute

=e

A-8

and from this state action the Fourteenth Amendment

question comes before this Court.

In Morey v. Doud, 354 U.S. 457, 463-464, 77 S.Ct.

1344, 1349, 1 L.Ed.2d 1458 (1954) the Court summarized

the rules for testing discrimination under the Fourteenth

Amendment and states as follows:

“The equal protection clause of the Fourteenth

Amendment pa not take from the State the power

to classify in the adoption of police laws, but admits

of the exercise of a wide scope of discretion in that

regard, and avoids what is done only when it is

without any reasonable basis and therefore is purely

arbitrary. 2. A classification having some reasonable

basis does not offend against that clause merely be-

cause it is not made with mathematical nicety or

because in practice it results in some inequality.

3. When the classification in such a law is called in

question, if any state of facts reasonably can be con-

ceived that would sustain it, the existence of that state

of facts at the time the law was enacted must be

assumed. 4. One who assails the classification in such

a law must carry the burden of showing that it does

not rest upon a‘reasonable base, but is essentially

arbitrary. Lindsley v. National Carbonic Gas Co.,

220 U.S. 61, 78-79, [31 S.Ct. 337, 55 L.Ed. 369] (1911).

In speaking of the “Equal Protection” clause of the

Fourteenth Amendment, the Court in McGowan v. Mary-

land, 366 U.S. 420, 425, 81 S.Ct. 1101, 1105, 6 L.Ed.2d

393 (1960) stated:

“the Court has held that the Fourteenth Amendment

permits the States a wide scope of discretion in

enacting laws which affect some groups of citizens

differently than others. The constitutional safeguard is

offended only if the classification rests on grounds

wholly irrelevant to the achievement of the State’s

objective. State legislatures are presumed to have

acted within their constitutional power despite the

fact that, in practice, their law results in some in-

A-9

equality. A statutory discrimination will not be set

aside if any state of facts reasonably may be con-

ceived to justify it.”

In Williams v. McNair, D.C., 316 F. Supp. 134, 136

(1970) a three judge panel in deciding whether men have

the right to gain admission to an all girl’s college said:

“The Equal Protection Clause of the Fourteenth

Amendment does not require identity of treatment for

all citizens, or preclude a state, by legislation, from

making classifications and creating differences in the

rights of different groups. It is only when the dis-

criminatory treatment and varying standards, as cre-

ated by the legislative or administrative classification

are arbitrary and wanting in any rational justification

that they offend the Equal Protection Clause.” (Cita-

tions omitted.)

Limitations placed upon women have been held as

non-discriminatory. In Muller v. Oregon, 208 U.S. 412,

28 S.Ct. 324, 52 L.Ed. 551 (1908) the Court in deciding

upon a work hour limitation statute pertaining to women

took into consideration the differences in the sexes and

said:

“The two sexes differ in structure of body, in the

functions to be performed by each, in the amount of

physical strength, in the capacity for long continued

labor, particularly. when done standing. the influence

of vigorous health upon the future well-being of the

race, the self-reliance which enables one to assert

full rights, and in the canacity to maintain the struggle

for subsistence. This difference justifies a difference in

legislation, and upholds that which is designed to

compensate for some of the burdens which rest

upon her.”

The Court in Seidenberg v. McSorleys’ Old Ale

House, Inc., D.C., 317 F.Supp. 593 (1970), found no justi-

fication for a rule which excluded women as potential

customers in an ale house while giving preference to men.

A-10

This court finds that the enormous task of providing

an education for thousands of young students, and the

regulations enacted in the furtherance of this purpose has

no relevance to a regulation enacted by an ale house pro-

hibiting the sale of alcoholic beverages to women and

will be given no weight by this Court.

The plaintiffs cite Schattmann v. Texas Employment

Commission, 3 CCH para. 8146, p. 6459 (W.D.Tex.1971)

in which jurisdiction for relief is based upon Title VII

of the Civil Rights Act of 1964, § 2000e et seq. of Title

42 U.S.C., as earlier pointed out, this is not the basis of

jurisdiction in the instant case and the resulting difference

in the applicable test is afforded little consideration. Fur-

thermore, Schattmann did not involve a situation in which

the education of children presented a most important issue.

In Schattmann, supra, p. 6460, the stipulation that the

plaintiff “was a permanent desk worker whose job entailed

no significant physical exertion or personal contact with

the public” could not be further from the necessary de-

mands ofa junior high school teacher responsible for the

education of students in the Cleveland schools.

[2] The plaintiffs maintain that the traditional “rea-

sonable basis test”, Lindsley, supra, is not applicable in

this case. Their contentions being that Shapiro v. Thomp-

son, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969),

requires that for this Court to uphold the regulation in

question the states meet the burden of showing a com-

-pelling state interest. In Shapiro, what. was ‘in. question

_was the plaintiffs right to travel in interstate commerce

and its resulting qualification for public assistance. In this

instance the Court stated on page 638, 89 S.Ct. on page

1333:

“Since the classification here touches on the funda-

mental right of interstate movement, its constitution-

A-ll

ality must be judged by the stricter standard of

whether it promotes a compelling state interest.”

The Shapiro case requires a stricter standard in judging

cases involving fundamental rights. However, allegations

alone are not the criteria for automatic application of this

standard.

[3] The plaintiffs, citing Shapiro, presume their

contentions are of fundamental concern preempting the

considerations of the school board and giving rise to the

application of this stricter standard. The primary duty of

the school board is to educate students, and if necessary,

regulations may be enacted in the furtherance of this

function. Education is the right of a child, and the school

board is before this Court protecting these rights which

involved the thousands of students within its jurisdiction.

Speaking of this right, the Supreme Court stated in

Brown, et al. v. Board of Education of Topeka, et al., 347

U.S. 483, 493, 74 S.Ct. 686, 691, 98 L.Ed. 873 (1954) that:

“Such an opportunity, where the state has undertaken

to provide it, is a right which must be made available

to all on equal terms.”

_ [4] The rights in this case weigh most heavily with

the students, and this Court holds that those assaulting

this most serious concern of the school board must meet

the traditional equal-protection test of showing that the

regulation is without a reasonable basis. _

The Cleveland public schools had operated prior to

the early 1950's without this maternity leave rule, and

the experiences were such that the Board was compelled

to adopt a regulation to remedy this impediment to its

educational function.

This requirement of maternity leave gives the school

the best assurances that sudden disruption of the stu-

A-12

dents’ classroom program due to an unforeseen complica-

tion in the teacher’s condition will be minimized. The

requirement of advance notice of termination also allows

time for a substitute teacher to work and train with the

intended class prior to assuming her full responsibilities,

further maintaining continuity in the classroom program.

The provision for resumption of employment after the

child’s birth serves the purposes of maintaining classroom

continuity and protecting the health of the mother and

child.

This regulation has minimized the classroom distrac-

tions and disruptions which had occurred prior to its

adoption, further attesting to its necessity and reasonable-

ness, and this court so finds.

The problem of the teacher’s health and safety, before

and after the child’s birth, is of itself a valid concern of

the school board aside from its interest in the students’

education.

In an environment where the possibility of violence

and accident exists, pregnancy greatly magnifies the prob-

ability of serious injury.

This court finds that for the reasons stated herein,

the regulation in question is entirely reasonable, and most

adequately meets the prescribed tests.

This court finds that the Cleveland Board of Educa-

tion has not discriminated as to women whose condition

is attendant to their sex.

This court finds that-there is a reasonable basis for

the rule which distinguishes pregnant teachers from all

other teachers.

This court finds that no showing of a violation of the

plaintiffs’ constitutional rights has been made.

A-13 »

This court finds that the regulation furthers the design

for quality education, and serves the important interests

of the students in implementing this fundamental right.

This court finds that the plaintiffs’ burden of show-

ing that the maternity leave of absence is —* and

unreasonable has not been sustained.

In accordance, the maternity regulation of the Cleve-

land Board of Education is sustained in its entirety.

This constitutes the findings of fact and conclusions

of law pursuant to Rule 52(a) of the Federal Rules of

Civil Procedure.

It is so ordered.

SET ik oE ET ARM in AEWA

A-14

OPINION OF THE COURT OF APPEALS

No. 71-1598

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

5

Jo Carox La FLEuR AND ANN ELiz- A f th

ABETH NELSON, PPEAL from the

United States Dis-

Plaintiffs-Appellants, tint Court foe the

v. i Northern District

CLEVELAND BoarD OF EDUCATION, of Ohio, Eastern

ET AL., Division.

Defendants-Appellees. ;

Decided and Filed July 27, 1972.

Before: Cxark, Associate Justice,” Pxm.irs, Chief

Judge, and Epwarps, Circuit Judge.

Epwarps, Circuit Judge. This is a complaint alleging

violation of the equal protection clause of the Fourteenth

Amendment to the United States Constitution. It is

brought on behalf of two pregnant school teachers in the

Cleveland school system under the Civil Rights Act of

1871, 42 U.S.C. § 1983 (1970). Each has been placed on

“maternity leave” involuntarily and seeks reinstatement

with back pay and injunctive relief against the implemen-

tation of the school board’s maternity leave policy. Each

claims that the school board’s rule is an unconstitutional

discrimination on grounds of sex.

The rule appellants attack has the effect of requiring

a pregnant teacher to take unpaid leave of absence from

* Honorable Tom C. Clark, Associate Justice of the Supreme

Court of the United States, Retired, sitting by designation.

A-15

her school duties five months before the expected birth of

a child and to continue on such status thereafter until the

beginning of the first school term following the date when

the baby becomes three months old.

The school board rule under attack provides as fol-

lows: — -

“Any married teacher who becomes pregnant and

who desires to return to the employ of the Board at

a future date may be granted a maternity leave of

absence without pay.

“APPLICATION A maternity leave of absence

shall be effective not less than five (5) months before

the expected date of the normal birth of the child. Ap-

plication for such leave shall be forwarded to the Su-

perintendent at least two (2) weeks before the effective

date of the leave of absence. A leave of absence with-

out pay shall be granted by the Superintendent for a

period not to exceed two (2) years.

“REASSIGNMENT A teacher may return to

service from maternity leaves not earlier than the be-

ginning of the regular school semester which follows

the child’s age of three (3) months. In unusual circum- ©

stances, exceptions to this requirement may be made

by the Superintendent with the approval of the Board.

Written request for return to service from maternity

leave must reach the Superintendent at least six (6)

weeks prior to the beginning of the semester when the

teacher expects to resume teaching and shall be ac-

companied by a doctor’s certificate stating the health

and physical condition of the teacher. The Superin-

tendent may require an additional physical examina-

tion.

. OCR FAAS ETI ROEM ROACH RR RM CTR SY TSN UNI : ;

Re eee Rah eae oe EC Oey SPT et RE et ne ae a SS Ree a i aaa

a, , iia ate

“When a teacher qualifies to return from ma-

ternity leave, she shall have priority in reassignment

to a vacancy for which she is qualified under her cer-

tificate, but she shall not have prior claim to the exact

position she held before the leave of absence be-

came effective.

Ges BFL. Vata RUS EY Soe Ss UB |

A-16

“A teacher’s failure to follow the above rules for

maternity leave of absence shall be construed as termi-

nation of contract or as grounds for dismissal.” (em-

phasis in original)

The District Judge who heard this case took exten-

sive testimony, made findings of fact and concluded that

the Cleveland Board of Education’s rule did not discrim-

inate against women and was not so unreasonable or arbi-

trary as to be unconstitutional. The basic rationale for the

District Judge's holding is set forth as follows:

“The evidence shows that the primary purpose

for the initiation of this rule was to protect the con-

tinuity of the classroom program. The school board

maintains this rule in an attempt to bring the dis-

ruption of the classroom program to a minimum.

They further maintain that use of the one month ad-

vance notice requirement gives the school board the

most accurate indication as to when the teacher will

discontinue her duties and the new instructor will

assume the responsibility of the study program. The

purpose is also to allow the new teacher to become

familiar with the classroom program and the students

under the guidance of the original- teacher who is

about to depart. Furthermore, the purpose is to give

the school board notice so that the original teacher’s

unexpected and sudden leave will not occur, and thus

guaranteeing classroom continuity and providing the

best possible safeguard against the disruption of the

students’ education. The intended purpose of the sec-

tion in the regulation which permits the teacher to re-

turn at the beginning of the regular school semester

following the child’s age of three months is designed to

protect the health of the mother and the child and

assure continuity of the classroom program.” La Fleur

v. Cleveland Board of Education, 326 F. Supp. 1208,

1211 (N.D. Ohio 1971).

Appellants’ contentions are that the rule is arbitrary

and unreasonable in its overbreadth and that it is a dis-

criminatory rule applicable to only one sex, in violation

9° SLD RSME AIF LER E IOP BEER GL Sans EE OR Sede Ce 2B aes

A-17

of the equal protection clause of the Fourteenth Amend-

ment.

It is relevant for us to note two developments which

have occurred since this case was argued. First, in a split

decision a panel of the Fifth Circuit held a distinctly less

onerous maternity leave rule of the Texas Employment

Commission not to be arbitrary and unreasonable in a

constitutional sense. Schattman v\ Texas Employment

Commission, —— F.2d —— (5th Cir. 1972). (Decided

March 1, 1972, order amending Judge Wisdom’s Opinion

dated March 17, 1972.)

Second, Congress has now amended Title VII of the

Equal Employment Opportunity Act to make it applicable

to public schools. 42 U.S.C. § 2000e(a), P.L. 92-261, 86 Stat.

103 (1972). The EEOC has also adopted a rule prohibiting

special maternity leave disability rules as discriminatory on

grounds of sex. 29-C.F.R. § 1604.10(b), 37 Fed. Reg. 6837

(April 5, 1972). —_

While clearly neither of these last decisions controls

our present case, they do tend to lessen the reach of our

holding. |

The Cleveland Board of Education maternity leave

rule was adopted in 1952. It is considerably more severe

in its effect upon employment of pregnant teachers than

the Texas Employment Commission rule dealt with in the

Schattman case, or any other similar rule which has been

called to our attention. Depending on the period of the

year when the birth of the child was expected, the effect

of the rule would be to put any pregnant teacher on in-

voluntary leave for a period ranging from six months to

over a year. The Texas Employment Commission rule

required leave to be taken two months before expected

birth and an application to return to work could be filed

at any time thereafter.

A-18 -

The principal social purpose claimed to be served by

the Cleveland Board of Education rule is continuity of

classroom instruction and relief of burdensome adminis-

trative problems. Yet any actual disability imposed on any

teacher, male or female, poses the same administrative

-problems and many (including flu and the common cold)

can't be anticipated or planned for at all. This rule may

arguably make some administrative burdens lighter. But

these are not the only values concerned. The Supreme

Court reminds us:

“The establishment of prompt efficacious pro-

cedures to achieve legitimate state ends is a proper

state interest worthy of cognizance in constitutional

adjudication. But the Constitution recognizes higher

values than speed and efficiency. Indeed, one might

fairly say of the Bill of Rights in general, and the

Due Process Clause in particular, that they were de-

signed to protect the fragile values of a vulnerable

citizenry from the overbearing concern for efficiency

and efficacy which may characterize praiseworthy

government officials no less, and perhaps more, than

mediocre ones.

“Procedure by presumption is always cheaper and

easier than individualized determination. But when, as

here, the procedure forecloses the determinative issues

of competence and care, when it explicitly disdains

present realities in deference to past formalities, it

needlessly risks running roughshod over the important

interests of both parent and child. It therefore can-

not stand.” Stanley v. Illinois, —— U.S. —— (1972) (de-

cided April 3, 1972) (Slip Opinion at 11-12). (Foot-

notes omitted. )

The three month enforced unemployment after birth

has no relation to the employer's interest at all. While

having a mother with her infant for a period after birth

may arguably be a question of general state concern, Ohio

has not thus far expressed it in any general and nondis-

criminatory statute.

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SP aA RM an ily So NCS Sih te HOMME TP ra PA OH STI

A-19

Appellees also urge consideration of a view expressed

by the author of this rule when in 1952 he suggested its

adoption. Dr. Schinnerer testified that he thought that ab-

sent the rule, pregnant teachers would be subjected to

“pointing, giggling and . . . snide remarks” by the students.

Basic rights such as those involved in the employment re-

lationship and other citizenship responsibilities cannot be

made to yield to embarrassment. See Abbott v. Mines, 411

F.2d 353 (6th Cir. 1969). Additionally, at the- present time

pregnant students are allowed to continue in the Cleve-

land schools without any apparent ill- effects upon the ed-

ucational system.

If there is substantial support for the Cleveland Board

of Education rule to be found in this record, it must be

in the testimony of the Board’s witness Dr. William C.

Wier, who discussed the problems of pregnancy with ob-

vious concern. But Dr. Wier also testified that “each

pregnancy is an individual matter.” And his cross-examina-

tion concluded as follows:

“Q How would you advise a working woman who is

pregnant as to her continued employment?

A I would first inquire what type of employment

she was on — doing. If it involved physical ac-

tivities, and in excess of what I would consider

normal or potentially in excess, I would advise

her probably that she should stop working at an

earlier time than somebody who was sitting en-

tirely at a desk job.

* @

A (Continuing) What I was going to say is that I

have had patients that worked as secretaries

throughout pregnancy, and I have seen nurses

that worked in the hospital going to term and

practically going from the nurse’s station up to

the delivery room.

A-20

Now, usiially the hospitals — in this situa-

tion, would put these nurses in the type of job on

the hospital floor in which their physical activities

were considerably reduced, and not require them .

to do as much; but in general I have never said

to a patient, “You can't do this or that.’ I can

only advise them.

Q Doctor, have you treated patients who have

worked through or worked beyond the end of

the fourth month of their pregnancy?

A Of course I have — many.

Q Have you always disapproved of +this?

A No.

Q Have you told the women to stop working?

A

I have on occasion suggested it would be a wiser

thing if they discontinued work.

Q > But not always?

A Oh, no.” : #

Under no construction of this record can we conclude

that the medical evidence presented supports the extended

periods of mandatory maternity leave required by the rule

both before and after birth of the child.

In a case decided after the District Court decision in

this case, the United States Supreme Court invalidated a

statute of the State of Idaho which specifically preferred

male relatives over female relatives as administrators of

estates. The Court’s opinion commented:

“Clearly the objective of reducing the workload

on probate courts by eliminating one class of contests

is not without some legitimacy. The crucial question,

however, is whether § 15-314 advances that objective

in a manner consistent with the command of the Equal

Protection Clause. We hold that it does not. To give

- a mandatory preference to members of either sex over

members of the other, merely to accomplish the elim-

a

te EP SRA I DOF PS a ARR ARE TIS EOS OO, ot A ORES :

A-21

ination of hearings on the merits, is to make the very

kind of arbitrary legislative choicé forbidden by the

Equal Protection Clause of the Fourteenth Amend-

ment; and whatever may be said as to the positive |

values of avoiding intrafamily controversy, the choice

in this context may not leerially be mandated solely

on the basis,of sex.” Reed y.. Réed, 404 U.S. 71, 76-77

(1971). ~%- ee

Here, too, we-deal with ‘a rule which is inherently

based uport a classification by sex. Male teachers are not

subject to preghancy, but they are subject to many types —

of illnesses and disabilities. This record indicates clearly

that pregnant women teachers have béen singled out for

unconstitutionally unequal restrictions upon their employ-

ment. Additionally;.as we have observed, the rule is clearly |

arbitrary and unreasonable in jts overbreadth. As the Su-

preme, Gourt said in Wieman v. Updegeaff, 344, U.S. 183

(19525 we ae

\ , ; ny? J of

“We ee not pause to cohsider whether an abstract

right to’public employment eyists. It is sufficient to

say that constitutional protection does extend to the

public servant whose exclusion pursuant to a statute

is patently arbitrary or discriminatory.” Id at 192.

. Wesbelieve that the,Fifth Circuit’s decision in Schatt-

man v. Texas Employment Commission, supra, is easily dis-

tinguishable on the facts and that the same is true in rela-

tion to Struck v. Secretary of Defensé, —— F.2d —— (9th

Cir. 1971), which dealt with pregnancy of a female officer

in a war zone. On the other hand, there is a marked trend

' of cas¢s to invalidate regulations based on sex classifica-

tions unless supported by a valid state interest. Reed: v.

Reed, supra; Sailer Inn v. Kirby, 95 Cal. Rptr. 329, 485

P.2d 529 (1971); Cohen v. Chesterfield County School

Board, 326 F. Supp. 1159 (E. D. Va. 1971); Seidenberg v.

McSorley’s Old Ale House, Inc., 317 F. Supp. 593 (S.D.

N.Y. 1970); Kirstein v. Rector of University of Virginia,

A-22

309 F. Supp. 184 (E. D. Va. 1970); Heath v. Westerville

Board of Education, et al. — F. Supp. —— Civil #71-379,

S.D. Ohio June 29, 1972.

We do not, of course, by our holding concerning this

rule deal with reasonable employer requirements of notice

of impending disability or of health examinations or cer-

tificates. Such issues are not presented by this appeal.

The judgment of the District Court is vacated and

reversed and the case is remanded for further proceedings

consistent with this opinion.

- Puuups, Chief Judge. (Dissenting in part, concurring

in part.) I respectfully dissent from the part of the majority

opinion which strikes down the regulation pertaining to

maternity leave prior to delivery.

It is my opinion that the pre-delivery part of the rule

of the Cleveland Board of Education under attack on this

appeal is a permissible and reasonable exercise of the

discretion vested in the Board in the administration of the

school system. I see no violation of the rights of teachers

under the Equal Protection Clause presented by the facts

and circumstances of this case.

“Judicial interposition in the operation of the

public school system of the Nation raises problems

requiring care and restraint... .

By and large, public education in our Nation is

committed to the control of state and local authori-

ties. Courts do not and cannot intervene in the resolu-

tion of conflicts which arise in the daily operation of

school systems and which do not x se and sharply

implicate basic constitutional values.” Epperson v.

Arkansas, 393 U.S. 97, 104 (1968) (footnote omitted ).

The capabilities of its teachers and the maintenance

of sound educational environment are matters of legiti-

mate concern to the Board of Education. The evidence

presented to the District Court shows that about 225 out

A-23

of the more than 5800 teachers employed by the Board

in the Cleveland school system are on maternity leave

at any given time and that approximately 1900 teachers

are women of child bearing age. Expert testimony estab-

lished that every pregnancy impairs to some degree the

ability to teach and supervise children. Pregnancy limits

the capacity of the teacher to engage in normal physical

activity. Mobility is reduced. A pregnant teacher is sub-

jected to an increased risk of unexpected incapacitation.

Such impairment and risk increase during the later months

of pregnancy. There is no question that the medical condi-

tion of a pregnant teacher will require that she discontinue

teaching at some point during the course of the pregnancy.

Appellants urge that the determination of this point

of time should be made on an individual basis, relying on

the thirty day notice requirement as ample to meet the

objectives ‘of the Board. The record in this case con-

vinces me that there is no assurance that an individualized

decision in all cases can be made thirty days prior to the

time that medical necessity may require a teacher. to

discontinue her classroom duties. To impose upon the

school system the obligation of examining each teacher

individually throughout the course of her pregnancy to

insure that she is capable of carrying out the manifold

and demanding duties of her profession would constitute

a burden more onerous than mere administrative incon-

venience.

In my view it is not the prerogative of this court to

determine whether a better regulation could be promul-

gated or whether a shorter period of time than the end of

four months of pregnancy should be prescribed. We do not

sit as a super Board of Education. Our concern is whether

the regulation creates an arbitrary or unreasonable classi-

fication wholly unrelated to the objectives sought to be ad-

vanced by the Board of Education in adopting it. In my

A-24 .

opinion, we should not strike down the regulation because

it “may be unwise, improvident, or out of harmony with a

particular school of thought.” See Dandridge v. Williams,

397 U.S. 471, 484.

Nor do I agree that the regulation should be invali-

dated because it applies only to pregnancy and not to

other conditions and diseases that incapacitate teachers,

both male and female, from classroom duties. It is true

that, during the course of a school year, a certain number

of teachers will experience illness or accidents requiring

leaves of absence. The wide range of these incapacitating

conditions is such that the Board of Education has seen

fit to deal with them on an individual basis. Pregnancy,

on the other hand, is a condition of predictable duration

and symptoms involving a substantial number of teachers

every year. In my opinion a classification dealing with

this problem is not so arbitrary or unreasonable as to

violate the Equal Protection Clause.

It is not every classification that amounts to a denial

of equal protection.

“The distinctions drawn by a challenged statute must

bear some rational relationship to a legitimate state

end and will be set aside as violative of the Equal Pro-

tection Clause only if based on reasons totally unre-

lated to the pursuit of that goal. . . . [C]lassifications

will be set aside only if no grounds can be conceived

to justify them. With this much discretion, a legisla-

ture traditionally has been allowed to take reform ‘one

step at a time, addressing itself to the phase of the

problem which seems most acute to the legislative

mind, and a legislature need not run the risk of losing

an entire remedial scheme simply because it failed

... to cover every evil that might conceivably have

been attacked.” McDonald v. Board of Election Com-

m’rs, 394 U.S. 802, 809 (1969) (citations omitted).

A-25

Upon the evidence presented in the District Court,

Judge Connell found that the requirement of maternity

leave prior to delivery gives the school system the best

assurance that sudden disruption of the classroom program

due to unforeseen complications in the condition of a

teacher will be minimized. 326 F.Supp. at 1213. I agree

with this conclusion. In my view it is not “clearly er-

roneous.” Rule 52(a), Fed. R. Civ. P.

With respect to the three months post-delivery wait-

ing period before resuming teaching, I agree with the

majority opinion. No evidence was introduced in the

District Court and no reasons offered to this court as to

how this requirement is related rationally to any legiti-

mate objective of the Board.

I would affirm in part and reverse in part.

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A-26 .

ORDER ON MOTION FOR REHEARING AND

SUGGESTION FOR REHEARING EN BANC

(Filed August 29, 1972)

No. 71-1598

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Jo Caron La FLeur AND ANN Exrza- |

BETH NELSON,

Plaintiffs-Appellants,

v. + ORDER

CLEVELAND BOARD OF EDUCATION, ET

AL.,

Defendants-Appellees. |

Before: CLark, Associate Justice,* Pumps, Chief

Judge, and Epwarps, Circuit Judge.

On receipt and consideration of a petition for re-

hearing and suggestion for rehearing en banc in the

above-styled case, and no judge having moved for rehear-

‘ing en banc, said petition for rehearing is hereby denied.

Judge Phillips dissents.

Entered by order of the Court

James. A. Hiccrns

Clerk

* Honorable Tom C. Clark, Associate Justice of the Supreme

Court of the United States, Retired, sitting by designation.

CERTIFICATE OF SERVICE

Three copies each of the Petition for a Writ of Cer-

tiorari and Appendix have been mailed this 25th day of

A-27 |

November, 1972, by depositing the same in a United States

Mail Box, First Class, postage prepaid, addressed to Carol

S. Agin, 3800 Lake Shore Drive, Apt. 5E, Chicago, Illinois,

60613, and, Lewis R. Katz, 2145 Adelbert Road, Cleveland,

Ohio 44106, attorneys for plaintiffs-appellants; Sidney

Picker, Jr., 3079 Van Aken Boulevard, Shaker Heights,

Ohio 44120, attorney for Women’s Equity Action League;

David Rubin, 1201 Sixteenth Street, N.W., Washington,

D.C. 20036 and Jerry D. Anker, 1730 M. Street, N.W.,

Washington, D.C. 20036, attorneys for the National Educa-

tion Association; Lucille Houston, 816 Engineers Build-

ing, Cleveland, Ohio 44114, attorney for the American .

Civil Liberties Union; Susan Deller Ross, 1800 G Street,

N.W., Washington, D.C. 20506, attorney for the United

States Equal Employment Opportunity Commission, and

Jordan Rossen, 8000 East Jefferson Avenue, Detroit, Michi-

gan 48214, attorney for International Union, United Auto-

mobile, Aerospace and Agricultural Implement Workers

of America (UAW), amici curiae.

CHARLES F. CLARKE

Attorney for Petitioners

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