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requested that she be permitted to teach until April 1, 1971. This request was denied on the ground that the board's maternity leave rules required that a pregnant teacher give notice at least six months prior to the expected date of birth and leave work at least four months prior to delivery. Cohen then requested that she be permitted to teach at least until the end of the first semester on January 21, 1971.27 This request was also denied, and she was forced to leave her employment on December 18, 1970. In addition, the board's maternity leave provisions prohibited reemployment until a woman could submit a physician's certification that she was physically able and until she could give the board "full assurance that care for the child would cause minimal interference with job responsibilities.""77 This, together with the fact that she was not guaranteed re-employment until the first day of the school year following re-eligibility, presented the possibility of nine months of forced leave without pay. She thereupon filed suit under the Civil Rights Act of 1871 in the United States

275 The Chesterfield County rule provided:

MATERNITY PROVISIONS

a. Notice in writing must be given to the School Board at least six (6) months prior to the date of expected birth.

b. Termination of employment of an expectant mother shall become effective at least four (4) months prior to the expected birth of the child. Termination of employment may be extended if the superintendent receives written recommendations from the expectant mother's physician and her principal, and if the superintendent feels that an extension will be in the best interest of the pupils and school involved.

c. Maternity Leave

(1) Maternity leave must be requested in writing at the time of termination of employment.

(2) Maternity leave will be granted only to those persons who have a record of satisfactory performance.

(3) An individual will be declared eligible for re-employment when she submits written notice from her physician that she is physically fit for full-time employment and when she can give full assurance that care of the child will cause minimal interference with job responsibilities.

(4) Re-employment will be guranteed no later than the first day of the school year following the date that the individual was declared eligible for reemployment.

(5) All personnel benefits accrued, including seniority, will be retained during maternity leave unless the person concerned shall have accepted other employment.

(6) The school system will have discharged its responsibility under this policy after offering re-employment for the first vacancy that occurs after the individual has been declared eligible for re-employment.

Cleveland Bd. of Educ. v. La Fleur, 414 U.S. at 637-38 n.5.

27 Id. at 638.

27 See note 275 supra.

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District Court for the Eastern District of Virginia, which upheld her claim. A divided panel of the United States Court of Appeals for the Fourth Circuit affirmed," but then, on rehearing en banc, reversed in a 4-3 decision.280 Cohen appealed to the Supreme Court, and her case was heard together with La Fleur.

The Court held, 7-2, that La Fleur should be affirmed and that Cohen should be reversed and remanded. The majority opinion was delivered by Justice Stewart.282

Citing Roe, Baird, and Griswold, among other authorities, Justice Stewart based his opinion upon the by-then-familiar proposition that "freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment."283 Because "overly restrictive" maternity leave regulations may act to "penalize" the pregnant teacher in her "exercise of these protected freedoms," due process "requires that such rules must not needlessly, arbitrarily, or capriciously impinge upon this vital area of a teacher's constitutional liberty." Justice Stewart thus framed the issue presented as "whether the interests advanced in support of the rules of the [school boards] can justify the particular procedures they have adopted."'285

It should be noted at this point that, in contrast to the opinions in Doe and Roe, the test which the Court set forth does not appear to be the "compelling state interest" test, but is more akin to the "rational relationship" test. This is puzzling, since the threatened liberty is the same as that in the abortion cases.284 However, the opinion should be closely analyzed to determine which test actually was applied, since, as we have noted, the

237

Cohen v. Chesterfield County School Bd., 326 F. Supp. 1159 (E.D. Va. 1971).

" Chesterfield County School Bd. v. Cohen, 5 E.P.D. ¶ 7967 (1972).

22 Cohen v. Chesterfield County School Bd., 474 F.2d 395 (4th Cir. 1973).

251 Cleveland Bd. of Educ. v. La Fleur, 414 U.S. 632 (1974).

282 Justices Brennan, White, Marshall, and Blackmun joined in the opinion of the Court; Justice Douglas concurred in the result, without filing an opinion; Justice Powell filed an opinion concurring in the result; Justice Rehnquist filed a dissenting opinion, in which Chief Justice Burger joined.

283 Cleveland Bd. of Educ. v. La Fleur, 414.S. at 639-40.

284 Id. at 640.

285 Id.

284 The right to privacy is common to both cases. Additionally, each case involved another right which was unarticulated by the Court: the woman's right to life, in the abortion cases (see text accompanying note 219 supra) and the woman's right to employment in La Fleur (see text accompanying notes 301-03 infra.).

287 See text accompanying note 68 supra.

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[Vol. 41: 209 Court in Reed enunciated the more lenient rule, but then applied what may be viewed as a somewhat stricter rule.

The school boards offered two (really three) explanations for their maternity leave rules: (1) continuity of classroom instruction, since a qualified substitute for the teacher would have to be provided via a manageable administrative procedure, 288 and (2) the necessity of keeping physically unfit teachers out of the classroom (a) to "protect the health of the teacher and her unborn child" and (b) to assure "that students have a physically capable instructor in the classroom at all times."290 The Court noted that the Cleveland school board had dropped a third argument, advanced at the district court level, that "a mandatory leave rule was justified in order to insulate school-children from the sight of conspicuously pregnant women." The Court justified comment on this argument "only to illustrate the possible role of outmoded taboos in the adoption of the rules."22 Feminists can applaud the Court's honesty in finally confronting some of the psychological motives behind laws pertaining to women."

293

As to the first justification advanced for the maternity leave rules-continuity of instruction-the Court considered it to be a "significant and legitimate educational goal," but one which ample notice provisions would serve well enough. Termination at the fourth or fifth month of pregnancy would be unnecessary and, in fact, might even be counterproductive, as in the cases before the Court, where the teachers would have been able to continue until the end of the term had the rules permitted. Therefore, the arbitrary four- and five-month cut-off dates had "no rational relationship to the valid state interest of preserving continuity of instruction."'294

23 Cleveland Bd. of Educ. v. La Fleur, 414 U.S. at 640-41.

Id at 641. In Cohen, only the health of the "fetus" was mentioned. See Cohen v. Chesterfield County School Bd., 326 F. Supp. at 1160. If the schools were concerned about the health of the woman and the fetus, it is surprising that pregnant students were apparently permitted to continue attending school, at least in Cleveland. La Fleur v. Cleveland Bd. of Educ., 465 F.2d at 1187. This is not to suggest that pregnant students may constitutionally be forced to leave school. See, e.g., Shull v. Columbus Municipal Separate School Dist., 338 F. Supp. 1376 (N.D. Miss. 1972); Ordway v. Hargraves, 323 F. Supp. 1155 (D. Mass. 1971).

200 Cleveland Bd. of Educ. v. La Fleur, 414 U.S. at 641.

291 Id. at 641 n.9.

202 Id.

See text accompanying notes 70-73 & 205-09 supra. The Court ignored another sexist motive behind the rules, however. See note 305 infra.

294 Cleveland Bd. of Educ. v. La Fleur, 414 U.S. at 643.

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As to the second justification-the necessity of keeping physically unfit teachers out of the classroom-the Court considered it to be a "legitimate" objective as well, but held that the fourand five-month cut-off dates would have to fall nonetheless, for

the provisions amount to a conclusive presumption that every pregnant teacher who reaches the fifth or sixth month of pregnancy is physically incapable of continuing. There is no individualized determination by the teacher's doctor-or the school board's-as to any particular teacher's ability to continue at her job. The rules contain an irrebuttable presumption of physical incompetency, and that presumption applies even when the medical evidence as to an individual woman's physical status might be wholly to the contrary.205

Further, the Court noted that,

[w]hile the medical experts in these cases differed on many points, they unanimously agreed on one-the ability of any particular pregnant woman to continue at work past any fixed time in her pregnancy is very much an individual matter.204

The medical evidence that pregnant women could safely continue working is certainly a sufficient reason for striking down the mandatory leave requirement, but it is surprising that the Court never mentioned the most significant evidence adduced at the trial-that the Cleveland school board had permitted teachers in advanced stages of pregnancy to teach on a "volunteer," i.e., unpaid, basis after the mandatory cut-off point and even through the eighth month of pregnancy.297 The fact that these teachers were not paid could not possibly guarantee that they would be more physically fit than similarly situated paid teachers, who had been presumed to be unfit.298

The school boards had one final argument to offer the administrative convenience of following a single rule rather than

205 Id. at 644. The Court cited Vlandis v. Kline, 412 U.S. 441 (1973), involving a statutory irrebuttable presumption of nonresidency for the purpose of qualifying for reduced tuition rates at a state university, and Stanley v. Illinois, 405 U.S. 645 (1972), involving a statutory in rebuttable presumption that unmarried fathers are unfit parents, as controlling in the cases before it.

Cleveland Bd. of Educ. v. La Fleur, 414 U.S. at 645.

297 See testimony of Kathryn Tucker, a teacher employed in a Cleveland public school on a volunteer basis from the end of her fifth month of pregnancy through her eighth month. Brief for Appellants at A. 81-88, Cleveland Bd. of Educ. v. La Fleur, 414 U.S. 632 (1974), noted in Brief for Respondents at 11, id.

298 See note 297 supra.

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making a determination in each individual case. The Court summarily disposed of that argument, citing dictum in Stanley v. Illinois: "the Constitution recognizes higher values than speed and efficiency." The school boards would have to find "alternative administrative means, which do not so broadly infringe upon basic constitutional liberty, in support of their legitimate goals."300

Such language is enough to make feminists cheer, until they notice an unobtrusive footnote:

This is not to say that the only means for providing appropriate protection for the rights of pregnant teachers is an individualized determination in each case and in every circumstance. We are not dealing in these cases with maternity leave regulations requiring a termination of employment at some firm date during the last few weeks of pregnancy. We therefore have no occasion to decide whether such regulations might be justified by considerations not presented in these records-for example, widespread medical consensus about the "disabling" effect of pregnancy on a teacher's job performance during these latter days, or evidence showing that such firm cutoffs were the only reasonable method of avoiding the possibility of labor beginning while some teacher was in the classroom, or proof that adequate substitutes could not be procured without at least some minimal lead time and certainty as to the dates upon which their employment was to begin.301

What a bombshell! What did the Court mean by "the last few weeks of pregnancy"? Three weeks? Five? Seven? If women were forced to leave their jobs seven weeks before medically necessary, who would compensate them for their loss of earnings-the school

2 Cleveland Bd. of Educ. v. La Fleur, 414 U.S. at 646.

300 Id. at 647.

301 Id. at 647 n.13.

The Court stated that La Fleur did not "seriously challenge either the medical requirements of the Cleveland eligibility to return rule or the policy of limiting eligibility to return to the next semester following birth." Cleveland Bd. of Educ. v. La Fleur, 414 U.S. at 648. The attorneys for La Fleur responded as follows:

Frankly, there was no basis for that statement whatsoever. Throughout the oral argument our position taken was simply with respect to all aspects of the rule that we would have no objection were it applied to all persons having temporary medical disabilities within that context only; we did not dispute any particular aspect of the rule.

Letter from Jane M. Picker to the author, September 30, 1974, on file at the Brooklyn Law Review. See also Brief for Respondents at 47-48, 54-55, Cleveland Bd. of Educ. v. La Fluer, 414 U.S. 632 (1974).

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