Freund v. Florio

• Decision Date: 03 June 1992
• Docket Number: Civ. A. No. 91-875.
• Citation: 795 F. Supp. 702
• Parties: Anna FREUND, Ruth Arnold, Alice Laughlin, Joseph Pikus, Kathryn A. Smith, Kenneth Benson, Evelyn Borgen, Donald Mintz, Meyer Schreiber, Albert C. Shaw, H. Williard Stern, Lilyan B. Wright, Robert W. Harper, Plaintiffs, v. James J. FLORIO, Edward D. Goldberg, Herman James, William Maxwell, Elsa Gomez, Irvin Reid, Robert A. Scott, Vera King Farris, George Pruitt, Harld W. Eickhoff, Arnold Speert, Defendants.
• Court: U.S. District Court — District of New Jersey

795 F. Supp. 702

Anna FREUND, Ruth Arnold, Alice Laughlin, Joseph Pikus, Kathryn A. Smith, Kenneth Benson, Evelyn Borgen, Donald Mintz, Meyer Schreiber, Albert C. Shaw, H. Williard Stern, Lilyan B. Wright, Robert W. Harper, Plaintiffs, v. James J. FLORIO, Edward D. Goldberg, Herman James, William Maxwell, Elsa Gomez, Irvin Reid, Robert A. Scott, Vera King Farris, George Pruitt, Harld W. Eickhoff, Arnold Speert, Defendants.

Civ. A. No. 91-875.

United States District Court, D. New Jersey.

June 3, 1992.

Paul J. Burns, Dwyer & Canellis, P.A., Westfield, N.J., for plaintiff.

Grey J. Dimenna, Deputy Atty. Gen., Office of the Atty. Gen. of New Jersey, Trenton, N.J., for defendants.

OPINION

SAROKIN, District Judge.

This action challenges the constitutionality of a statute which permits mandatory retirement of tenured faculty in state institutions at age 70. For the reasons hereinafter expressed, such legislation must be sustained if there is a rational basis for its enactment. However, many of the reasons proffered to justify such mandatory retirement would appear to support any act of age discrimination. Making way for the young, planning for the future, creating greater diversity, injecting new energy, reducing costs, eliminating the potentially ineffective, and avoiding the difficulty and embarrassment of identifying them, could be offered as justifications for terminating the aged in almost any situation, irrespective of their actual skills, performance, and ability to continue in employment.

Despite the court's recognition that the rational bases offered here are the same as those often used to justify acts of age discrimination, the court is compelled to conclude that the rational basis test applies in this matter and that the mandatory retirement statute satisfies this undemanding standard.

As a result, the state's colleges may be deprived of some of their greatest teachers; but the state has the right to do so, in the hope that they will be replaced, if not now, eventually, by teachers of equal or greater competence and diversity.

Background

This action was commenced with the filing of a complaint on February 28, 1991 by the plaintiffs, thirteen previously and currently tenured faculty members at various New Jersey State Colleges. Named as defendants were the State of New Jersey, James J. Florio, the New Jersey Department of Higher Education, the Chancellor of Higher Education, New Jersey's nine State Colleges and their presidents.

Plaintiffs maintain that N.J.S.A. 10:5-2.2, which grants institutions of higher education within New Jersey the discretion to retire tenured faculty at age 70, is unconstitutional, constituting discrimination on the basis of age. Plaintiffs allege that defendants have violated the equal protection and due process clauses of the Fourteenth Amendment of the United States Constitution and parallel provisions of the New Jersey Constitution, Article I, Paragraphs 1, 5 & 19. Plaintiffs seek a declaratory judgment that N.J.S.A. 10:5-2.2 is unconstitutional, an injunction preventing defendants from requiring plaintiffs to retire pursuant to the statute, compensatory and punitive damages, and attorney's fees.

Defendants have now moved for judgment on the pleadings on the grounds that, under the facts alleged, N.J.S.A. 10:5-2.2 does not violate the equal protection and due process provisions of either the U.S. Constitution or the New Jersey Constitution. Additionally, defendants contend that this action is barred in its entirety by the grant of immunity to states in the Eleventh Amendment of the U.S. Constitution.

Claims under the United States Constitution

N.J.S.A. 10:5-2.2 ("the Faculty Retirement Act") states that:

Notwithstanding the provisions of section 1 of P.L.1938, c. 295 (C.10:3-1) and section 8 of P.L.1962, c. 37 (C.10:5-2.1), an employee who has attained 70 years of age who is serving under a contract of tenure or similar arrangement providing for tenure at a public or private institution of higher education may, at the option of the institution, be required to retire.¹

It is one of plaintiffs' claims that this Law violates the Equal Protection and Due Process Clauses of the Federal Constitution.²

Section 1 of the Fourteenth Amendment of the United States Constitution states in pertinent part:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The United States Supreme Court has developed a multi-tiered approach to determining violations of equal protection rights. The general rule is that "classifications that neither regulate suspect classes nor burden fundamental rights must be sustained if they are rationally related to a legitimate governmental interest." In re Asbestos Litigation, 829 F.2d 1233, 1238 (3d Cir.1987), cert. denied sub nom. Owens-Illinois, Inc. v. Danfield, 485 U.S. 1029, 108 S.Ct. 1586, 99 L.Ed.2d 901 (1988). In conducting rational basis review, a court need not limit itself to purposes actually identified in the legislative history, but may "hypothesize the motivations of the state legislature to find a legitimate objective promoted by the provision under attack" and "the legitimate purpose need not be the primary purpose of the provision." Malmed v. Thornburgh, 621 F.2d 565, 569 (3d Cir.1980), cert. denied, 449 U.S. 955, 101 S.Ct. 361, 66 L.Ed.2d 219 (1980) (citations omitted).

The United States Supreme Court has recognized that age is neither a suspect class nor a quasi-suspect class, like sex, meriting an intermediate level of scrutiny; rather, age categories trigger only the lowest level of scrutiny, rational basis review. Gregory v. Ashcroft, 501 U.S. ___, 111 S.Ct. 2395, 2406, 115 L.Ed.2d 410 (1991); Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 2566, 49 L.Ed.2d 520 (1976). Further, the entitlement to continued governmental employment is not a fundamental right that would trigger heightened scrutiny in its own right. United Bldg. & Const. Trades Council v. Mayor & Council of City of Camden, 465 U.S. 208, 104 S.Ct. 1020, 79 L.Ed.2d 249 (1984). Thus, the appropriate standard of review for the Faculty Retirement Act is the rational basis test. This standard applies to both the plaintiffs' equal protection claim and to their due process allegations. Malmed, 621 F.2d at 573-76.

In other circuits, courts have repeatedly found that age-based faculty retirement provisions, like those in the Faculty Retirement Act, do not violate the federal constitution. See, e.g., Lamb v. Scripps College, 627 F.2d 1015, 1021-22 (9th Cir.1980) (California legislature could reasonably have concluded that state statute permitting compulsory retirement by private employers of tenured private college professors aged 65 to 69 would "open up employment opportunities for younger professors and for minorities," "bring in younger faculty with fresh ideas and techniques," "stimulate performance among younger faculty members by assuring a predictable number of available positions," "allow universities to plan in advance for staffing needs," "and avoid the difficulties inherent in evaluating the individual performances of professors aged 65 and over"); Palmer v. Ticcione, 576 F.2d 459 (2d Cir.1978), cert. denied, 440 U.S. 945, 99 S.Ct. 1421, 59 L.Ed.2d 633 (1979) (upholding dismissal on pleadings of claim challenging constitutionality of state law permitting school boards to implement compulsory age 65 retirement policies for teachers, on grounds that "a state might prescribe mandatory retirement for teachers in order to open up employment opportunities for young teachers ... or to open up more place for minorities, or to bring young people with fresh ideas and techniques in contact with school children, or to assure predictability and ease in establishing and administering pension plans"); Crozier v. Howard, 772 F.Supp. 1192, 92-93 (W.D.Okla.1991) (upholding age 70 mandatory retirement policy for tenured professors enacted by Board of Regents for Oklahoma Colleges; defendants had "adduced evidence that physical and mental abilities decline with increasing age," and mandatory retirement rule was rationally related to the state interest in quality education and getting the most qualified professors "by allowing the promotion of younger faculty members at a foreseeable time; infusing new ideas; creating predictable openings for new staff; permitting the university to plan for its staffing needs; and avoiding difficult and emotional alternative termination procedures"); Mittelstaedt v. Board of Trustees of University of Arkansas, 487 F.Supp. 960 (E.D.Ark.1980) (University policy requiring retirement at age 67 was constitutional); McAloon v. Bryant College of Bus. Admin., 520 F.Supp. 103 (D.N.H. 1981) (upholding state law permitting compulsory retirement at age 65 for university faculty); see also Fazekas v. University of Houston, 565 S.W.2d 299 (Tex.Civ.App. 1978), appeal dismissed, 440 U.S. 952, 99 S.Ct. 1487, 59 L.Ed.2d 765 (1979); Elliott v. Board of Trustees, 29 Wash.App. 890, 631 P.2d 985 (Wash.App.1981); Kubik v. Scripps College, 118 Cal.App.3d 544, 173 Cal.Rptr. 539 (Cal.App.1981).

Similarly, in Malmed v. Thornburgh, the Third Circuit upheld a provision of the Pennsylvania Constitution requiring retirement of state judges at the age of 70 in the face of a challenge based on the federal Equal Protection Clause. 621 F.2d 565. The court held that the mandatory retirement provision was appropriately assessed by the rational relation test. Applying this standard, the court found that the retirement provision was rationally related to the legitimate state interest in augmenting judicial resources by increasing the number of judges available for part-time post-retirement service,...