419 U.S. 498 (1975), 73-776, Schlesinger v. Ballard

Docket Nº:No. 73-776
Citation:419 U.S. 498, 95 S.Ct. 572, 42 L.Ed.2d 610
Party Name:Schlesinger v. Ballard
Case Date:January 15, 1975
Court:United States Supreme Court

Page 498

419 U.S. 498 (1975)

95 S.Ct. 572, 42 L.Ed.2d 610




No. 73-776

United States Supreme Court

Jan. 15, 1975

Argued October 15, 1974




Appellee, a naval officer with more than nine years of active service, who failed for a second time to be selected for promotion and thus under 10 U.S.C. § 6382(a) was subject to mandatory discharge, brought this action claiming that application of that statute to him, when compared to 10 U.S.C. § 6401 (under which, had he been a woman officer, he would have been entitled to 13 years of commissioned service before a mandatory discharge for want of promotion), was an unconstitutional discrimination based on sex in violation of the Fifth Amendment's Due Process Clause. A three-judge District Court, relying on [95 S.Ct. 573] Frontiero v. Richardson, 411 U.S. 677, concluded that the challenged mandatory discharge provisions are supported solely by considerations of fiscal and administrative policy, and upheld appellee's claim.

Held: The challenged legislative classification is completely rational, and does not violate the Due Process Clause. Pp. 505-510.

(a) The different treatment of men and women naval officers under §§ 6382 and 6401 results not from mere administrative or fiscal convenience, but from the fact that female line officers, because of restrictions on their participating in combat and most sea duty, do not have opportunities for professional service equal to those of male line officers, and Congress could rationally conclude that a longer period of tenure for women officers comported with the goal of providing women officers with "fair and equitable career advancement programs." Frontiero v. Richardson, supra; Reed v. Reed, 404 U.S. 71, distinguished. Pp. 505-508.

(b) In naval corps where male and female officers are similarly situated Congress, made no tenure distinctions, thus underscoring the rationality of the legislative classification. P. 509.

(c) The challenged statutes further a flow of promotions commensurate with the Navy's current needs, and serve to motivate qualified commissioned officers so to conduct themselves that they may realistically anticipate higher command levels. P. 510.

360 F.Supp. 643, reversed.

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STEWART, J., delivered the opinion of the Court, in which BURGER, C.J., and BLACKMUN, POWELL, and REHNQUIST, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which DOUGLAS and MARSHALL, JJ., joined, post, p. 511. WHITE, J., filed a dissenting statement, post, p. 521.

STEWART, J., lead opinion

MR. JUSTICE STEWART delivered the opinion of the Court.

Appellee Robert C. Ballard is a lieutenant in the United States Navy. After more than nine years of active service as a commissioned officer, he failed, for a second time, to be selected for promotion to the grade of lieutenant commander, and was therefore subject to mandatory discharge under 10 U.S.C. § 6382(a).1 He

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brought suit in federal court claiming that, if he had been a woman officer, he would have been subject to a different separation statute, 10 U.S.C. § 6401, under which he would have been entitled to 13 years of commissioned service before a mandatory discharge for want of promotion.2 He claimed that the application of § [95 S.Ct. 574] 6382 to him, when compared with the treatment of women officers subject to § 6401, was an unconstitutional discrimination based on sex in violation of the Due Process Clause of the Fifth Amendment.3

The District Judge issued a temporary restraining order prohibiting Ballard's discharge. Subsequently, a three-judge District Court was convened to hear the claim pursuant to 28 U.S.C. §§ 2282, 2284. After hearings upon motions by the Government defendants, that court issued a preliminary injunction against Ballard's discharge.

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350 F.Supp. 167. Thereafter, the case came before the three-judge court for decision on the merits. Relying upon Frontiero v. Richardson, 411 U.S. 677, and concluding that the challenged mandatory discharge provisions are supported solely by considerations of fiscal and administrative policy, the court held that § 6382 is unconstitutional because the 13-year tenure provision of § 6401 discriminates in favor of women without sufficient justification. 360 F.Supp. 643. Accordingly, the court enjoined the Navy from discharging Ballard for failure to be promoted to the grade of lieutenant commander before the expiration of 13 years of commissioned service. Id. at 648. We noted probable jurisdiction of this appeal from that injunctive order. 415 U.S. 912. See 28 U.S.C. § 1253.


At the base of the system governing the promotion and attrition of male line officers in the Navy is a congressional designation of the authorized number of the Navy's enlisted personnel, 10 U.S.C. § 5401, and a correlative limitation upon the number of active line officers as a percentage of that figure. § 5403.4 Congress has also established the ratio of distribution of line officers in the several grades above lieutenant in fixed proportions to the total number of line officers. §§ 5442, 5447(a).

The Secretary of the Navy is required periodically to convene selection boards to consider and recommend for promotion male line officers in each of the separate ranks, § 5701, and must provide the boards so convened with the number of male line officers that may be recommended

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for promotion to the next higher grade. § 5756. Eligible officers are then recommended for promotion by the selection boards, based upon merit, and are placed on a promotion list and promoted in due course as vacancies occur in the higher ranks. § 5769. Because the number of lieutenant commanders is set by statute, the number of lieutenants, like Ballard, who may be recommended for promotion and placed on a promotion list in any year depends upon the number of vacancies existing and estimated for the coming year in the rank of lieutenant commander. § 5756.

Wholly separate promotion lines are established for the various categories of officers. Thus, in addition to the selection boards that are convened to review the promotion of male line officers, different selection boards are convened to recommend for promotion staff corps officers (except for women officers appointed [95 S.Ct. 575] under § 5590), § 5702, male officers in the Marine Corps, § 5703, women line officers, § 5704(a), and women staff officers who are appointed under § 5590. § 5704(b). The convening of these separate selection boards permits naval officers within each category to be considered for promotion in comparison with other officers with similar opportunities and experience.

Because the Navy has a pyramidal organizational structure, fewer officers are needed at each higher rank than are needed in the rank below. In the absence of some mandatory attrition of naval officers, the result would be stagnation of promotion of younger officers and disincentive to naval service. If the officers who failed to be promoted remained in the service, the promotion of younger officers through the ranks would be retarded. Accordingly, a basic "up or out" philosophy was developed to maintain effective leadership by heightening competition for the higher ranks while providing junior

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officers with incentive and opportunity for promotion. It is for this reason, and not merely because of administrative or fiscal policy considerations, that § 6382(a) requires that lieutenants be discharged when they are "considered as having failed of selection for promotion to the grade of lieutenant commander . . . for the second time."5 Similar selection-out rules apply to officers in different ranks who are twice passed over for promotion.6

The phrase "failed of selection for promotion" in § 6382(a) is a statutory term of art. It does not embrace all eligible officers who have been considered and not selected for promotion. Before an officer is considered to have failed of selection for the first time, he must have been placed within a "promotion zone" established by the Secretary of the Navy. The Secretary each year establishes "promotion zones" of officers who will either be selected for promotion to the next higher grade or who will be considered to have failed of selection for promotion for the first time. See §§ 5764, 5776. The number of officers in the zones, established for each grade, is set at a level to ensure a flow of promotions consistent with the appropriate terms of service in each grade, see § 5768, and to provide opportunity for promotion of others in succeeding years. The number

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of officers within each zone is thus based on

a consideration of the number of vacancies estimated for the next higher grade in each of the next five years, the number of officers who will be eligible for selection in each of those years, and the terms of service that those officers will have completed.

§ 5764(a).

Section 6401 is the mandatory attrition provision that applies to women officers appointed under § 5590, including all women line officers and most women officers in the Staff Corps.7 It provides for mandatory discharge of a woman officer appointed under § 5590 when she "is not on a promotion list"8 and "has completed 13 years of active commissioned service in the Navy." § 6401. Section 6401 was initially intended approximately to equate the length of service of women officers before mandatory discharge for want of promotion with that of male lieutenants discharged under § 6382(a).9 Subsequently, however, Congress

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specifically recognized that the provisions of § 6401 would probably result in longer tenure for women lieutenants than for male...

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