Cleveland Bd. Of Educ. v. Lafleur, 414 U.S. 632 (1974)

MR. JUSTICE POWELL, concurring in the result.

I concur in the Court’s result, but I am unable to join its opinion. In my view, these cases should not be decided on the ground that the mandatory maternity leave regulations impair any right to bear children or create an "irrebuttable presumption." It seems to me that equal protection analysis is the appropriate frame of reference.

These regulations undoubtedly add to the burdens of childbearing. But certainly not every government policy that burdens childbearing violates the Constitution. Limitations on the welfare benefits a family may receive that do not take into account the size of the family illustrate this point. See Dandridge v. Williams, 397 U.S. 471 (1970). Undoubtedly Congress could, as another example, constitutionally seek to discourage excessive population growth by limiting tax deductions for dependents. That would represent an intentional governmental effort to "penalize" childbearing. See ante at 640. The regulations here do not have that purpose. Their deterrent impact is wholly incidental. If some intentional efforts to penalize childbearing are constitutional, and if Dandridge, supra, means what I think it does, then certainly these regulations are not invalid as an infringement of any right to procreate.

I am also troubled by the Court’s return to the "irrebuttable presumption" line of analysis of Stanley v. Illinois, 405 U.S. 645 (1972) (POWELL, J., not participating), and Vlandis v. Kline, 412 U.S. 441 (1973). Although I joined the opinion of the Court in Vlandis and continue fully to support the result reached there, the present cases have caused me to reexamine the "irrebuttable presumption" rationale. This has led me to the conclusion that the Court should approach that doctrine with extreme care. There is much to what MR. JUSTICE REHNQUIST says in his dissenting opinion, post at 660, about the implications of the doctrine for the traditional legislative power to operate by classification. As a matter of logic, it is difficult to see the terminus of the road upon which the Court has embarked under the banner of "irrebuttable presumptions." If the Court nevertheless uses "irrebuttable presumption" reasoning selectively, the concept at root often will be something else masquerading as a due process doctrine. That something else, of course, is the Equal Protection Clause.

These cases present precisely the kind of problem susceptible of treatment by classification. Most school teachers are women, a certain percentage of them are pregnant at any given time, and pregnancy is a normal biological function possessing, in the great majority of cases, a fairly well defined term. The constitutional difficulty is not that the boards attempted to deal with this problem by classification. Rather, it is that the boards chose irrational classifications.

A range of possible school board goals emerge from the cases. Several may be put to one side. The records before us abound with proof that a principal purpose behind the adoption of the regulations was to keep visibly pregnant teachers out of the sight of schoolchildren.{1} The boards do not advance this today as a legitimate objective, yet its initial primacy casts a shadow over these cases. Moreover, most of the after-the-fact rationalizations proposed by these boards are unsupported in the records. The boards emphasize teacher absenteeism, classroom discipline, the safety of schoolchildren, and the safety of the expectant mother and her unborn child. No doubt these are legitimate concerns. But the boards have failed to demonstrate that these interests are, in fact, threatened by the continued employment of pregnant teachers.

To be sure, the boards have a legitimate and important interest in fostering continuity of teaching. And even a normal pregnancy may at some point jeopardize that interest. But the classifications chosen by these boards, so far as we have been shown, are either counterproductive or irrationally overinclusive even with regard to this significant, nonillusory goal. Accordingly, in my opinion, these regulations are invalid under rational basis standards of equal protection review.{2}

In speaking of continuity of teaching, the boards are referring in part to their valid interest in reducing the number of times a new teacher is assigned to a given class. It is particularly appropriate to avoid teacher turnover in the middle of a semester, since continuity in teaching approach, as well as teacher-pupil relationships, is otherwise impaired. That aspect of the Cleveland regulation limiting a teacher’s eligibility to return to the classroom to the semester following delivery, which the Court approves, ante at 649, rationally serves this legitimate state interest. But the four- and five-month pre-birth leave periods of the two regulations and the three-month post-birth provision of the Cleveland regulation do not. As the Court points out, ante at 642-643, such cutoff points are more likely to prevent continuity of teaching than to preserve it. Because the cutoff dates occur throughout the school year, they inevitably result in the removal of many capable teachers from the classroom in the middle or near the end of a semester, thus provoking the disruption the boards hope to avoid. The boards’ reference to continuity of teaching also encompasses their need to assure constant classroom coverage by teachers who are up to the task. This interest is obviously legitimate. No one disputes that a school board must concern itself with the physical and emotional capabilities of its teachers. But the objectionable portions of these regulations appear to be bottomed on factually unsupported assumptions about the ability of pregnant teachers to perform their jobs. The overwhelming weight of the medical testimony adduced in these cases is that most teachers undergoing normal pregnancies are quite capable of carrying out their responsibilities until some ill-defined point a short period prior to term. Certainly the boards have made little effort to contradict this conclusion. Thus, it appears that, by forcing all pregnant teachers undergoing a normal pregnancy from the classroom so far in advance of term, the regulations compel large numbers of able-bodied teachers to quit work.{3} Once more, such policies inhibit, rather than further, the goal of continuity of teaching. For no apparent reason, they remove teachers from their students and require the use of substitutes.

The boards’ reliance on the goal of continuity of teaching also takes into account their obvious planning needs. Boards must know when pregnant teachers will temporarily cease their teaching responsibilities so that substitutes may be scheduled to fill the vacancies. And planning requires both notice of pregnancy and a fixed termination date. It appears, however, that any termination date serves the purpose.{4} The choice of a cutoff date that produces several months of forced unemployment is thus wholly unnecessary to the planning of the boards. Certainly nothing in the records of these cases is to the contrary.

For the above reasons, I believe the linkage between the boards’ legitimate ends and their chosen means is too attenuated to support those portions of the regulations overturned by the Court. Thus, I concur in the Court’s result. But I think it important to emphasize the degree of latitude the Court, as I read it, has left the boards for dealing with the real and recurrent problems presented by teacher pregnancies. Boards may demand in every case "substantial advance notice of [pregnancy]. . . ." Ante at 643. Subject to certain restrictions, they may require all pregnant teachers to cease teaching "at some firm date during the last few weeks of pregnancy. . . ." Id. at 647 n. 13.{5} The Court further holds that boards may in all cases restrict reentry into teaching to the outset of the school term following delivery. Id. at 649.

In my opinion, such class-wide rules for pregnant teachers are constitutional under traditional equal protection standards.{6} School boards, confronted with sensitive and widely variable problems of public education, must be accorded latitude in the operation of school systems and in the adoption of rules and regulations of general application. E.g., San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 42-43 (1973). A large measure of discretion is essential to the effective discharge of the duties vested in these local, often elective, governmental units. My concern with the Court’s opinion is that, if carried to logical extremes, the emphasis on individualized treatment is at war with this need for discretion. Indeed, stringent insistence on individualized treatment may be quite impractical in a large school district with thousands of teachers.

But despite my reservations as to the rationale of the majority, I nevertheless conclude that, in these cases, the gap between the legitimate interests of the boards and the particular means chosen to attain them is too wide. A restructuring generally along the lines indicated in the Court’s opinion seems unavoidable. Accordingly, I concur in its result.

1. See, e.g., ante at 641 n. 9.

2. I do not reach the question whether sex-based classifications invoke strict judicial scrutiny, e.g., Frontiero v. Richardson, 411 U.S. 677 (1973), or whether these regulations involve sex classifications at all. Whether the challenged aspects of the regulations constitute sex classifications or disability classifications, they must at least rationally serve some legitimate articulated or obvious state interest. While there are indeed some legitimate state interests at stake here, it has not been shown that they are rationally furthered by the challenged portions of these regulations.

3. Teachers who undergo abnormal pregnancies may well be disabled, either temporarily or for a substantial period. But, as I read the Court, boards may deal with abnormal pregnancies like any other disability. Ante at 642 n. 10.

4. One may question, however, whether planning needs are well served by the mere two-week gap between notice and departure set forth in the Cleveland regulation. The brief notice the Cleveland board has allowed itself casts some doubt on that boards reliance on planning needs.

5. The Court’s language does not specify a particular pre-birth cutoff point, and we need not decide that issue, as these boards have attempted to support only four- and five-month dates. In light of the Court’s language, however, I would think that a four-week pre-birth period would be acceptable. I do not agree with the Court’s view of the stringent standards a board must meet to justify a reasonable pre-birth cutoff date. See ante at 647 n. 13. Nothing in the Constitution mandates the heavy burden of justification the Court has imposed on the boards in this regard. If school boards must base their policies on a "wide-spread medical consensus . . . ," the "only reasonable method . . ." for accomplishing a goal, or a demonstration that needed services will otherwise be impossible to obtain, ibid., they may be seriously handicapped in the performance of their duties.

6. As the Court notes, these cases arose prior to the recent amendment extending Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., to state agencies and educational institutions. Pub.L. 92-261, 86 Stat. 103. See ante at 639 n. 8. Like the Court, I do not address the impact of Title VII on mandatory maternity leave regulations.