Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 74 C 931 - Frank J. McGarr, Judge.
Barnes, Senior Circuit Judge,*fn1 Swygert and Pell, Circuit Judges. Barnes, Senior Circuit Judge, concurring. Pell, Circuit Judge, dissenting.
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 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.*fn2
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, 95 S. Ct. 1973, 44 L. Ed. 2d 466 (1975). See 523 F.2d 205 (7th Cir. 1975). Following the decision in Murgia, 427 U.S. 307, 49 L. Ed. 2d 520, 96 S. Ct. 2562 (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.
Although the facts were stated in our previous opinion, a brief resume may be helpful. Upon reaching the age of 65, plaintiff, a tenured biology teacher at Thornton 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 must follow to dismiss or remove a teacher.*fn3 Id. at § 24-12.
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. . . ." Policy No. 4146. This policy thereby goes a step further than the School Code and removes all teachers over 65 under the board's jurisdiction from any consideration for this annual retention. It was pursuant to this policy to which plaintiff was terminated.
Plaintiff contends that the board policy of compulsory retirement violates her equal protection rights both substantively 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 continued 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, 39 L. Ed. 2d 306, 94 S. Ct. 1076 (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 interest, Dandridge v. Williams, 397 U.S. 471, 485-86, 25 L. Ed. 2d 491, 90 S. Ct. 1153 (1970), and the standard of strict judicial scrutiny wherein classifications are constitutional only if they are necessary to promote a compelling state interest. Dunn v. Blumstein, 405 U.S. 330, 31 L. Ed. 2d 274, 92 S. Ct. 995 (1972); Shapiro v. Thompson, 394 U.S. 618, 22 L. Ed. 2d 600, 89 S. Ct. 1322 (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. San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 16-17, 36 L. Ed. 2d 16, 93 S. Ct. 1278 (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, 49 L. Ed. 2d 520, 96 S. Ct. 2562 (1976). The Court in that case held that the right of governmental employment is not fundamental and that age does not constitute a suspect class. Id. 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 articulated 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.*fn4
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 police activities as well as medical testimony concerning the relationship of age to the ability to perform those functions. Based upon this ...