Green v. Waterford Board of Education, No. 213

• Court: U.S. Court of Appeals — Second Circuit
• Writing for the Court: LUMBARD, FEINBERG and MANSFIELD, Circuit
• Citation: 473 F.2d 629
• Parties: Priscilla B. GREEN, Appellant, v. WATERFORD BOARD OF EDUCATION et al., Appellees.
• Docket Number: Docket 72-1676.,No. 213
• Decision Date: 29 January 1973

473 F.2d 629 (1973)

Priscilla B. GREEN, Appellant,
v.
WATERFORD BOARD OF EDUCATION et al., Appellees.

No. 213, Docket 72-1676.

United States Court of Appeals, Second Circuit.

Argued December 6, 1972.

Decided January 29, 1973.

473 F.2d 630

Martin A. Gould, Hartford, Conn. (Gould, Killian & Krechevsky, Hartford, Conn., on the brief), for appellant.

Melvin Scott, New London, Conn. (C. George Kanabis, Narcyz Dubicki, Traystman, Scott & Kanabis, New London, Conn., on the brief), for appellees.

Before LUMBARD, FEINBERG and MANSFIELD, Circuit Judges.

FEINBERG, Circuit Judge:

Plaintiff Priscilla B. Green, a school teacher, was forced by defendant Board of Education of the Town of Waterford, Connecticut, to take a leave of absence without pay from her job because of pregnancy, although she wanted to teach another two and one-half months and

473 F.2d 631

claimed to be able to do so. Arguing that the Board's inflexible maternity leave provision denied her the equal protection of the laws, plaintiff brought a civil rights action, 42 U.S.C. § 1983, in the United States District Court for the District of Connecticut. Chief Judge M. Joseph Blumenfeld dismissed plaintiff's complaint, 349 F.Supp. 687, and she appeals. We conclude that plaintiff stated a valid constitutional claim, and we reverse and remand for further appropriate proceedings

I

The facts of the case are simple and in large part undisputed. In early September 1971, plaintiff was a nontenured teacher of English at Waterford High School under a one-year employment contract with the Waterford Board of Education. At that time, she informed the principal of Waterford High School that she was pregnant, that her due date was about mid-February 1972, and that she wanted to continue teaching until January 31, 1972, which she characterized as the end of the first semester. Shortly thereafter, the Waterford Superintendent of Schools, defendant Charles J. Cupello, told plaintiff that her leave would start as soon as a suitable replacement could be found. Plaintiff tried to persuade the Board to let her continue to teach until the end of January, but this effort was fruitless. In a letter dated October 15, 1972 the Superintendent notified plaintiff that the Board had voted to grant her request for a maternity leave of absence "effective at such time as a suitable, certified replacement may be secured," in accordance with Article XIV of an agreement between the Board and defendant Waterford Education Association, the collective bargaining agent for Waterford teachers. The provisions of Article XIV, referred to in the letter, are set forth in the margin.¹ The key portion requires a maternity leave without pay to begin "not less than four months prior to expected confinement or at such earlier time as a replacement becomes available." Thereafter, the Superintendent notified plaintiff that a replacement had been secured, who would assume plaintiff's classroom duties on November 17, 1971, "at which time your maternity leave will commence." Soon after, plaintiff brought this suit in the district court.

The basis of plaintiff's action is that a mandatory maternity leave provision for teachers which fails to consider the physical ability of the individual and which treats pregnancy differently from any other form of disability deprives a pregnant teacher of rights guaranteed under the fourteenth amendment. The complaint sought an order requiring defendants to permit her to teach "until such time as her gynecologist shall deem that she is physically unable to continue to teach, or until January 31, 1972, whichever shall sooner occur"; plaintiff alternatively sought damages for lost salary if forced to leave her job. Chief Judge Blumenfeld denied an application

473 F.2d 632

for preliminary injunctive relief on the ground that since money damages would be fully compensatory, there was no showing of possible irreparable injury. Plaintiff properly does not complain of this ruling. Her claim was then limited to damages for loss of salary from November 17, 1971, when her forced maternity leave began, to January 31, 1972. Defendants Board of Education and Cupello moved to dismiss for want of federal jurisdiction because plaintiff "failed to state . . . infringement of a Federally protected right." The judge treated the motion as one for summary judgment under Fed.R.Civ.P. 56² and ruled for defendants on the ground that "the maternity leave provision at issue is not so lacking in rational basis as to constitute a denial of equal protection."

II

This quotation from the district judge's opinion brings us to the threshold question of what standard of review to apply in testing the constitutionality of the Board's maternity leave rule. In recent years, the Supreme Court has developed what has been characterized as "a rigid two-tier attitude"³ in equal protection cases. In most instances, statutory or regulatory classifications are presumptively constitutional and will not be disturbed unless they are without rational basis, resting "on grounds wholly irrelevant to the achievement" of some permissible state purpose. McGowan v. Maryland, 366 U.S. 420, 425, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); see Morey v. Doud, 354 U.S. 457, 463-464, 77 S.Ct. 1344, 1 L.Ed.2d 1485 (1957). In other cases, however, where the classification is grounded on certain "suspect" criteria, e. g., Graham v. Richardson, 403 U.S. 365, 372, 91 S. Ct. 1848, 29 L.Ed.2d 534 (1971), or where the classification impinges upon certain "fundamental" rights, e. g., Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), "strict" judicial scrutiny is required, and the classification will not stand unless justified by some "compelling governmental interest." E. g., Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969).

Plaintiff strenuously urges that the stringent standard of review is appropriate here. She argues that her case involves both fundamental rights ("the right to work at one's chosen profession . . . and the right to bear children")⁴ and a classification based on sex, an inherently suspect criterion. The Supreme Court, however, has not yet added sex to the list of suspect classifications⁵ — race, nationality, alienage — and while some courts⁶ and commentators⁷ have concluded otherwise, we accept arguendo the district court's

473 F.2d 633

assumption that rational basis scrutiny is the appropriate standard of review in this case. Cf. Gruenwald v. Gardner, 390 F.2d 591 (2nd Cir. 1968)

In several cases from its past Term, however, the Court has suggested that rational basis scrutiny is not so deferential a standard of review as had been previously and generally supposed. First, the Court has apparently narrowed the linguistic gap between the two standards; it has avoided the terminology of two-tiered review in some cases, by posing instead certain fundamental inquiries applicable to "all" equal protection claims.⁸ Thus, in Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972), invalidating a Louisiana workmen's compensation law that discriminated against dependent unacknowledged, illegitimate children, the Court stated, 406 U.S. at 173, 92 S.Ct. at 1405, that the "essential inquiry" in all equal protection cases is

inevitably a dual one: What legitimate state interests does the classification promote? What fundamental personal rights might the classification endanger?⁹

And in Police Department v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972), which held unconstitutional a Chicago ordinance that differentiated between types of peaceful picketing on the basis of subject matter, the Court stated, 408 U.S. at 95, 92 S.Ct. at 2290:

As in all equal protection cases, however, the crucial question is whether there is an appropriate governmental interest suitably furthered by the differential treatment. See Reed v. Reed, 404 U.S. 71, 75-77 92 S.Ct. 251, 253-254, 30 L.Ed.2d 225 (1971); Weber v. Aetna Casualty Co., 406 U.S. 164 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972); Dunn v. Blumstein, 405 U.S. 330, 335 92 S.Ct. 995, 31 L.Ed.2d 274 (1972).¹⁰

Moreover, the Court seems far less willing to speculate as to what unexpressed legitimate state purposes may be rationally furthered by a challenged statutory classification. Compare McGowan v. Maryland, supra, 366 U.S. at 425-426, 81 S.Ct. 1101, with Gunther, supra note 3, at 33 (discussing James v. Strange, 407 U.S. 128, 92 S.Ct. 2027, 32 L.Ed.2d 600 (1972)).

Finally, and perhaps most significantly, the Court's definition of what constitutes the necessary rational relationship between a classification and a legitimate governmental interest seems to have become slightly, but perceptibly, more rigorous. While under McGowan v. Maryland, supra, a classification is to be sustained unless it is "wholly irrelevant" to some permissible purpose, cases from the past Term spoke differently. In Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971), for example, which struck down a section of the Idaho probate code giving mandatory preference to men over women when competing for the right to administer an estate, Chief Justice Burger stated for a unanimous Court, 404 U.S. at 76, 92 S. Ct. at 254:

A classification "must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation. . . ." Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989 (1920). The question presented by this case, then, is whether a difference in the sex of competing applicants for letters of administration bears a rational relationship to a state objective that is sought to be advanced . . . . Emphasis added.

473 F.2d 634

See also Weber v. Aetna Casualty & Surety Co., supra, 406 U.S. at 175, 92 S. Ct. at 1406 ("The inferior classification of dependent unacknowledged illegitimates bears . . . no significant...