CH~1JB;;~s DRAFT

SUPREME COURT Of fiE UNITED STATES

Nos. 72-777 AND 72-1129

Cleveland Board of Education On Writ of Certiorari to et al., Petitioners, the United States Court

72-777 v. of Appeals for the Jo Carol LaFleur et al. Sixth Circuit.

Susan Cohen, PetitionC'r, 72-1129 v. Chesterfield County School

Board et al.

On Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit.

[January -, 1974]

MR. JusTICE PowELL, concurring in the result.

The Court today strikes down many aspects of the­Cleveland and Chesterfield County school board manda­tory maternity leave regulations. Despite its central emphasis on individualized treatment of pregnant teach­ers, the Court nevertheless allows school boards a measure of leeway to proceed on a class-wide basis. Thus, boards may demand in every caEe "substantial advance notice" of pregnancy, ante, at 10. They may also require all teachers undergoing normal pregnancies 1

to cease teaching "at some firm date durin the last few weeks of pregnancy ... ," ante, at 14, n. 3. To support the latter classification, school boards Inust be able to demonstrate that securing an adequate number of prop­erly skilled replacements requires that the substitutes be promised a definite employment date and a minimum period of employment. Ibid. Alternatively, under the Court's opinion, school boards may support a bare mini-

1 Abnormal pregnancies apparently may be treated like any other disability. Ante, at 8, n. 9.

LFP

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2 CLEYELAND BOARD OF EDUCATION v. LAFLEUR

mum cutoff point for all pregnant teachers by relying on a confirming consensus of medical opinion about teacher capabilities during the last weeks of pregnancy or on proof of the risks of delivery during that period. Ibid. The Court further holds that boards may in all cases restrict reentry into teaching to the outset of the school term following delivery. Ante, at 16.

In my opinion, school boards may constitutionally~ deal by classification with the real administrative prob­lems presented by teacher pregnancies. But the classifi­cations chosen by the boards must rationally further the state interests shmYn to be at stake. RognLltions d~:avl 6 i~~-eukl-meet--tlwl~

~~ The aspects of the regulations invalidated by the Court in my view do not. I concur, therefore, in the - + Court's judgment." But I reach that result by a d1 l..__~---·--

- nFutQ t"ltltt1~the one traveled by the majority.

I

The Court appears to rest its holding on three Eeparate bases. First, it finds that the "arbitrary cut-off dates"

"The Court doC's not nddm; .. ~ the impact of Tit. VII of the Civil Rights Act of 19o.J.. ante, at 5. n. R, nor do I.

" I tlo not ngre0, howev0r, with th0 Court's viC'\\' of ,,·hat n board must d0monstrntr to justify a prebirth cutoff period. Sec ante. at 14, n. 3. Nothing in the Constitution manclnt0~ the h0nv.v burden of justification the Court hn8 impoi'NI on the board,; in this r0gnrd . 1f f'c hool bonrd~ arr to br required to bn 8C' their policies on a "wid0spr0ad m0cliral ron~C'n8us" or on proof that thrir rhoic0 i ~ " tllC' on!~· rensonable m0thocl" or that needed scrvie0s will othrr­wi~r be impot>~ iblc to obtni11, ibid, thc~ · will bc clrpri,·cd of the

lntitudr e~::;rntinl to the pNformanrC' of th0ir duti0~. Sucl~~~~~@~~~~­l'C'St rietion ~ on th0 disrr0t ion of thef'C' local go\'C'rnmrntnl unit s arc11

- . , . 1 0 ,_,0\ I

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CLE\'ELAND BOARD OF EDUCATION v. LAFLEUR 3

embodied in the boards' regulations have "no rational relationship to the valid state interest of preserving con­tinuity of instruction." Ante, at 10. For me that is but one step in the appropriate analysis of the constitu­tional validity of the regulations, a point I will return to below.

Second. the Court finds that the effcnsi~·e portions of the regulations "penalize the pregnant teacher for decid­ing to bear a child ... ,"ante, at 7, impermissibly burden­ing a "constitutionally protected freedom." Ante, at 10. I do not subscribe to that thesis. Certainly, nothing in the records of these cases indicates a purpose to "penal­ize" childbearing. If anything, they suggest the opposite goal. The records, particularly the testimony of those involved in promulgating the regulations, convey a sense that a woman's appropriate role is to raise children and to do it at home. One may question whether a benign desire to compel expectant mothers to return to home life is misguided, where the result is forced unemployment for someone about to expand her family. But these are not cases where the State has set out to penalize childbearing.

I have no quarrel with the majority's view of the importance of the desire to bear children. Cf. San Antonio Independent School District v. Rodriguez, 411 U. S. 1, 34 n. 76 (1073). Nor do I doubt that these maternity leave regulations, whatever their purpose, do in fact impose burdens on childbearing. In some instances they may even have deterred it, although obviously not in these cases. But so do many things in life. such as limitations on welfare benefits. See Dand­ridge v. Williams, 397 U. S. 471 (1970). My concern is with the majority's apparent holding that ~ a constitutionally significant infringement of the

right to procreate. To my mind they do not. They arc not intended to dissuaue teachers from deciding to have

72-777 & 72-1129-COKCUR

4 CLEVELAND BOAHD OF EDUCATION v. LAFLEUR

children. Any deterrent or burdening impact they may have is purely incidental. Certainly not every govern­mental policy that renders childbearing burdensome violates one or the other of the Due Process Clauses. Undoubtedly Congress could, for example, constitution-ally seek to discourage excessive population growth by limiting the number of tax deductions for dependents. That would represent an intentional governmental effort to "penalize" childbearing. The regulations here plainly do not.

The Court avoids the use of the term "fundamenta~ in describing the chil~earing right it protects, and it ~ does not cite the Equal Protection Clause. N everthe-loss, its approach in dealing with this right seems to me in essential respects indistinguishable from the "strict scrutiny" level of modern two-tiered equal protection analysis.4 As strict scrutiny often does when "(uncia-mental" rights are tho premise for its invocation, the Court's reliance on the importance of childbearing sug-gests "freewheeling substantive due process .... " 5 If J I read the majority's holding correctly, it appears to l~~ cast doubt on whether the of chil earing is . an end government may pursue. Perhaps the Court does not intend that result. Yet its reasoning appears to lead to that conclusion, particularly its emphasis on

4 E. g., Gunther, "Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a New Equal Protection" 86 Harv. L. Rev. 1, 8-10, 17 (1972). Tho Court stresse that a "vital area of a teacher's constitutional liberty ... " is at stake, ante, at 7, hold:; tho boards to a high standard of justification in light of the im­portance of the right at issue, ante, at 7-8, 14, and require~ tho boards to resort to the lenst intrusive means. E. g., ante, at 11, citing Shelton v. Tucker, 364 U.S. 479 (1960). These arc the steps normally associated with strict scrutiny under the Equal Protection Clause. Cf. San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 51 (1973); In re Griffiths, 413 U.S. 717 (1973).

"Gunther, supra, nt 8.

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72-777 & 72-1129-CONCUR

CLEVELAND BOARD OF EDUCATION v. LAFLEUR 5

the stringent standards of justification a board must meet to support a minimal~vePsio~ on the right to bear children. See ante, at 14, n. 11; n. 3, supra.. In this respect I think the majority opinion illustrates the dangers of relying on substantive due process concepts in dealing with legislative classifications. Substantive due process addresses ends, not means. It has the po­tential for foreclosing entire areas from legislative pur­view. This is a deficiency not shared by what I believe to be the appropriate approach to these cases, equal pro­tection review. a

As a third basis for its holding, the Court returns to the "irrebuttable presumption" line of analysis that sur­faced in Stanley v. Illinois, 405 U. S. 645 (1972) (PowELL, J., not participating), and became the basis of decision in Vlandis v. Kline, 413 U. S. 441 (1973). I joined the opinion for the Court in Vlandis and continue fully to support the result reached there. The majority opinion in the present cases has compelled me, however, to re-examine the rationale of Vlandis and to conclude that I have substantial reservations about extending it

6 Sec MH. JusTICE MARSHALL's dissenting opinion in Mm·shall v. United States, -, U. S. -, - (1974). Therein MH. Jus'l'1CE MARSHALL recalls a point made by Mr. Justice Jackson some 25 years ago. Mr. Justice Jackson noted, in addressing an under­inclusive classification, as opposed to the overinclusive categorizations at issue in these cases:

"The burden should rest heavily upon one who would persuade us to use the due process clause to strike down a substantive Jaw or ordninance . . . . Invalidation of a statute or an ordin::mce on due process grounds leaves ungoverned and ungovernable conduct which many people find objectionable.

"Invocation of the equal protection clause, on the other hand, doP~ not disable any governmental body from dealing with the subject at hand. It merely means that the prohibition or regulntion must have a broader impact .... " Railway Express Agency v. New York, 336 U.S. 106, 111 (1949) (Separate opinion).

72-777 & 72-1129-CONCUR.

6 CLEVELAND BOARD OF EDUCATION v. LAFLEUR.

beyond the extreme facts of that case. There is much to what Mn. Jus·rrcE REHNQUIST says in his dissenting opinion, post, at -. about the implications of the "irrebuttable presumption" line of analysis for the tra­ditional legislative power to deal with problems by classification. As a matter of logic · ' c ifficult to see the terminus of the road that doctrine has opened up. If the Court, despite logic, uses this concept selectively, the concept at root "·ill be something else masquerading as a due proccess doctrine. That something else, of course, is the Equal Protection Clause.

II ./ These cases present precisely the kind of l'problcm

susceptible to treatment by classification. Most school teachers arc women, a certain percentage of them are pregnant at any given time, and pregna~cy is a normal biological function with, in the great majority of cases, a fairly well defined term. The constitutional difficulty is not that the boards attempted to deal with this con­stantly recurring practical problem by classification. Rather, it is that the boards chose o classi ca­tions. In so doing I believe they violated the Equal Protection Clause.'

I reach this conclusion under rational basis equal protection standards-"whether the challenged distinc­tion rationally furthers some legitimate, articulated state purpose." M cGinm:S Y. Royster, 410 U. S. 263, 270

7 The numerous lower federal courtR that ha\·e o\·rrtmned manda­tory mnternity leave regulations for 8Chool tracher8 h:\Yr do.nr :-:o on the ba:-:i:-; of the Equal Protection Clnusc, not dur procc..;<; not ions of irrrbuttable pre~umption:<. In addition to the Court of Appeals deri~ion in Cleveland Board of Ed·ucation v. Lafi'leur, 405 F. 2d 1184 (CA6 1972), and thr Di;;trict Court dcci~ ion in Cohen Y. Chester­field County Srhool Board, 326 F. Supp. 1159 (ED Ya. 1972), Rce the ca;;r:-; citrd by the Court, ante, at 5, n. fl. But ~rr. Podl!'ll:::-:l(J-::;t~on:::-. ~v-. ------1 Duval County School Board, 345 F. Supp. 103, 165 (1\'ID ' a. 1972}

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CLEYELAND BOARD OF EDUCATION v. LAFLEUR 7

(1073).~ It is true. of course, that at that level of scrutiny school boards have broad discretion in setting educational policy and in managing their own affairs. San Antonio Independent School District v. Rodriguez, 411 U. S. 1. 42-44 (1973). They must still maintain, however, a rational connection between their means and their articulated or obvious ends. That relationship has not been shown here. The most that these boards have been able to establish~ them the latitude tha'tl'S" their due. is that a few teachers undergoing normal preg­nancies may not be able to perform their jobs fully in the latter stages of pregnancy. That scintilla of ration­ality will not support the aspects of the regulations over­turned by the Court. The cutoff dates rejected by the Court arc irrationally overinclusive.

A range of school boa.rd purposes emerge from these cases. One. a concern for appearances, may be put to­one side. The boards seem to have abandoned any claim. that this provides a legitimate basis for the regu­lations. although there can be little doubt that it was in large measure responsible for their promulgation. Ante, at 8. n. 9. Four other possible goals require no extensive discussion, because the boards have failed to· establish that they arc imperilled by a normal pregnancy.

(nlternative ground). Cf. Cmr n, "Equnl Protertion of the Lnw: Prrgnant School Tracher~," 2R5 New England .T. l\fcdicinr 336; Comment, "Manclatorv l\fntrrni!Y LeaYe of Absenre Po1irie~-An

~· . Equal Protection ~ml)·si8," 45 Temp. L. Q. 240.

R There is th11s no orca~ion to dericlr whrt hC'l' ;.;rx-bn~ed rla~ifica-1ions pro Yoke ~trirt .i uclirial Rrru I iny, e. g., F'rontiero "· Ri('hardson, 411 U.S. 677 (1973), or inclrrd whethrr thr~r rrgulations inYolve ~ex cbs~ifirationR at :1ll. Whrtlwr tho challenged cutoff dates conRtitute sex rhtRsifirations or cli;.;:lbilit)' cla1<Sifiration. ·, they muR( at Ica~t

r:1tionallr ~et'\'r thr lrgit imatr intrre~ts of the hoarck Thrse clnR~i­firations go \\·dl be)·ond such int rre,.;tR. To the extent they do not rcnect on tela t rei notions of propriet)', the rrgnln tions a1 is.~ne nppea r to br bottomed on unsupported fiS."-lltn})tions nhout the nbilit~· of prr~nant women to perform their jobs.

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8 CLEVELAND BOARD OF EDUCATION v. LAFLEUR

These are a concern for teacher absenteeism. for class­room discipline, for the safety of school children, and for the safety of the expectant mother and her unborn child. In addition, administrative convenience scarcely demands the arbitrary, prebirth cutoff dates adopted by both boards and the three-month postbirth period of enforced unemployment imposed by the Cleveland Board. Cf. Reed v. Reed, 404 U. S. 71 (1071).

These cases come down to what the boards have re­ferred to at various points in their briefs and arguments as their interest in continuity of instruction. This label subsumes three related goals of undisputed importance to the boards. These are reducing teacher turnover, enhancing planning, and insuring constant classroom coverage by able-bodied teachers. The problem is that, on the records in these cases, the linkage between these legitimate purposes and the challenged cutoff points is so attenuated that it cannot be said that the means employed rationally further the board's ends. In­deed, as presently drawn the regulations are often contraproductive.

The boards have a legitimate interest in reducing the number of times a new teacher is assigned to a given class. It is particularly appropriate to avoid teacher turnover in the middle of a semester, since continuity in teaching approach as well as teacher-pupil relation­ships are otherwise forfeited. That aspect of the Cleve­land regulation limiting eligibility to return to the semester following delivery, which the Court approves, ante, at 16, rationally serves this legitimate state in­terest. It brings the teacher back to the classroom at the outset of a new term.0 But the four and five-month prebirth leave periods of the two regulations do not.

9 The additional three-month postbirth limitation in Cleveland regulations, on tlie other hand, is unacceptably overinclusive. The Court correctly strikes it down.

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CLEVELAND BOARD OF EDUCATION v. LAFLEUR 9·

As a number of lower federal courts have emphasized, such cutoff points arc more likely to prevent continuity of instruction than to preserve it.10 Because the cutoff dates will fall on dates throughout the school year, they often will remove a capable teacher from the classroom in the middle or near the ·end of a semester, thus pro­voking the disruption the boards hope to avoid.11

The boards' planning needs present another legitimate continuity of instruction problem. Boards must know when pregnant teachers will temporarily lay down their teaching responsibilities, so that a substitute may be programmed to fill the vacancy. But, as I read the Court, it does not strike down those aspects of the regu-lations that rationally further this interest. The Court recognizes that boards may require "substantial advance notice" of pregnancy, ante, at 10, which I take to be an

approval of the Chesterfield County six-m~o~1~1t~h~n~o~tr.~ic~~~· ;:::j:1t~~~~~~ - requirerwnt. This, coupled with a ~

term, will give that board maximum notice to secure a replacement plus a fixed date for the changeover. As long as it is given sufficient notice of a teacher's depar­ture date, a board's planning needs are, so far as w·~' re-----'" been shown, equally served by any cutoff date, including one a few weeks prior to term.

The notice provision of the Cleveland regulation is.---"', ~ puzzling. Under regu a wn,.

pregnant teachers are required to give notice two weeks prior to the date they must cease work. Unlike the

10 Green v. Waterford Board of Education, 473 F. 2d 629, 635 (CA2 1973); Heath v. Westerville Board of Education, 345 F. Supp. 501, 505 (SD Ohio 1972); Williams v. San Francisco Unified School District, 340 F. Supp. 438, 443 (ND Cal. 1972).

11 A cutoff date much closer to the term of a pregnancy, as ap­proved by the Court, will give the teacher and her board more leeway for agreeing on a termination date thnt will allow the teacher to withdraw, if she desires, at a logical brcnking point during or after a semester.

·.

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10 CLEVELAND BOARD OF EDUCATION v. LAFLEUR

Chesterfield County approach, the Cleveland notice clause is not independent of the prebirth cutoff date. By keying its notice requirement to its prebirth man­datory termination date, Cleveland has allowed itself a mere two week notice of its need to bring a substitute aboard. This arrangement cannot be said~ further the board's legitimate planning needs.

Finally, the continuity of instruction rubric encom­passes the boards' legitimate need to assure that the teachers on the job are up to the task-to assure that there is constant classroom coverage by able-bodied teachers. No one disputes that a school board may, in­deed must, concern itself with the physical and emo­tional capabilities of its teachers. But here again these boards have failed to demonstrate that the prebirth periods or the Cleveland ..[Post birth period rati~nally further the ends they are supposed to serve:_S The .0clett;h weight of the medical testimony adduced i1'i these cases is that most teachers undergoing normal pregnancies are quite capable, mentally and physically, of carrying out their responsibilities until some ill-defined point within a few weeks of term. Certainly the boards have m.acle little effort to contradict this conclm:ion. Thus, it ap­pears on the records here that by removing all teachers undergoing a normal pregnancy from the classroom so far in advance of term. the regulations in fact force large numbers of able-bodied teachers out of useful and gainful employment. Once more, such policies inhibit, rather than further, the goal of continuity of instruc­tion. They unnecessarily and prematurely introduce substitutes, with the attendant disruption that engenders.

It may be that school boards could demonstrate that a maternity leave policy of substantial duration is impor­tant to assuring an adequate pool of qualified substitutes for the dates and classes needed. These boards might have attempted to show, for example, that a sufficient

~-l'Y\OV\!9 ~ ... ~~~

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CLEVELAND BOARD OF EDUCATION v. LAFLEUR 11

number of acceptable substitutes will not leave other commitments unless they are promised a substantial period of employment. Had a showing along these lines been made, these cases might have been different for me, at least with respect to the board's legitimate interest in assuring constant classroom coverage by fully quali­fied teachers. But that showing has not been made.

III

_ ~~t,/rmrticularly in the case of the Chesterfield County regulation, the appropriate resolu­tiOn of the equal protect101i analysis outlined above is a close questio ~ School boards, confronted with sensitive and widely variable problems of public education, must be accorded wide latitude in the operation of school systems and in the adoption of rules and regulations of general application. A large measure of discretion is essential to preserve the vitality of these local, often elective, governmental units. Courts should be reluc­tant to impose their own policy judgments in this area. Judicial restraint and deference to the views of local school administrators is especially appropriate, it seems to me. where the constitutional standard invoked re­quires individualized, case-by-case determinations, rather than the application of general rules. Indeed, stringent application of the former standard may be impracticable in a large urbanized school district with thousands of teachers.

Despite the important reasons here for restraint. I nevertheless conclude that in t 1ese cases t e gap between the legitimate interests of the boards and the particular

'\ means chosen to attain them is too wide. A restructing d long-the- lines -indicffted in -the-Beu¥t/s OJ?inion seems ~~e. Accordingly, I concur in its result

t • • •

2nd DRAFr·

SUPREME COURT OF THE UNJTED STATE&

Nos. 72-777 A~D 72-1129

Cleveland Board of Education et al., Petitioners,

72-777 'v. J o Carol LaFleur et al.

Susan Cohen, Petitioner, 72-1129 v. Chesterfield County School

Board et al.

On Writ of Certiorari to ', the United States Court of Appeals for the Sixth Circuit.

On Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit.

[January -, 1974]

MR. JusTICE PowELL, concurring in the result.

I concur in the Court's result, but I am unable to join its opinion. In my view these cases should not be decided on the ground that the mandatory maternity leave regulations impair any right to bear children or create an "irrebuttable presumption." It seems to me that equal protection analysis is the appropriate frame of reference.

These regulations undoubtedly add to the bur­dens of childbearing. But certainly not every gov­ernment policy that burdens childbearing violates the Constitution. Limitations on the welfare benefits .a family may receive that do not take into account · the size of the family illustrate this point. See Dandridge v. Williams, 397 U. S. 471 ( 1970). Undoubtedly Con­gress could, as another example, constitu.tionally seek to discourage excessive population growth by limiting tax deductions for dependents. That would represent an intentional governmental effort to "penalize" child­bearing. See ante, at 7. The regulations here d() not have that purpose. Their deterrent impact is

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2 CLEVELAND BOARD OF EDUCATION v. LAFLEUR

wholly incidental. If some intentional efforts to penalize childbearing are constitutional, and if Dandridge, supra, means what I think it does, then certainly these regula­tions are not invalid as an infringement of any right to procreate.

I am also troubled by the Court's return to the "irre­buttable presumption" line of analysis of Stanley v. Illinois, 405 U. S. 645 ( 1972) (PowELL, J., not partici­pating), and Vlandis v. Kline, 412 U. S. 441 ( 1973) . Although I joined the opinion of the Court in Vlandis and continue fully to support the result reached there . the present cases have caused me to re-examine the ''irrebuttable presumption" rationale. This has led me to the conclusion that the Court should approach that doctrine with extreme care. There is much to what MR. J usTICE REHNQUIST says in his dissenting opinion, post, at -. about the implications of the doctrine for the traditional legislative power to operate by classi­fication. As a matter of logic, it is difficult to see the terminus of the road upon which the Court has em­barked under the banner of "irrebuttable presumptions.n If the Court nevertheless uses "irrebuttable presump­twn" reasoning selectively, the concept at root often will be something else masquerading as a due process doc­trine. That something else, of course, is the Equal Protection Clause.

These cases present precisely the kind of problem susceptible to treatment by classification. Most school teachers are women, a certain percentage of them are pregnant at any given time, and pregnancy is a normal biological function possessing, in the great majority of cases, a fairly well defined term. The constitutional difficulty is not that the boards attempted to deal with this problem by classification. Rather, it: is that the boards chose irrational classifications, .

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CLEVELAND BOARD OF EDUCATION v. LAFLEUR 3

A range of possible school board goals emerge from the cases. Several may be put to one side. The rec­ords before us abound with proof that a principal pur­pose behind the adoption of the regulations was to keep visibly pregnant teachers out of the sight of school children.' The boards do not advance this today as a legitimate objective, yet its initial primacy casts a shadow over these cases. Moreover, most of the after­the-fact rationalizations proposed by these boards are unsupported in the records. The boards emphasize

1

teacher absenteeism, classroom discipline, the safety o~ school children, and the safety of the expectant mothet and her unborn child. No doubt these are legitimate concerns. But the boards have failed to demonstrate that these interests are in fact threatened by the con-I tinued employment of pregnant teachers. I

To be sure, the boards have a legitimate and important mterest in fostering continuity of teaching. And, eve1~ a normal pregnancy may at some point jeopardize tha interest. But the classifications chosen by these beords so far as we have been shown, are either contrapro­ductive or irrationally overinclusive even with regard to this significant, nonillusory goal. Accordingly, in my opinion these regulations are invalid under r~:ttional

basis standards of equal protection review.2

1 See, e. g., ante, at 8, n . 9. 2 I do not reach the question whether sex-based classificatiOns

invoke 8tnct judicial scrutiny, e. g., Fmntie1'o v. Richa1'dson, 4111 U S. 677 (1973), or whether these regulations involve sex classifi­cations at all. Whether the challenged aspects of the regulation~! constitute sex classifications or disability classifications, they must at least ratiOnally serve some legitimate articulated or obvious stat intt>rest. While there are indeed some legitimate state interests at stake here, it has not been shown that they are rationally fur­thered by the challenged portion.s of these regulations"

,, '

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4 CLEVELAND BOARD OF EDUCATION v. LAFLEUR

In speaking of continuity of teaching, the boards are' referring in part to their valid interest in reducing th~ number of times a new teacher is assigned to a given class. It is particularly appropriate to avoid teacher turnover in the middle of a semester, since continuity in teaching approach as well as teacher-pupil relationships'· are otherwise impaired. That aspect of the Cleveland regulation limiting a teacher's eligibility to return to the classroom to the semester following delivery, which the Court approves, ante, at 16, rationally serves this legitimate state interest. But the four and five month prebirth leave periods of the two regulations and the three month post-birth provision of the Cleveland reg­ulation do not. As the Court points out, ante, at 10, such cutoff points are more likely to prevent continuity of teaching than to preserve it. Because the cutoff dates occur throughout the school year, they inevitably result in the removal of many capable teachers from the class~ room in the middle or near the end of a semester',· thus provoking the disruption the boards hope to avoid.

The boards' reference to continuity of teaching alsa encompasses their need to assure constant classroom: coverage by teachers who are up to the task. This interest is obviously legitimate. No one disputes that a school board must concern itself with the physical and emotional capabilities of its teachers. But the objec­tionable portions of these regulations appear to be bot-· tomed on factually unsupported assumptions about the· ability of pregnant teachers to perform their jobs. 'fhe' overwhelming weight of the medical testimony adduced in these cases is that most teachers undergoing normal pregnancies are quite capable of carrying out their responsibilities until some ill-defined point a short period prior to term. Certainly the boards have made little effort to contradict this conclusion. Thus, it appears­that by forcing all pregnant teachers undergoing a normal.

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CLEVELAND BOARD OF EDUCATION v. LAFLEUR 5

pregnancy from the classroom so far in advance of term, the regulations compel large numbers of able-bodied teachers to quit work.~ Once more, such policies inhibit, rather than further, the goal of continuity of teaching. For no apparent reason, they remove teachers from their students and require the use of substitutes.

The boards' reliance on the goal of continuity of teach­mg also takes into account their obvious planning needs. Boards must know when pregnant teachers will tempo­rarily cease their teaching responsibilities, so that sub­stitutes may be scheduled to fill the vacancies. And, planning requires both notice of pregnancy and a fixed termination date. It appears, however, that any termi­nation date serves the purpose.1 The choice of a cutoff date that produces several months of forced unemploy~ nwnt is thus wholly unnecessary to the planning of the boards. Certainly nothing in the records of these cases Zgljsptss +q ltbe contrary.

For the above reasons, I believe the linkage between the boards' legitimate ends and their chosen means is too attenuated to support those portions of the regula~ tions overturned by the Court. Thus., I concur in the Court's result. But I think it important to emphasize the degree of latitude the Court, as I read it, has left the boards for dealing with the real and recurrent prob~ ]ems presented by teacher pregnancies, Boards may demand in every case "substantial advance notice of

~ Teacher::; who undergo abnormal pregnancies may well be d1s" abled, Pither temporarily or for a substantial period. But as I read the Court, boards may deal with abnormal pregnancirs like any other disability. Ante, at 9, n. 10.

4 On!' may question, however, whether planning nPeds are well ~(·rvrd by thr mere two-WPPk gap between noticP and drparturp ::;et forth in thE' Cleveland regulation. The brief notice thE> Cleveland hoard ha::; allowed it:;elf rasts some doubt on that board's rrliance on plannmg needs ...

72-777 & 72-1129-CONCUR.

~ CLEVELAND BOARD OF EDUCATION v. LAF:f.,EUR . [pregnancy] .... " Ante, at 10. Subject to certain restrictions, they may require all pregnant teachers ta cease teaching "at some firm date during the last few weeks of pregnancy .... " /d., at 14, n. 13.5 The Court further holds that boards may in all cases restrict re-entry into teaching to the outset of the school term following delivery. /d., at 16.

In my opinion, such class-wide rules for pregnant teachers are constitutional under traditional equal pro­tection standards.6 School boards, confronted with sen­sitive and widely vatiable problems of public education, must be accorded latitude in the operation of school systems and in the adoption of rules and regulations of general application. E. g., San Antonio Independent School District v. Rodriguez, 411 U. S. 1, 42-43 (1973) . A large measure of discretion is essential to the effective discharge of the duties vested in these local, often elec-· ~ive, governmental units. My concern with the Court's

5 The Court's language does not specify a particular prebirth cutoff point, and we need not decide that issue, as these boards have attempted to support only four- and five-month dates. In l~ht of the Court's language, however, I would think that a four­week prebirth period would be acceptable. I do not agree with the Court's view of the stringent standards a board must meet to justify a reasonable prebirth cutoff date. See ante, at 14, n. 13 .. Nothing in the Constitution mandates the heavy burden of justifi­cation the Court has imposed on the boards in tins regard. If school boards must base their policies on a "widespread medical consensus ... ," the "only reasonable method . . . " for accomplishlllg a goal, or a demonstration that needed service~ will otherwise be impossible to obtain, ibid., they may be senously handicapped m the performance of their duties.

6 As the Court notes, these cases arose prior to the recent amendment extending Tit. VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e et seq. to state agencies and educatiOnal in­stitutions. Pub. L. 92-261; 83 Stat. 103. See ante, at 5--6, n. 8. Like the Court, I do not address the impact of Tit. VII on manda­tory maternity leave regulations ..

72-777 & 72-1129-CONCUR

CLEVELAND BOARD OF EDUCATION v. LAFLEUR 7

opinion is that, if carried to logical extremes, the empha­sis on individualized treatment is at war with this need for discretion. Indeed, stringent insistence on individu­alized treatment may be quite impractical in a large school district with thousands of teachers.

But despite my reservations as to the rationale of the majority, I nevertheless conclude that in these cases the gap between the legitimate interests of the boards and the particular means chosen to attain them is too wide. A restructuring generally along the lines indicated in the Court's opinion seems unavoidable. Accordingly, I con­cur in its result.

1st DRAFT ·.

SUPREME COURT OF THE UNITED STATES

Nos. 72-777 AND 72~1129

'Cleveland Board of Education et al., Petitioners,

72-777 v. J o Carol LaFleur et al.

Susan Cohen, Petitioner, 72-1129 v. Chesterfield County School

Board et al.

On Writ of Certiorari to .the United States Court of Appeals for the Sixth Circuit.

On Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit.

[January -, 1974]

MR. JusTICE PowELL, concurring in the result.

I concur in the Court's result, but I am unable to join its opinion. In my view these cases should not be decided on the ground that the mandatory maternity leave regulations impair any right to bear children or create an "irrebuttable presumption." It seems to me that equal protection analysis is the appropriate frame of reference.

I do not doubt that these regulations add to the burdens of childbearing. But certainly not every gov­emment policy that burdens childbearing violates the Constitution. Limitations on the welfare benefits a family may receive that do not take into account the size of the family illustrate this point. See Dandridge v. Williams, 397 U. S. 471 (1970). Undoubtedly Con­gress could, as another example. constitutionally seek to discourage excessive population growth by limiting tax deductions for dependents. That would represent an intentional governmental effort to "penalize'' childbear­ing. See ante, at 7. The regulations here plainly do not have that purpose. Their deterrent impact is

72..,_777 & 72-1129-CON'CU:U

Z CLEVELAND BOARD OF EDUCATION v. LAFLEUR . wholly incidentaL If some intentional efforts to penalize childbearing are constitutional, and if Dandridge, supra, means what I think it does, then certainly these regula· tions are not invalid as an infringement of any right to procreate.

I am also troubled by the Court's return to the "irre­buttable presumption" line of analysis of Stanley v. Illinois, 405 U. S. 645 ( 1972) (PowELL, J., not partici· pating), and Vlandis v. Kline, 412 U. S. 441 ( 1973). Although I joined the opinion of the Court in Vlandis and continue fully to support the resu1t reached there, the present cases have caused me to re-examine the 11 irrebuttable presumption" rationale. This has led me to the conclusion that the Court should approach that doctrine with extreme care. There is much to what MR. JusTICE REHNQUIST says in his dissenting opinion, post, at -, about the implication of the doctrine for the traditional legislative power to operate by classi­fication. As a matter of logic, it is difficult to see the terminus of the road upon which the Court has em­barked under the banner of "irrebuttable presumptions." If the Court nevertheless uses "irrebuttable presump­tion" reasoning selectively, the concept at root often will be something else masquerading as a due process doc~ trine. That something else, of course, is the Equal Protection Clause ..

These cases present precisely the kind of problem susceptible to treatment by classification. Most school teachers are women, a certain percentage of them are pregnant at any given time, and pregnancy is a normal biological function possessing, in the great majority of cases, a fairly well defined term. The constitutional difficulty is not that the boards attempted to deal with this problem by classification. Rather, it is that the boards chose irrational classifications,

.-

72-777 & 72-1129-CONCUR

CLEVELAND BOAHD OF EDUCATION v. LAFLEUH 3

A rang(> of possible school board goals emerge from tlw cases. Several may be put to one side. The rec .. ords before us abound with proof that a principal pur­pose b(:>hind the adoption of the regulations was to keep visibly pregnant teachers out of the sight of school children.' The boards do not advance this today as a legitimate objective, yet its initial primacy casts a shadow over these cases. Moreover, most of the after­the-fact rationalizations proposed by these boards are unsupported in the records. The boards emphasize teacher absenteeism. classroom discipline. the safety of school children. and the safety of the expectant mother and her unborn child. )J"o doubt these are legitimate concerns. But the boards have failed to demonstrate that thes(:> interests are in fact threatened by the con­tinued employment of pregnant teachers.

To b(:> sure, the boards have a legitimate and important interest in fostering continuity of teaching. And, even a normal pregnancy may at some point jeopardize that intrrest. But the classifications chosen by these beards. so far as we have been shown. are either contrapro­cluctiv(:> or irrationally overinclusive even with regard to this significant, nonillusory goal. Accordingly, in my opinion these regulations are invalid under rational basis standards of equal protection review.2

1 S<>r, e. g .. ante, nt 8, n. 9. 2 1 do not reaeh thP fJIH'Htion wlwthrr ~ex-bnsed clnH~ification~

invoke ~tnct judicinl Hcrutiny, e. g., Froutirro v. Richardson, 411 (! . 8. (i77 ( 19n), or whet lwr t hr:>r rrgula tion:; involve srx clas::;ifi­ciltion::; at all. Whrthrr t hr ehallengrd a::;prcts of the regulat ionK c·on::<titutr ,.;rx clas.~ification~ or disabilit~· clas::;ificntions, thry mu~;t

at le>a ~St rationnll~· "'rrve !<ome legitimntr nrticulatrd or obviou" "'tatr intrrr><t. While thNe nrr mdPC'd some leg1timatr stnt<' intrrP"'" at stakr hrre, they are not rationall~· furthered b~· the objectwllable portion.· of the;;(' regulation • .,;.

72-777 & n-1129-CONCUR

4 CLEVELA~D BOAHD OF EDUCATION v. LAFLEUR

In speaking of continuity of teaching, the boards are referring in part to their valid interest in reducing the number of times a new teacher is assigned to a given class. It is particularly appropriate to avoid teacher turnover in the middle of a semester, since continuity in teaching approach as well as teacher~pupil relationships are otherwise impaired. That aspect of the Cleveland regulation limiting a tRacher's eligibility to return to the classroom to the semester following delivery, which the Court approves. ante, at 16, rationally serves this legitimate state interest. But the four and five month prebirth leave periods of the two regulations and the three month post~birth provision of the Cleveland reg~ ulation do not. As the Court points out. ante, at 10, such cutoff points arc more likely to prevent continuity of teaching than to preserve it. Because the cutoff dates occur throughout the school year, they inevitably result in the removal of many capable teachers from the class~ room in the middle or near the end of the semester, thus provoking the disruption the boards hope to avoid.

The boards' reference to continuity of teaching also encompasses their need to assure coustan t classroom coverage by teachers who are up to the task. This interest is obviously legitimate. l'\o one disputes that a school board must concern itself with the physical and emotional capabilities of its teaclwrs. But the objec­tionable portions of these regulations appear to be bot­tomed on factually unsupported assumptions about the ability of pregnant teachers to perform their ·jobs. The overwhelming weight of the medical testimony adduced in these cases is that most teachers undergoing normal pregnancies are quite capablf' of carrying out their responsibilities until some ill-defined point a short period prior to term. Certainly the boards have made little

· effort to contradict this conclusion . Thus, it appears that by forcing all pregnant teachers undergoing a norrnal

"12-'117 & 72-1129--CONCUlt

CLEVELAND BOARD OF EDUCATION v. LAFLEUR 5

pregnancy from the classroom so far in advance of term, the regulations compel large numbers of able-bodied teachers to quit work." Once more, such policies inhibit, rather than further, the goal of continuity of teaching. For no good apparent reason, they remove teachers from their students and require the use of substitutes.

The boards' reliance on the goal of continuity of teach­ing also takes into account their obvious planning needs. Boards must know when pregnant teachers will tempo­rarily cease their teaching responsibilities, so that sub • .stitutes may be scheduled to fill the vacancies. And, planning requires both notice of pregnancy and a fixed termination date serves the purpos~;· The choice of a termination date that produce.s sev{~ral months of forced unemployment is thus wholly unnecessary to the planning needs of the boards. Certainly nothing in the records of these casf's indicates to the contrary.

For the above reasons, I beli~we the linkage between the boards' legitimate ends and their chosen means is too attenuated to support those portions of the regula­tions overturned by the Court, Thus. I concur in the Court's result. But I think it important to emphasize the degree of latitude the Court, as I r~ad it. has left the boards for dealing with the real and r~curn;~nt prob­lems presented by teacher pregnancies. Boards may demand in ever;>' case "substantial advance noticf' of [pregnancy] , " Ante, at 10. Subj~ct to certail1

a Teachers who undergo abnormal pregnanri(1s may well Jw di;;­nbled, either trmporarily or for a ::;ubstnntial periocl . But as l read thr Court, boards ma~· deal with abnormal pregJwnriP:s likr any other disability. AntP, nt 9, n. 10.

4 One may question, howt>ver, wlwther planning need~ arr wrll SNved by the merr two-wrrk gap betwren noticr all(! dc•parturP ::;et forth in the Clevrlnncl regula tlon. The brirf notice tlw Clrvrland board has allowrd itself east::-: some doubt on that board's rPiianeP on planning 11eeds.

72-777 & 72-1129-CON"CUR

6 CLEVELAND BOAHD OF EDUCATION v. LAFLEUH

restrictions. they may require all pregnant teachers to cease teaching "at so1ne firm dat0 during the last few weeks of pregnancy .... " !d., at 14, n. 13." Tlw Court further holds that boards may in all cases restrict re-entry into teaching to the outset of the school term following delivery. !d., at 16.

In my opinion. such cla..:s-widc rules for pregnant teachers arc constitutional under traditional equal pro­tection standards." School boards. confronted with sen­sitive and \videly variable problems of public education. must be accorded latitude in th(' operation of school systems and in the adoption of rules and regulations of general application. E. g., San A nto11io Independent School District v. Rodriyuez, 411 U.S. 1. 42-43 (1973). A large measure of discretion is essential to the effcctiv(' discharge of the duties vested in these local, often elec­tive, governmental units. My concern v.·itb the Court's opinion is that, if carried to logical extremes. the empha-

"The Court'::; languagr dors not stweif\ n part iculnr prrbirt h cutoff point, and wr nerd not drcidr that i~sur , Hi:' tlw~<' hoards have attemptrd to support onl~· four- and fivr-month dnte". In light of thr Court'::; languagr, howr\·rr, I would think that a fom­week prrl>irt h period would br arr<'ptnbl<'. I do not a~rr<' with the Court's view of thr stringC'nt "tandnrd:; a board must m<'rt to justif~· a reasonablr prrbirth cutoff datr. Se<' antP, at 1-t, n. 1:3 . Nothing in the Constitution mandates til<' lwav~· burden of ju,tifi­cntion thr Court. hns impol:'f'(l on thr boards in thi~ r<>~ard. If school board~ must ba:-;<' thrir poliri<'s on n "wid<'spr!'ad mrdieal eonsensus ... ," til<' ·'only rrasonable m<'thod . .. . " or :1 demon­r.;tmtion that needed ~ervires will otherwi:::<' b(' impos:sibl<' to obtnin. ibid., the~· mny be ><<'riou;,;l~· handirapprd in the performam'<' of their duti<'s.

{; Ati the Comt note~, lhrsr cas<'~> aro"e prior to thr r<'cent amendment <'xtrndinJZ: Tit. VII of tlw Civil Hight" Aet of 19()4, ~2 U. S. C. § 2000e et seq. to ~;tat<' ageneies and rdueatimwl 111-

stitution::;. Pub. L. 92-261; 83 Stat. 10:3. See ante, at 5-6. n. 8. Like th<' Court, I do not addr<'& the impart of Tit. YII on manda­tory maternity leave regu!a.tions.

72-777 & 72-1129-CONCUR

CLEVELAND BOARD OF EDUCATION v. LAFLEUR 7

sis on individualized treatment is at war with this need for discretion. Indeed, stringent insistence on individu­alized treatment may be quite impractical in a large school district with thousands of teachers.

But despite my reservations as to the rationale of the majority, I nevertheless conclude that in these cttses the gap between the legitimate interests of the boards and the particular means chosen to atta.ip them is too wide. A restructuring generally along the lines indicated in the Court's opinion seems unavoidable. Accordingly, I con­cur in its result.

1st DRAFT

.,SUPREME COURT OF THE UNITED STATES

Nos. 72-777 AND 72-112Q

"Cleveland Board of Education et al., Petitioners,

72-777 v. Jo Carol LaFleur et al.

Susan Cohen, Petitioner, 72-1129 v. Chesterfield County School

Board et al.

On Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit.

On Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit.

[January -, 1974]

MH. JusTICE PowELL, concurring in the result.

I concur in the Court's result, but I am unable to join its opinion. In my view these cases should not be decided on the ground that the mandatory maternity leave regulations impair any right to bear children or create an "irrebuttable presumption." It seems to me that equal protection analysis is the appropriate frame

Lr:P

of reference. - ~ ~ d - I- 00-not oobt that - ~~se regulations [a"dd to the burdens of childbearipg. 13ut certainly not every gov­ernment policy that burdens childbearing violates the Constitution. Limitations on the welfare benefits a family may receive that do not take into account the size of the family illustrate this point. See Dandridge v. Williams, 397 U. S, 471 ( 1970). Undoubtedly Con­gress coqld, as another example, constitutionally seek to discourage excessive population growth by limiting tax deductions for dependents. That would represent an intentional governmental effort to "penalize" childbear--------­ing. See ante, at 7. The regulations here ~ -(J

qot have that purpose. Their deterrent impact is

'f'ir-777 & 72-1129-CON'CU:f{;

Z CLEVELAND BOARD OF EDUCATION v. LAFLEUR

wholly incidentaL If some intentional efforts to penalize childbearing are constitutional, and if Dandridge, supra, means what I think it does1 then certainly these regula­tions are not invalid as an infringement of any right to pr(j()reate.

I am also troubled by the Court's return to the "irre­buttable presumption" line of analysis of Stanley v. Illinois, 405 U. S. 645 ( 1972) (PowELL, J., not partici­pating), and Vlandis v. Kline, 412 U. S. 441 (1973). Although I joined the opinion of the Court in Vlandis and continue fully to support the result reached there, the present cases have caused me to re-examine the ''irrebuttable presumption" rationale. This has led me to the conclusion that the Court should approach that doctrine with extreme care. There is much to what MR. JusTICE REHNQUIST says in his dissenting opinion, f'5\ post, at -, about the implication.[Of the doctrine for \V the traditional legislative power to operate by classi­fication. As a matter of logic, it is difficult to see the terminus of the road upon which the Court has em-barked under the banner of "irrebuttable presumptions." If the Court nevertheless uses "irrebuttable presump-tion" reasoning selectively, the concept at root often will be something else masquerading as a due process doc~ trine. That something else, of course, is the Equal Protection Clause ..

These cases present precisely the kind of problem susceptible to treatment by classification. Most school teachers are women, a certain percentage of them are pregnant at any given time, and pregnancy is a normal biological function possessing, in the great majority of cases, a fairly well defined term. The constitutional difficulty is not that the boards attempted to deal with this problem by classification, Rather, it is that the boards chose irrational classifications,

72-777 & 72-1129-CONCUR

CLEVELAND BOARD OF EDUCATION v. LAFLEUH 3

A range of possible school board goals emerge from the cases. Several may be put to one side. The rec .. ords before us abound with proof that a principal pur­pose behind the adoption of the regulations was to keep visibly pregnant teachers out of the sight of school children. 1 The boards do not advance this today as a legitimate objective, yet its initial primacy casts a shadow over these cases. Moreover, most of the after­the-fact rationalizations proposed by these boards are unsupported in the records. The boards emphasize t<'acher absenteeism, classroom discipline, the safety of school children, and the safety of the expectant mother and her unborn child. No doubt these are legitimate concf'rns. But the boards have failed to demonstrate that thesf' interests are in fact threatened by the con­tinued employment of pregnant teachers.

To bf' sure, the boards have a legitimate and important mtercst in fostering continuity of teaching. And, even a normal pregnancy may at some point jeopardize that mterest. But the classifications chosen by these beords. so far as we have been shown. are either contrapro­ductive or irrationally overinclusive even with regard to this significant, nonillusory goal. Accordingly, in my opinion these regulations arc invalid under rational basis standards of equal protection review/

l 8<•£>, e. g., ante. at 8, n. 9. 2 I do not reach the question wlwther sex-based cla~sificntion:::

invoke ~tfl<'t judicial ~crutiny, e. g., Frontiero v. Richardson, 411 ll S. 677 (197:{), or whetlwr the'*' regulation:> mvolve sex clasHifi­cntJom; at all Whether the challenged aspects of the regulations c•onstitutr sex cla:;.o;;ifications or disability classifications, they must at least rationally serve some legitimate articulated or obvious state intere~t. While there arr ind('('d HOme lcgitimatr statr intrrestH ~ () at Htake herr, rationally furthered by the ~jeeti9HRble c;r- -- - · -- -~~ portions of these regulation.;.

72-777 & 72-1129-CONCUR

4 CLEVELAND BOARD OF EDUCATION v. LAFLEUR

In speaking of continuity of teaching, the boards are referring in part to their valid interest in reducing the number of times a new teacher is assigned to a given class. It is particularly appropriate to avoid teacher turnover in the middle of a semester, since continuity in teaching approach as well as teacher-pupil relationships are otherwise impaired. That aspect of the Cleveland regulation limiting a teacher's eligibility to return to the classroom to the semester following delivery, which the Court approves, ante, at 16, rationally serves this legitimatf' state interest. But the four and five month prebirth leave periods of the two regulations and the three month post-birth provision of the Cleveland reg­ulation do not. As the Court points out, ante, at 10, such cutoff points are more likely to prevent continuity of teaching than to preserve it. Because the cutoff dates occur throughout the school year, they inevitably result in the removal of many capable teachers from the class" ./C'. room in the middle or near the end of ~cY thus provoking the disruption the boards hope to avoid.

The boards' reference to continuity of teaching also encompasses their need to assure constant classroom coverage by teachers who are up to the task. This interest is obviously legitimate. No one disputes that a school board must concem itself with the physical and emotional capabilities of its teachers. But the objec­tionable portions of these regulations appear to be bot­tomed on factually unsupported assumptions about the ability of pregnant teachers to perform their ·jobs. The overwhelming weight of the medical testimony adduced in these cases is that most teachers undergoing normal pregnancies are quite capable of carrying out their responsibilities until some ill-defined point a short period prior to term. Certainly the boards have made little effort to contradict ' this conclusion. Thus, it appears that by forcing all pregnant teachers undergoing a normal

cl o.""t:it . J.. t 0-pf€'M $.)

i~.oweverL, ~ -tet-~ ~a}u,"""

12-'117 & 72-11:29-CONCUlt

CLEVELAND BOARD OF EDUCATION v. LAFLEUH 5

pregnancy from the classroom so far in advance of term, the regulations compel large numbers of able-bodied teachers to quit work.a Once more. such policies inhibit, rather than further, the goal of continuity of teaching. For no ~)parent reason, they remove teachers from their students and require the use of substitutes.

The boards' reliance on the goal of continuity of teach­ing also takes into account their obvious planning needs. Boards must know when pregnant teachers will tempo­rarily cease their teaching responsibilities, so that sub~ ,stitutes may be scheduled to fill the vacancies. And. planning requires both notice of pregnancy and a fixed ermmatwn date serves the purpose," The choice of a

~rttl:intttiffllldate that produce,s several months of forced unemployment is thus wholly unnecessary to the planning needs of the boards. Certainly nothing in the records of these cases indicates to the contrary.

For the above reasons, I beli~ve the linkage between the boards' legitimate ends and their chosen means is too attenuated to support those portions of the regula­tions overturned by the Court, Thus, I concur i11 the Court's result. But I think it important to emphasize the degree of latitude the Cqurt, as I r('lad it. has left the boards for dealing with the real ancl r~cummt prob­lems presented by teacher pregnancies. Boards may demand in ever;Y case ''substantial advance notice of [pregnancy] , " Ante, at 10. Subj~ct to certain

:t Teachers who undergo abnormal pregnancifts may well be di::;­llbled, either temporarily or for a :mbstantia! prriocl . But as I read thr Court, boards may deal with abnormal prrgnanrir,; lik<· any other disability. Ante, at 9, n. 10.

" One may question, however, whether planning needs are wrll ,;ervrd b~· the mere two-week gap brtwern noticr and departm<• set forth in the Cleveland regulation . The brief notice thr Cleveland board has nllowecl itself cast:; ~ome doubt on that board's rrlianrr on planning needs.

t/

72-777 & 72-1129-CONCUR

6 CLEVELAND EOAHD OF EDllCATIOX 11. LAFLEUH

restrictions, they may require all pregnant teachers to cease teaching "at some firm date during the last few weeks of pregnancy .... " ld., at 14, n. 13." The Court further holds that boards may in all cases restrict re-entry into teaching to the outset of the school term following delivery. /d., at 16.

In my opinion. such class-wide rules for pregnant teachers are constitutional umler traditional equal pro­tection stanuards." School boards. confronted with sen­sitive and widely variable problems of public education. must be accorded latitude in the operation of school systems and in the adoption of rules and regulations of general application. E. g., San Antonio Independent School District v. Rodriuuez, 411 P. S. 1. 42-43 ( 1073). A large measure of discretion is essential to the effpctive discharge of the duties vested in these local , often elec­tive, governmental units. My concem with the Court's opinion is that, if carried to logical extremes, the empba-

5 The Court's lnn.guage doe,; not ~Jweit\ a partieular prrbirth c11toff point, and we nerd not drride that i><sur, ao; thr~e board::~ have attempted to o;upport only fom- all(] fivr-mon,th datl's. Iu light of thr Court';,; language, howrvrr, I would t hiuk that a fom­week prebirth period would br arreptnbh•. I do not agre<' with the Court's view of thr stringrnt stnndt~rds a bonrcl must mert to justif~· a reasonnble prebirth rutoff dHtr. Ser ante, at 14, n. 1:{. Nothing in the Con><titution mnndatr:; thr henv~· burden of ju~titi­

cation the Court. has impo:,;ed 011 t hr board>< iu this re!-(a rd . If school boards mu~t base t hrir policiC'>< un a "wide;,pread nwdirnl ronsensus . . . ," the "only rea:;onablr mrthod . . . or a emon­stration that nrrded :;ervires will othrrwi::;r be impo,;siblr to obtllm, 1:bid., thry may be ~>eriou::;ly handirapprd in the performance of their dutirs.

6 As the Court notes, thrsr cn;;r::: :1rose prior to thr rrcrnt amendment extending Tit. VII of thr Civil Right ~ Act of 19()4, 42 U. S. C. § 2000e et seq. to stat<' agrncirs and rducational in~

Rtitution::;. Pub. L. 92-261 ; 83 Stat. 10:3 . Srr ante, at 5-G. n. 8. Like the Court, I do not addrr:ss the impart of Tit . VII on mauda­tory maternity leave regulation~-.

r --· I .. ! I

72-777 & 72- 1129-CONCUR

CLEVELAND BOARD OF EDUCATION v. LAFLEUR 7 I

sis on individualized treatment is at war with this need for discretion. Indeed, stringent insistence on illdividu­alized treatment may be quite impractical in a large school district with thousands of teachers.

But despite my reservations as to the rationale of the majority, I nevertheless conclude that in these cases the gap between the legitimate interests of the boards and the particular means chosen to attain them is too wide. A restructuring generally along the lipes indicated in the Court's opinion seems unavoidable. Accordingly, I con­cur in its result.

) ) -------

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