Appeal from an order of the United States District Court for the Eastern District of New York, the Honorable Edward R. Neaher, Judge, dismissing plaintiff's allegations of age discrimination in violation of the equal protection and due process clauses of the Fourteenth Amendment for want of a substantial federal question.
Hays and Gurfein, Circuit Judges, and Frederick van Pelt Bryan, District Judge.*fn*
Appellant, Lois Palmer, commenced this action under 42 U.S.C. § 1983 (1970) for age discrimination in violation of the equal protection and due process guarantees of the Fourteenth Amendment. The district court granted the defendants' motion to dismiss for want of a substantial federal question. For the reasons stated below, we affirm the dismissal of the complaint.
The facts are undisputed. Appellant has been a teacher since 1943. She has been employed by the defendant Copiague Union Free District #5 as a kindergarten teacher since the 1961-62 school year. She received tenure at the end of the 1963-64 school year. In February 1975, she reached the age of 70. On May 15, 1975, she met with defendant N. Paul Buscemi, the Copiague superintendent of schools. He informed her that she was to be retired at the end of the school year because she had reached the retirement age of 70. This decision was subsequently ratified by the Copiague school board, and the New York State Retirement System was directed to place Mrs. Palmer on retirement status as of August 25, 1975.
It is not disputed that appellant is willing and able to teach. Her performance as a teacher was rated satisfactory in each year of her employment. In the last evaluation, made just before she was retired in 1975, her principal recommended that she be rehired, "subject to review of compulsory retirement under New York State Education Law."
Appellant contends that retirement solely on the basis of her age violates her constitutional and state law rights. Essentially, she claims: that compulsory retirement at age 70 violates the equal protection clause; that it creates an irrebuttable presumption of incompetency based on age; that, as a tenured teacher, she is entitled to a hearing before termination; and that, in the alternative, the New York Education Law should be read to prohibit compulsory retirement or, if not, to require a hearing before termination.
Compulsory retirement systems have come under constitutional attack in several contexts. These equal protection and due process challenges have been rejected by this and other courts. The only exception is Gault v. Garrison, 569 F.2d 993 (7th Cir. 1977). In that case, the Seventh Circuit ruled that a retired teacher is entitled to a trial on her age discrimination claim. Because Gault involves a factual situation very similar to that of the instant case - the major difference is that the retirement age in Gault was 65, not 70 - and because we disagree with the Gault holding, we think it appropriate to focus on this issue once again.
The ruling in Gault is premised on the implications of the Supreme Court's most recent decision in this area. In Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 49 L. Ed. 2d 520, 96 S. Ct. 2562 (1976), the Court upheld a state law requiring the mandatory retirement of uniformed police at age 50. First, Murgia established that the proper standard for equal protection review in a case challenging a compulsory retirement statute is the rational basis test. Id. at 312-14. Applying this standard, the Court found that forced retirement at age 50 did foster the purpose identified by the state; it assured the continued physical preparedness of the state's uniformed police. Id. at 314-16. In Murgia, there had been a trial, and there was evidence in the record to support the conclusion that physical preparedness is rationally related to age.
As in the instant case, but unlike Murgia, Gault involved an appeal from an order dismissing the complaint. The Gault court assumed that the strongest justification for a retirement law for teachers is to remove those who are unfit. Working from that premise, it held that, absent an evidentiary showing, there was no reason to assume that there is any relationship between advancing age and fitness to teach. Gault distinguished Murgia as involving a question of whether physical fitness declines with age, and noted that there was evidence in the record to support the conclusion that it does. It contrasted this with the question whether teaching ability, which involves predominately mental skills, similarly declines with age. Absent an evidentiary showing, the court saw no reason to assume that it does; in fact, it speculated that the knowledge and experience necessary for teaching increases with age.*fn1 Accordingly, it remanded for further proceedings to determine whether compulsory retirement of teachers at age 65 is rationally based. 569 F.2d at 996.
We decline to follow Gault for two reasons. First, while there is a valid distinction between the instant case and Murgia, we cannot distinguish the prior cases that have sustained compulsory retirement statutes for occupations that involve primarily mental skills. In Johnson v. Lefkowitz, 566 F.2d 866 (2d Cir. 1977), we upheld the constitutionality of § 70 of the New York State Retirement and Social Security Law (McKinney's 1971), which requires tenured civil servants to retire at age 70. In Johnson, the plaintiff had been dismissed from his position as senior attorney in the Real Property Bureau of the state's law department. In Rubino v. Ghezzi, 512 F.2d 431 (2d Cir.), cert. denied, 423 U.S. 891, 96 S. Ct. 187, 46 L. Ed. 2d 122 (1975), we upheld the constitutionality of the mandatory retirement of state judges at age 70. And, in Weisbrod v. Lynn, 383 F. Supp. 933 (D.D.C. 1974), aff'd, 420 U.S. 940, 43 L. Ed. 2d 420, 95 S. Ct. 1319 (1975), mandatory retirement of federal civil servants at age 70 was upheld as constitutional, even though the statute undoubtedly requires the retirement of some civil servants who are engaged in occupations that involve primarily mental skills. Cf. Weiss v. Walsh, 324 F. Supp. 75 (S.D.N.Y. 1971), aff'd, 461 F.2d 846 (2d Cir. 1972), cert. denied, 409 U.S. 1129, 35 L. Ed. 2d 262, 93 S. Ct. 939 (1973) (denial of state-endowed chair to college professor over 65 is not unconstitutional age discrimination).
Second, Gault too narrowly conceives the possible rational bases for a compulsory retirement statute. Unrelated to any notion of physical or mental fitness, a state might prescribe mandatory retirement for teachers in order to open up employment opportunities for young teachers - particularly in the last decade when supply has outpaced demand, or to open up more places 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 ...