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

MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE joins, dissenting.

The Court rests its invalidation of the school regulations involved in these cases on the Due Process Clause of the Fourteenth Amendment, rather than on any claim of sexual discrimination under the Equal Protection Clause of that Amendment. My Brother STEWART thereby enlists the Court in another quixotic engagement in his apparently unending war on irrebuttable presumptions. In these cases, we are told that, although a regulation "requiring a termination of employment at some firm date during the last few weeks of pregnancy," ante at 647 n. 13, might pass muster, the regulations here challenged requiring termination at the end of the fourth or fifth month of pregnancy violate due process of law.

As THE CHIEF JUSTICE pointed out in his dissent last year in Vlandis v. Kline, 412 U.S. 441,

literally thousands of state statutes create classifications permanent in duration, which are less than perfect, as all legislative classifications are, and might be improved on by individualized determinations. . . .

Id. at 462. Hundreds of years ago in England, before Parliament came to be thought of as a body having general lawmaking power, controversies were determined on an individualized basis without benefit of any general law. Most students of government consider the shift from this sort of determination, made on an ad hoc basis by the King’s representative, to a relatively uniform body of rules enacted by a body exercising legislative authority, to have been a significant step forward in the achievement of a civilized political society. It seems to me a little late in the day for this Court to weigh in against such an established consensus.

Countless state and federal statutes draw lines such as those drawn by the regulations here which, under the Court’s analysis, might well prove to be arbitrary in individual cases. The District of Columbia Code, for example, draws lines with respect to age for several purposes. The Code requires that a person to be eligible to vote be 18 years of age,{1} that a male be 18 and a female be 16 before a valid marriage may be contracted,{2} that alcoholic beverages not be sold to a person under the age of 21 years,{3} or beer or light wines to any person under the age of 18 years.{4} A resident of the District of Columbia must be 16 years of age to obtain a permit to operate a motor vehicle,{5} and the District of Columbia delegate to the United States Congress must be 25 years old.{6} Nothing in the Court’s opinion clearly demonstrates why its logic would not equally well sustain a challenge to these laws from a 17-year-old who insists that he is just as well informed for voting purposes as an 18-year-old, from a 20-year-old who insists that he is just as able to carry his liquor as a 21-year-old, or from the numerous other persons who fall on the outside of lines drawn by these and similar statutes.

More closely in point is the jeopardy in which the Court’s opinion places longstanding statutes providing for mandatory retirement of government employees. Title 5 U.S.C. § 8335 provides with respect to Civil Service employees:

(a) Except as otherwise provided by this section, an employee who becomes 70 years of age and completes 15 years of service shall be automatically separated from the service. . . .

It was pointed out by my Brother STEWART only last year in his concurring opinion in Roe v. Wade, 410 U.S. 113, 168, that

the "liberty" protected by the Due Process Clause of the Fourteenth Amendment covers more than those freedoms explicitly named in the Bill of Rights. . . . Cf. . . . Truax v. Raich, 239 U.S. 33, 41.

In Truax v. Raich, the Court said:

It requires no argument to show that the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the Amendment to secure.

239 U.S. 33, 41 (1915). Since this right to pursue an occupation is presumably on the same lofty footing as the right of choice in matters of family life, the Court will have to strain valiantly in order to avoid having today’s opinion lead to the invalidation of mandatory retirement statutes for governmental employees. In that event, federal, state, and local governmental bodies will be remitted to the task, thankless both for them and for the employees involved, of individual determinations of physical impairment and senility.

It has been said before, Williamson v. Lee Optical Co., 348 U.S. 483 (1955), but it bears repeating here: all legislation involves the drawing of lines, and the drawing of lines necessarily results in particular individuals who are disadvantaged by the line drawn being virtually indistinguishable for many purposes from those individuals who benefit from the legislative classification. The Court’s disenchantment with "irrebuttable presumptions," and its preference for "individualized determination," is, in the last analysis, nothing less than an attack upon the very notion of lawmaking itself.

The lines drawn by the school boards in the city of Cleveland and Chesterfield County in these cases require pregnant teachers to take forced leave at a stage of their pregnancy when medical evidence seems to suggest that a majority of them might well be able to continue teaching without any significant possibility of physical impairment. But, so far as I am aware, the medical evidence also suggests that, in some cases, there may be physical impairment at the stage of pregnancy fastened on by the regulations in question, and that the probability of physical impairment increases as the pregnancy advances. If legislative bodies are to be permitted to draw a general line anywhere short of the delivery room, I can find no judicial standard of measurement which says the ones drawn here were invalid. I therefore dissent.

1. D.C.Code Ann. § 1-1102 (1973).

2. Id., § 30-103.

3. Id., § 25-121.

4. Ibid.

5. Id., § 40-301.

6. Id. § 1-291(b)(2).