CLEVELAND BOARD OF EDUCATION v. LAFLEUR

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Argument of Philip J. Hirschkop

Chief Justice Warren E. Burger: We’ll hear arguments next in 72-1129, Cohen against Chesterfield County School Board.

Mr. Hirschkop, you may proceed when you are ready.

Mr. Philip J. Hirschkop: Mr. Chief Justice and may it please the Court.

The issue in this case is clearly presented as one of sex discrimination, and the issue joined between the two parties as to whether or not it is sex discrimination and the Fourth Circuit very clearly went to that issue also.

We submit to the Court especially in light of the foregoing argument, one that just proceeded that there is no question of sex discrimination in this case, that the only basis for these regulations, in fact are of appearance.

Now, on the course of this case, the Cohen case, we had opportunity to depose the School Board.

Now, we took each deposition separately.

Before the lawyers present in the case could sit down with them and chat about legal rationale where they sort other opinions and could then form opinions as to the basis of the school regulation.

Three members of the Board and the Superintendent believed the rate of absenteeism of a teacher increases in the last four months of pregnancy and the references are on Page 4 of our brief that I am referring to here.

As to the Appendix references where there are different testimonies is found.

They all conceded however that they had no experience or statistics whatever with that.

In fact, since they terminated women at the end of the fifth month, they had no idea what the absentee rate would be in the last three months, the last trimester of pregnancy.

But in point of fact, both doctors were clear it would be lower if anything in the last three months.

The difficult three months of a pregnancy are the first three months.

The Superintendent and three members felt that it would be dangerous for a pregnant woman to walk down school halls and climb steps.

They later or at the same time, they discussed the question fire regulations and indeed a fire marshall was put on the stand with the trial this matter to show that there occasionally were some fires in schools and were fire drills.

There was some perhaps rather ludicrous questioning in retrospect about why -- what do you do about fat men.

They said women who are pregnant can’t fit through narrow places; we say “what do you do about the fat men?”

And then three members in the School Board felt that it was not good for students to see woman whose pregnancy becomes conspicuous to others and indeed we quoted ludicrous language of one of them about children seeing this teacher of 11th grade history and thinking she may have a watermelon in her belly.

Now, that comment perhaps shouldn’t be in the Supreme Court brief other than it was stated in testimony, but it points out what is really the basis of these regulations.

When we say the continuity of teaching argument is the real basis of these things as the appellees would have you believe from their brief, we must submit to this Court it is just not so.

They are legal arguments, thought up in retrospect.

The convincing aspect to that is in Page 26 of our brief, it’s Page 116 of the Appendix where Superintendent Kelly, in questioning by the Court, by Judge Marage (ph), agreed that he had thought of that reason in retrospect at the time of litigation, that buttress litigation.

Indeed it’s obvious that wouldn’t have been the reason.

Justice Potter Stewart: It’s very typical is it not of Equal Protection Clause litigation?

Usually when you are dealing with the state statute, for example, you have no legislative history and the -- then when it says the validity of the statute is attacked and is violating the Equal Protection Clause, then the effort is made post talk, if you will, to for mine the rational justifications for the law.

That’s a very typical, that’s what you find all typically and Equal Protection Clause litigation, is it not?

Mr. Philip J. Hirschkop: It is not unusual Your Honor where it differs here.

Justice Potter Stewart: And indeed the law generally is that if any rational support can be found for the law, then it doesn’t violate the Equal Protection Clause.

That’s a so-called conventional test.

Mr. Philip J. Hirschkop: Only if Your Honor -- only if the Court applies the rational basis test.

Justice Potter Stewart: Right.

Mr. Philip J. Hirschkop: The compelling interest test, as applied to this case, we submit it would never succeed, although we’d submit it won’t succeed on the rational basis test Your Honor.

Justice Stewart, you have to look I think at this other matter they raised and that’s the appearance, because that’s the real background of these things.

There was a question raised in previous case where at least discussion of the widespread nature of these type of regulations, and indeed they are very widespread, and maybe the real importance to this case outside of just the question of law of the test to be applied under the Equal Protection Clause is the thousands and thousands of teachers that is subject to just this type of arbitrary regulation.

Justice Potter Stewart: Well, those are found to be very widespread, does that evidence -- they are arbitrary or capricious?

Wouldn’t that, if it’s evidence of anything being be that there might be some rationality behind it?

Mr. Philip J. Hirschkop: No sir I think not.

Justice Potter Stewart: If you found, for example, one exceptional school board in the whole country that had this kind of regulation, you’d have a pretty good case going in I should suppose that it’s arbitrary and capricious, but if you half of the school boards in the country with these sorts of regulations, I suppose the presumption going in would be that there must be some sort of rationality behind it?

Mr. Philip J. Hirschkop: I would think not Your Honor.

It would be a logical inference but I would say not a legal one.

For instance in, the mixed marriage cases, there were 26 states with mix marriage laws, in the segregation cases, there were many states for segregation laws, but that didn’t lend validity to those laws.

With regard to these regulations, there is a trend away from it.

If there is any reference to be drawn is the overwhelming weight of authority against these laws. Just today, Civil Service Commission’s Bureau of Policies and Standards has recommended against having such standards at all in the hiring laws of the employees of the government.

And as we cite Labor Department and Defense Department and other standards where these are a trend away in Virginia, every county had them at one time.

The Richmond School Board does not now have such a policy, although in Rico and the surrounding counties too.

I’d submit to the Court that we can’t, from the widespread nature of the laws, draw any inference at this time, the 49% figure I am sure, but I should think will be higher and all kinder.

It does apply to major school boards and I have experience in this case and a companion case now coming up through the Fourth Circuit, a class action in Virginia indicates that the fact that all the counties in Virginia have such a regulation.

There was a question raised as to the five months versus another time and it’s conceded in this case that there is nothing magical about five months.

It’s just they have to draw a specific time so they locked on five months, but it could be four or sticks to seven in a testimony or so in our case.

Justice Potter Stewart: And when is the noticed required in Chesterfield?

Mr. Philip J. Hirschkop: Well, they require as soon as you know, but you can’t -- you must leave after the fifth months.

Justice Potter Stewart: Yes but when must you give notice?

Mr. Philip J. Hirschkop: I don’t have the precise date, I’ll get that Your Honor.

As far as --

Justice Potter Stewart: Now you would think that would have a goody old ado, that would have a goody old bearing on the continuity argument, would it not?

Mr. Philip J. Hirschkop: It would Your Honor and we don’t resist a notice.

This was raised in the prior case.

We have no question that School Board may ask people who have any kind of disability which they know in advance.

We require them living school at one point to another to notify the employer of a pending –-

Justice Potter Stewart: And not just the day before?

Mr. Philip J. Hirschkop: Oh yes sir, yes sir.

We have no problem with that.

That’s not an issue in this case.

There is a separate issue which again points out the arbitrariness of it on the return.

The regulations in this jurisdiction, in this school board, say that they will return -- following their pregnancy, they can return at the beginning of the next year basically.

Now, in depositions, it was pointed out that they return to a position open at the point at the time they returned, if there is a position open.

Plus the regulation clearly shows they are not guaranteed return to the same job, the same teaching position for which they originally contracted and they must file a certificate or give the school assurance that the trial will be taken cared off okay and of course this starts smacking the Martin Marietta case, because men don’t have to give such assurances as who is to care for an already born baby, which again, I think points out what they are really concerned about is the old fashioned look of women and child raring and child birth, which meant to the Court that the record is abundant here not just, because of watermelons and things like that.

Your Honor, on the notice dated at six months prior to the expected birth, they should get nervous.

Justice Potter Stewart: And so that means two months notice, is that it?

Mr. Philip J. Hirschkop: Yes sir.

Justice Potter Stewart: Two months notice?

Mr. Philip J. Hirschkop: Yes sir, at the end of the third --

Justice Potter Stewart: Two months prior to leaving.

Mr. Philip J. Hirschkop: Yes sir, and we have no problem with when the notice is, they may say notice six months and notice eight months, that’s not the problem we have in this case.

The problem essential is just no reason to make women leave work when they are perfectly capable of working other than these old fashion notions of child birth.

Justice Potter Stewart: Were there individual employment contracts in this case?

Mr. Philip J. Hirschkop: Yes sir.

Justice Potter Stewart: Do the contracts have anything to say about this subject.

Mr. Philip J. Hirschkop: The contracts have a clause, I don’t know, I tried to find, I don’t have the exact contract here, I am sorry Your Honor.

But the contracts have a clause referring to the sick leave policies.

Now, perhaps to the case we would have stipulated in the court below that even if there was a specific section in the contract outlining this that that wouldn’t be bar, there have been other teacher cases with these contract provisions where they can’t contract the way your constitution rights.

Justice Potter Stewart: Well, you might have stipulated it but you didn’t and it might have something to do with the merits of this case whether or not this teacher agreed in advance that this would be a term and condition of her contract, do you know or don’t you?

Mr. Philip J. Hirschkop: No.

Your Honor there is a section on the contract on the sick leave policies and a section contract on the school board policies that they will adhere to the school board policies.

I don’t believe there was section in the contracts specifically on maternity leave policies.

Now, they do have in the school board policies in the teacher’s handbook.

The maternity leave policies spelled out specifically as we have it here as it appears at Page I think 20 and 21 of our Appendix.

We submit to the Court in this case, there was medical testimony that the woman could teach, in this case her own principal asked that she’d be allowed to finish out the semester.

In this case, she would asked to continue first -- until April 1st which is shortly before the expected date of birth and later went before the School Board and asked at least could she stay until mid January, January 20th I believe when the semester would end so she could finish the semester with her students.

They forced her to leave on December the 18th.

Now apparently just before the Christmas vacation although there’s nothing in the record indicate they did it for that reason alone.

The facts still remains that there is nothing in this record to show the continuity argument.

There is nothing in the record to but there still other arguments advised the time of deposition.

There is nothing to show the absentee argument and give any truth or validity to that.

There is nothing to show the injury argument.

Indeed, if you start comparing this to other matters, for instances a man with his leg in a cast as a result of an skiing accident or what have you.

He certainly wouldn’t be any great benefit in the middle of a fire drill running down the hall along crutches, but there is no prescription against him.

With regard to the predictability of disabilities which was raised earlier.

Again, this is discrimination going after a select class, which I think just lands to our position that it’s appearance they are really concerned about.

Certainly a woman, once pregnant is able t predict, through medical testimony or medical doctors can predict the exact date of birth.

If so, can most people for cosmetic surgery and many other things.

Now, there is no regulation on cosmetic surgery.

A man or a woman could make a choice that we want certain cosmetic surgery.

And then pick a date and go to the school board, take their leave of absence, be out as long as they want in essence.

Chief Justice Warren E. Burger: Listen to the different matter when you are dealing with situation like this where as you suggest the terminal period is predictable and you have a predictable situation all the way through in terms of medical testimony.

Now, when you talk about a man with his ankle or his leg in a cast, that’s one isolated situation, but with a pregnancy, you have a whole series of consequences which are within the range of possibilities, do you not?

Mr. Philip J. Hirschkop: Yes sir.

Chief Justice Warren E. Burger: In terms of potential disability and limitation.

Mr. Philip J. Hirschkop: Yes Your Honor.

Mr. Chief Justice, the medical evidence in this case says basically there is no disability during the teaching period.

Now, the one thing that there is there is certain anxiety, but there is nothing before this Court.

And we submit there could be nothing, which shows that despite the anxiety of the condition of pregnancy, it materially interferes with the teacher’s ability to teach.

Quite the contrary, we have amicus in this case of the National Education Association, as an association of over a million members representing teachers who are not here to blindly say they got to work, no matter what happens.

There is in conscience I believe said that education is not hampered by teachers being in school who are pregnant and I think we could recognize the overwhelming number of members that they have are women teachers.

Chief Justice Warren E. Burger: Of course we don’t resolve the constitutional issue by taking a club beside or pool, do we?

Mr. Philip J. Hirschkop: No sir, and they amicus to the other side, but Mr. Chief Justice, we have to I think in this case that the Court has in this case decide is what this representing to us that this is really a continuity argument and all true, does it hold any water?

We submit it does not.

Even if you put aside the depositions and deal with it as it’s before the Court right now that -- let’s look at this point in the constitutional framework, if there is any validity to that statute.

Let’s see if we can find a reasonable basis.

I submit you cannot.

As in the case before us, our teacher was terminated when it disrupted continuity.

In fact, while they have an element in this regulation that a teacher can be continued past the fifth months, if the Superintendent determines it’s for the good of the school system, we also have the testimony that he had the case that he just doesn’t continue anybody pass the fifth months.

And this case here, in a day when there is a wide market, lots of teachers readily available, where they terminate a woman in December who could have finished the term and go on right through.

Chief Justice Warren E. Burger: Well, is there a state -- the state action in this area to be influenced by whether their school teachers are in a buyers market or in sellers market?

Mr. Philip J. Hirschkop: We’d submit that should not be Your Honor but their argument is buttress by the buyers and sellers --

Chief Justice Warren E. Burger: Five years ago or more or less teachers were almost impossible to come by, isn’t meant correct?

Mr. Philip J. Hirschkop: Yes sir, in certain fields especially --

Chief Justice Warren E. Burger: And now there maybe is somewhat of a surplus?

Mr. Philip J. Hirschkop: In fact in the all fields, but Your Honor, it’s their argument that I’m trying to get to that they believe you have to have the continuity because you might not have a teacher available later on.

And if you put aside, where the teacher is available or not, the whole continuity argument would fall on its face if there are plenty of teachers available.

Either way, there’s just no question of this being a discriminatory statute, if not only looked at as applying to woman teachers compared to other teachers, but is applying to the teaching profession as compared to the other profession.

I think an incident that happened in the course of this litigation is very fruitful here.

When we showed up to argue this case in the Fourth Circuit, Judge Young’s law clerk who was the District Judge sitting by designation was in her six month of pregnancy and anticipated working through eight month of pregnancy.

Now, what is so important about teachers that’s not so important about law clerks or if such a time come as we -- clearly will come when a woman or more that one woman rise to this bench, will this Court whoever determines such regulation say you can’t sit beyond your fifth month of pregnancy.

Or will you say that Judges on Trial Courts or does anywhere acquire that of court clerks here, we believe they do not, nor thus the government require it.

Just because teachers in a unique situation historically of the year to your contract, there is no reason, they should submit, to that type of discrimination which is practiced nowhere else, whether it be in the court system the civil service system at this time, or it’s just in an anachronism that must be done away with it.

Thank you.

Chief Justice Warren E. Burger: Mr Hixon.

Argument of Samuel W. Hixon Iii

Mr. Samuel W. Hixon Iii: Mr. Chief Justice, may it please the Court.

My name is Sam Hixon and I am here to represent the Chesterfield County School Board.

Perhaps I’m taking the reverse approach to this case, but I wish to skip over temporarily the question of what type of test should be applied in this case and move directly to the question of what is the basis, the reasonable and rational basis for the Chesterfield maternity leave provision.

The School Board recognizes in these cases that there is an educational advantage to having a teacher full time throughout the year who can work with the individual student on an individual basis.

And it’s for that reason, that the school board requires that each individual teacher sign a written contract at the beginning of her employment.

Guarantying that she will be employed by one year period of time, this contract is a part of the record in this case.

By having one teacher without any interruption during the whole course of one year, the objective of continuity in education is accomplished.

With this in mind and for many reasons, the School Board, recognizes that it is making the transition from one teacher to the next to smooth and is nondisruptive as possible by the application of the Chesterfield maternity provision.

Justice Potter Stewart: Mr. Hixon, I could fully understand your continuity argument, if the Chesterfield County School Board had a rule that no teacher who anticipated being pregnant during that school year would be hired.

Or if you required immediate notice as soon as the teacher knew she was pregnant.

But here, it doesn’t seem that to me -- at least you tell me why I’m mistaking this that it doesn’t make any difference so far as your continuity arguments goes whether the teacher leaves after four months pregnant or after eight months pregnant or after eight months and three weeks pregnant so far as continuity goes, because the pregnancy is going to be just by the ordinary pattern of events.

Could be anytime during the school year and the four months could be anytime during the school year when you take a large sample of pregnant women teachers.

Mr. Samuel W. Hixon Iii: Yes Your Honor.

To answer that question, let me say first to your initial question, I believe that the school board could have a regulation which prohibited pregnant women from beginning the contract term because they know at that very point --

Justice Potter Stewart: Right that --

Mr. Samuel W. Hixon Iii: -- that there will be an interruption during the year.

Justice Potter Stewart: Now, whether or not it could, at least your continuity argument would have great force in support of that sort of a regulation --

Mr. Samuel W. Hixon Iii: That’s correct.

Justice Potter Stewart: -- which you were not faced with here.

Mr. Samuel W. Hixon Iii: But this regulation has an advantage Your Honor and that it requires only one affirmative act on the part of the teacher.

She is required six months before the expected date of delivery of her child, now which is three months after she becomes pregnant.

She is required to come in at that point and give the school board notice and with that one affirmative act on her part, the school board automatically at that point triggers an administrative procedure for preparing for her replacement.

They can go out at this point, they can interview, they can talk to teachers and they can offer them a position at a fix point in time that is the termination of the first month of an employment.

And this is very important to the school board, because I don’t agree with what my colleague has said that the only purpose is to provide a replacement.

The purposes to provide a replacement who is well qualified, who is well trained and can do the job adequately, and with this two months leave time which is effectively what we have, the school board can go out and hire and look for the most qualified teacher to come in at the end of that fifth month period of time.

Now, of course the Chesterfield provision is much more flexible than others.

It provides that the School Board can extend, pass the first month of employment, the teacher, if the teacher so request and the teacher has permission of her doctor and if the school board determines that it’s in the best interest of the students, because this is essentially what we are dealing with here.

Now, I have no doubt that the school board, if the final date of the five months period would fall along, let’s say May 1st and the end of the school year was May the 15th, I have no doubt that the school board would continue her until May the 15th, because it would accomplish the objective of continuity but here we don’t have that situation.

We had here a situation in which Mrs. Cohen wish to teach until her 9th month of pregnancy which was, she initially requested that she teach up until April 1st.

She later changed her mind and decided to terminate her employment on January 19th.

But here we have a question where the School Board made a decision on its own whether or not it would be better from the standpoint of the students to continue the employment of Mrs. Cohen until the date that she so specified or whether it would be better for the student body and for the students to terminate her employment at the Christmas recess, which I submit seem to them to be a reasonable date for termination of employment.

The record in this case clearly justifies and supports the rationality of that argument.

Upon Mrs. Cohen’s termination, there was a replacement that it was available, who the School Board was able to go out and hire to offer her a job on a fix date, that is, the day beginning after the Christmas vacation.

To offer her that position and have her come in and remain with the students for the rest of the year.

This is a continuity which was accomplished by the administrative procedure which is set up her.

The replacement was a duly qualified teacher with a master’s degree.

Now, this is not an argument which I have contrived for purposes of arguing into this Court up to Fourth Circuit.

It’s an argument that is clear in the record in this case.

Dr. Kelly who is a divisional superintendent testified in the Appendix at Page 109 and also at the Page 113 why this regulation existed and why this rule existed, and it’s entirely in line with the continuity argument that I have presented to this Court.

But even if it weren’t in the question of whether or not a rule or regulation is to fall or stand under the attacks on the Equal Protection Clause doesn’t depend on the rationality which is directed towards that rule or regulation by a particular member of the school board.

It can, as this Court has said on many occasions, come from the argument which are made by a counsel or can come from the Court itself.

And this Court and this Court has said that if there is any reason which we can concede to support this regulation then it should be upheld under the Equal Protection Clause.

Justice Byron R. White: Under the School Board’s rule, after pregnancy, does the teacher have any preference for rehiring over any other applicant for any existing vacancy?

Mr. Samuel W. Hixon Iii: Yes she does, she will be guaranteed reemployment not later than beginning of the next year from the period of time that she is placed on maternity leave.

Now --

Justice Byron R. White: Or you mean when -- at the beginning of the next school year after she’s declared eligible for reemployment.

Mr. Samuel W. Hixon Iii: Not later than that date.

If there is a position available that they can move or into the regulation provided that she can be offered reemployment at anytime.

So, and -- the regulation also provides that --

Justice Byron R. White: But she doesn’t but she’s only guaranteed reemployment as of the date of beginning of the next term?

Mr. Samuel W. Hixon Iii: Yes sir, not later than that date.

Justice Byron R. White: Or year, school year?

Mr. Samuel W. Hixon Iii: It’s the beginning of the next school year Your Honor.

The teacher does not lose her right to seniority and she does not lose her right to personal benefits.

She does not lose her tenure.

Justice Byron R. White: But she doesn’t approve that seniority once she is on leave I take it?

Mr. Samuel W. Hixon Iii: No sir, she doesn’t, she would only accrue seniority for the period of time when she’s actually completed.

The only thing that the school teacher loses here is a period of employment where she loses wages.

This is the only complaint that the school teacher can have in this case.

Now, this case does not -- or in this the school teacher wishes really to accomplish the best of two worlds.

There’s not an attack here by the school teachers on maternity provision itself.

The record in this case shows that the maternity provision was adapted in part by school teachers who participated, women school teachers who participated in the rules adaption.

So, we are not really here talking about the merits or demerits of maternity leave because it’s conceded that that petitioner in this case wants the merits of maternity leave.

Her only objection is to, one, clearly defined the area and that is I wish to choose the manner in which the maternity provision is implemented as opposed to having the school board make this choice.

And that’s really the only issue that’s involved in this case and whether or not that precise issue is guaranteed by the Constitution.

In addition to this continuity argument that I have presented here, we don’t wish to not rely upon the medical reasons which justify the regulation.

The record in this case and also the clause complete in the fact that they are all certain conditions that occur only in a pregnant woman and they are all -- there are certain conditions that are disorders a pregnancy that can occur only in the last trimester which is perhaps one reason why the fifth month date was picked out.

For example, toxemia, anemia and hemorrhagic conditions related to the placenta.

These are conditions that occur only in a pregnant woman in these latter stages of her pregnancy.

In addition, there are obvious conditions that relate only to a pregnant woman.

For example, she has lack of balance caused by the size of the fetus in the latter months of pregnancy.

She is more subject to falling, her center of gravity changes and this record shows that there is the possibility that a pregnant woman be subject to pushing and shelving in the school and this record also shows that a pregnant woman will have to visit her obstetrician 13 times during her pregnancy with the more frequent visits being in the last several months of her pregnancy.

Justice Lewis F. Powell: Mr. Hixon.

Mr. Samuel W. Hixon Iii: Yes Your Honor.

Justice Lewis F. Powell: May I ask you this question?

I think the record shows there are about 1,400 teachers in the Chesterfield system?

Mr. Samuel W. Hixon Iii: That is correct.

Justice Lewis F. Powell: Of whom 80% approximately are women.

Does the record show, I just don’t recall, what percentage of that 80% are of child bearing age.

Mr. Samuel W. Hixon Iii: No, the record does not show that Your Honor.

The record only touches on that indirectly.

It will reflect that at the time Mrs. Cohen applied to the School Board in the month of December that there were three other women who are applying for an extension of the maternity provision in the same month.

That’s the only in which the record in this case reflects on the question that you’ve asked.

Justice Lewis F. Powell: Does the record show for a full school year, for example, how many -- how many teachers were on maternity leave?

Mr. Samuel W. Hixon Iii: No sir, the record does not show.

There was no statistical data produced in the records of this case to show or to support the contention that there were an increase in absences of teachers during the last trimester of their pregnancy.

That evidence just does not exist except for the fact that we do know that pregnancy in and of it self will cause the teacher to increase her visits to her obstetrician, which could very well lead to her absence from her teaching choice particularly in the last trimester that’s involved here.

Justice Thurgood Marshall: How many times does a person having test for allergies visit a physician?

Mr. Samuel W. Hixon Iii: I am sorry sir I didn’t understand.

Justice Thurgood Marshall: How many times does a person having tests for allergies visit his or her physician?

Mr. Samuel W. Hixon Iii: Well sir, of course the record in this case won’t reflect that.

Look at allergies as entirely different situation, because pregnancy --

Justice Thurgood Marshall: How about going to the doctor, you have mentioned that 3 times.

Mr. Samuel W. Hixon Iii: Yes sir, but the difference --

Justice Thurgood Marshall: You don’t have to go a doctor during the school period, do you?

Is some peculiar about Chesterfield County that the only rule doctor service are while school is in session?

Mr. Samuel W. Hixon Iii: Well sir, the record shows clearly in this case that doctor who testified here that his normal hours that he would accept patients would be between hours of 9 and 4 O’clock in the afternoon.

Justice Thurgood Marshall: Are there any doctors in Chesterfield County that have night hours.

Mr. Samuel W. Hixon Iii: I’d have no idea to answer to that Your Honor.

I do know that the doctor who was deposed in this case said he didn’t work at night and he also didn’t work on the weekends.

Justice Thurgood Marshall: I know also know some doctors who don’t work for two days a week too, but I’m just thinking.

I just don’t see why you put so much emphasis on the fact that the person has to go to a doctor --

Mr. Samuel W. Hixon Iii: Well sir, I put --

Justice Thurgood Marshall: -- regularly.

Mr. Samuel W. Hixon Iii: I put that emphasis only because it points out clearly that there is a likelihood during the last three months that a woman will be absent because of her --

Justice Thurgood Marshall: Are the last three months before us?

Mr. Samuel W. Hixon Iii: Yes sir.

Justice Thurgood Marshall: I thought it was more than three months.

Mr. Samuel W. Hixon Iii: Well, I’m talking -- it’s in the last four months you are correct, but I use generally because the doctor seems to break it up into trimester, the first, second and third and their testimony relates only to the last trimester.

But I think that there is nothing magic about the fifth month, it could be the fourth month or the fifth month or the sixth month.

Justice Thurgood Marshall: It could be.

Mr. Samuel W. Hixon Iii: It could be, but here we’re dealing with a question of whether or not one is grateful --

Justice Thurgood Marshall: And it could be that a man could be just as unstable on his feet as a pregnant woman?

Mr. Samuel W. Hixon Iii: That could be.

Justice Thurgood Marshall: And it could be that a man is just as fat as a pregnant woman.

Mr. Samuel W. Hixon Iii: Yes Your Honor.

Justice Thurgood Marshall: And it could be that a man can’t stand being pushed around in the hall.

Mr. Samuel W. Hixon Iii: But let me point out here, we are dealing here with the problem that exist in the Chesterfield County School Board.

If we find out that there is another problem in terms of conditions that are peculiar only to man or peculiar only to all -- are peculiar to all people, I think the school board could easily regulate that condition.

But here, they are dealing with the condition that know exist and they know creates a problem for them and does the Constitution require that they regulate every potential condition causing a disruption in the school board or is the Constitution or does it only require that there would be a rational basis or reasonable basis for the regulation that we’ve got here.

That’s the issue.

Justice Thurgood Marshall: I thought we were talking about the rational basis?

I thought this was I was talking about?

Mr. Samuel W. Hixon Iii: Yes sir, and that’s what I have tried to --

Justice Thurgood Marshall: Is it rational that if 80% of pregnant women do such and such a thing, that the other 20% should be punished?

Mr. Samuel W. Hixon Iii: Well, I don’t see the --

Justice Thurgood Marshall: Sir, is that right?

Mr. Samuel W. Hixon Iii: I’m sorry but I don’t understand the question.

Justice Thurgood Marshall: You say that normally pregnant women do this and this. Does this record show that there are some pregnant women who do not?

Mr. Samuel W. Hixon Iii: Well, I think the school board can very clearly regulate and direct its regulations to a condition of potential import in the condition of potential disruption.

The school board need not wait until an injury occurs to a pregnant mother in a school system during the last several months of pregnancy in order for them to justify this rule as being rational.

They can regulate as to potential disruptions that may occur.

I don’t say that condition -- a disruption will occur in every pregnant school teacher.

Justice Thurgood Marshall: Also the record shows that 80% of the male teachers in Chesterfield County are “unstable on their feet.”

Could you adopt the rule that says, would not hire any male teachers?

Would that be rational?

Mr. Samuel W. Hixon Iii: I would say under those circumstances, if you could relate the condition of a man’s instability with his ability to teach which is a question in and of itself, if you could relate that matter --

Justice Thurgood Marshall: Well, is it?

Mr. Samuel W. Hixon Iii: I believe that a regulation directed towards that condition and to the facts that you have given me would be a rational and reasonable regulation.

Justice Thurgood Marshall: All men should be denied employment.

All men?

Mr. Samuel W. Hixon Iii: Well, of course here again --

Justice Thurgood Marshall: I have got 80% and a 100%, you said because the 80% are unstable, then you could adopt the resolution that no men could be hired.

Mr. Samuel W. Hixon Iii: Yes, well --

Justice Thurgood Marshall: Because 80% are unstable.

Mr. Samuel W. Hixon Iii: Well, I would say that if you could show that the instability that you are here -- that you are talking about here would have a direct effect on the ability of teachers, particularly men teachers in the school system, you could have a regulation directed towards that but we don’t have that here Your Honor.

Justice Thurgood Marshall: I know we don’t.

Mr. Samuel W. Hixon Iii: We have got a condition here where a 100% of the people affected by the rule are in fact pregnant and we do know one thing, that they are going to --

Justice Thurgood Marshall: But are the 100% unable to teach?

Mr. Samuel W. Hixon Iii: A 100% are not unable to teach.

Justice Thurgood Marshall: Well, that’s my point.

Mr. Samuel W. Hixon Iii: That’s correct.

Justice Thurgood Marshall: And you don’t see any problem with that?

Mr. Samuel W. Hixon Iii: No sir, because I think that the rule here can be clearly justified on the basis that it accomplishes continuity in the educational process by having an orderly procedure for replacement of teachers who become pregnant.

Now, there is only one person, now there are only one class of people that are affected by this rule, and that is pregnant women who are at least five months pregnant and who wish to choose from the themselves what date they will terminate their employment rather than having the school board terminate their employment, and that is the only class of person that is affected by this rule.

Justice Byron R. White: Yes, but why do you want to -- why do you want to plan for continuity at a certain predict -- why don’t you wait until two weeks before pregnancy?

Mr. Samuel W. Hixon Iii: Well sir, I think that --

Justice Byron R. White: I mean you could point out -- you could have continuity whenever, whatever the definite cut off date was?

Mr. Samuel W. Hixon Iii: There is no question about that.

Justice Byron R. White: So why do you pick five months or four months?

Mr. Samuel W. Hixon Iii: Well, there is one advantage to picking five months and that the elasticity provision, the additional four months.

It gives you some time to carry over to teacher.

If you believe that it’s in the best interest of the school board that she’d be allowed to continue teaching to appear at the time, the example that I gave May 1st, If you wanted to continue her employment for another month you could do so, but I suppose that the one reason that five months period of time was selected was because most women would prefer to stop teaching after that fifth month.

And I point out again that this maternity provision provides a benefit to women in the sense that they can breach their contract which I have entered into and they can breach that contract without any re-precaution.

So, we’re dealing here with the --

Justice Byron R. White: But you’re now -- you’re dealing with a teacher who doesn’t look at it that way.

Mr. Samuel W. Hixon Iii: Yes sir, that’s correct.

But if it’s going to be a balance drawn between the interest of the students and the interest of the children in having quality education by preventing disruption and there is going to be a disadvantage mainly --

Justice Byron R. White: Well, there wouldn’t be any disruption if you planned to have a substitute teacher come in and take over a month before.

Mr. Samuel W. Hixon Iii: Well, that’s exactly what the school board is trying to avoid, a substitute teacher.

Justice Byron R. White: Well, alright --

Mr. Samuel W. Hixon Iii: They are trying to have a replacement there who is qualified and who can remain with the school children for the rest of the year, because having one teacher throughout the year is admittedly a valid educational objective.

I mean the district judge in this case admitted, he said I will find or I will recognize in this case that it’s good for education to have one teacher there throughout the year.

That’s why we got the one year contract.

Justice Byron R. White: Well, this doesn’t guarantee that.

Mr. Samuel W. Hixon Iii: It doesn’t guarantee that, but it goes along way towards making that transition.

Justice Byron R. White: Well, maybe it guarantees it for five month rather than for four.

Mr. Samuel W. Hixon Iii: Well, what really is the objective here is to prevent --

Justice Byron R. White: And the other way it would again -- might guarantee it for eight months.

Mr. Samuel W. Hixon Iii: What is really the objective is to deal away with the disruption which is caused by teacher leaving without having given notice and the disruption caused by not having a replacement available who can take over them at the school, at the classroom.

That’s the objective of the regulation.

Justice Lewis F. Powell: Mr. Hixon, does the record show whether you need any specified lead time in locating exactly the teacher you need with the requisite qualifications for the particular class to serve as a replacement?

Mr. Samuel W. Hixon Iii: Nothing except the facts in this particular case Your Honor.

In the Appendix again at Page 114, it shows that Dr. Kelly testified, if he was able with his lead time and mind to go out and solicit and to hire a replacement teacher who he hoped could be at least as qualified as Mrs. Cohen and who could take in and -- come in and replace her.

And other than that example, as it’s applied to Mrs. Cohen, there are no statistics, but I believe that the facts, say, I found in Mrs. Cohen’s particular case are the best justification for this regulation, because the school board was able to go out with its lead time and with its planning device and with its planning tool and hire a qualified replacement who is available to come in right after the Christmas recess.

Chief Justice Warren E. Burger: Mr. Hixon, if a teacher who wants to get married in March and she come in with the superintendent and say, I want to a leave of absence, I know I have a contract, but I want a leave of absence, I’m going to get married and I’ll be back in September.

Mr. Samuel W. Hixon Iii: No sir, I believe the penalties for the breach of employment contract in the sense that she agrees at the outset of her employment that she is going to teach for one year.

And as I have said before, that’s the objective to have a teacher there for the entire year, and I would think that under those circumstances the school board would be justified in not offering her reemployment because she has breached or contract voluntarily.

Chief Justice Warren E. Burger: Do you think such a teacher might have an -- I realize this is outside of our case, but would she have the Fourteenth Amendment equal protection claim that pregnant teachers got a better break, get more favorable treatment than young teachers who want to get married.

Mr. Samuel W. Hixon Iii: Well, I see what you’re driving at Your Honor but I wouldn’t take that position, because I believe that pregnancy is sui generis, it’s a condition that’s peculiar only to women and it’s a condition which I believe the school board is justified in treating differently than any other condition.

And for that reason, I don’t think that a person that you’ve describe would have that claim.

Now, the petitioners in this case asserted that this is a sex classification case.

And of course in our brief, we have taken the position and strongly represent to this Court that this is not in fact a classification that’s based on sex, what perhaps is triggering the strict scrutiny test.

We don’t have here a classification which treats men and women different solely because of their sex who are similarly situated.

We have a condition here that, or our regulations that is directed towards a particular and easily definable area that is pregnant women.

It’s not a classification based on sex to treat men differently and say their employment in the United State Army where they’re maybe required to shave off their beard, this is not traditionally known as a classification that’s based on sex, but triggering some suspect area in which the Court will look with strict scrutiny on the classification that’s involved.

We have here a peculiar condition that should be and we represent to this Court should be handled under to the traditional rational basis test.

And for the reasons that we have set forth particularly the continuity and the medical conditions that exist and wanting, we would pray that the opinion of the Fourth Circuit be sustained and be upheld.

Chief Justice Warren E. Burger: Thank you Mr. Hixon.

Do you have anything further Mr. Hirschkop?

Rebuttal of Philip J. Hirschkop

Mr. Philip J. Hirschkop: Yes sir.

The Court has asked several questions about the leave policies there at Page 20 and 21 of our Appendix.

I point out that reemployment is not automatic but only comes after a declaration of eligibility, which includes a certificate from the teacher or assurance from the teacher that she is going to care for her child or can care for a child so that doesn’t materially impair her ability to function.

As far as this leeway that teachers have, we submit it’s not so after the fifth month.

At Page 117 of the Appendix, we have the testimony of the superintendent that no teachers on board after the fifth month, it’s their very experience which gives the light to that belief that the mere fact that’s there is that its use.

Now, we disagree basically with the other side on the -- what is the issue of the case?

No question about that.

All of this teacher wants, all the women want who want this thing to set aside is to be treated equally with other people.

And they’re not treated equally, because they single out this one sex related disability in terms of fact that when a pregnancy actually occurs the woman has to be gone.

The rest is just imagined.

For instance Mr. Hixon’s argument where she’s going to go to the doctor 13 times, as someone recognized here in the Court, you can go to a doctor at other times, even though the doctor testified he does not have Saturday hours.

He is only up nothing to 4:30, Mrs. Cohen testified that’s when she tried to get there and we put her record before the Court in the District Court, she had missed two days both related to colds that she had in the five months, which is part of those 13 days in compass I believe, not missed anytime.

But even if she had, so what?

People miss time for all sorts of things.

Could they pass a rule against a generic or a race related disease?

For instance, could they have a rule of people with sickle cell anemia with a tendency of the sickle cell anemia could no longer teach in the school system when we know that that’s basically a race related disease, and yet give people with cancer or other diseases preferential treatment.

They could not, I submit to the Court, and get away with it.

We have a law in Virginia which is cited at Page -- Appendix 5, on a dismissal law which is statewide, and where there’s a disability as shown by competent medical evidence, a person can be dismissed.

Now, the state treats all disabilities equally and our position in this case is that women should be treated equally.

They have no question singled out one class of persons, and I think to argue whether it’s sex related is foolishness.

It is clearly sex related.

Justice Potter Stewart: Mr. Hirschkop is your -- It’s your primary submission, as I understand it, that the compulsory termination after the fifth month of pregnancy is what violates the Equal Protection Clause, is that right?

It’s not the notice requirement, is it?

Mr. Philip J. Hirschkop: Oh, no sir, no sir, for the -- the Court has raised this several times, I think we should be very clear, we do not object to the notice requirement and in fact do not object to a set date requirement, they can’t fix it by law this way.

In other words, they can have a requirement that if a person is going to suffer some disability, which will force them to leave teaching during the course of the year, that person must, as soon as they know about it or within some specified date prior to disability departure time, notify the employer, the school board in this case, and in fact even fix a departure date.

Now, that will take care of what they say, we want to plan ahead to replace the person.

The basic problem -- there is no problem with that.

What the problem is they single out one class of people.

They say “you must give us a departure date and no one else must”, and that is discrimination.

Justice Potter Stewart: You said that is also, not just the compulsory departure date.

And so then, I guess you didn’t answer -- you either didn’t hear my question or didn’t answer it clearly.

Mr. Philip J. Hirschkop: No sir, we have no objection.

Justice Potter Stewart: You say the notice requirement confined to pregnancy, I thought you said you don’t think it’s unconstitutional.

Mr. Philip J. Hirschkop: We think it is unconstitutional, if they confine it to pregnancy.

Justice Potter Stewart: Then you were -- then I mistakenly understood you to say that your objection is the compulsory termination.

Mr. Philip J. Hirschkop: Well, that we object to that where it’s confined to pregnancy also.

If they have it for all people with disabilities, as the state law has it, where that disability is job related and would meet the due process requirements, and treated all people the same, men and women, female related disabilities and male related disabilities, it would not file with equal protection.

Justice Potter Stewart: So it’s not only the compulsory separation after the fifth month that you submit violates the Equal Protection Clause?

Mr. Philip J. Hirschkop: Yes sir, what we submit --

Justice Potter Stewart: It’s not.

Mr. Philip J. Hirschkop: It is not that.

What we submit violates it, is the fact they limit it just to women.

They brought it down to one class, the compulsory -- the notice requirement and the compulsory leaving requirement.

Now taking the fifth month is purely arbitrary, as the Court has recognized.

They could take the eight month or the second month.

They just arbitrarily and virtually flipped a coin to get to the fifth month as the testimony indicates in this case, but what we object to Your Honor is they have singled out women for treatment that men don’t receive.

In this case --

Justice Byron R. White: Give me example of another condition that would predictably resolve in leaving the job then about which you could give some notice.

Mr. Philip J. Hirschkop: Cosmetic surgery Your Honor.

Justice William H. Rehnquist: Well, but isn’t -- doesn’t that --

Justice Byron R. White: Well, that isn’t the condition; that’s just a choice that you are going to -- sometime you are going to do it.

Mr. Philip J. Hirschkop: Yes, but it will necessitate you being in the hospital and being out of the job --

Justice Byron R. White: Well, what you might do -- you mean if you plan to be away during the school year, you give notice.

Mr. Philip J. Hirschkop: Yes sir.

Justice Potter Stewart: But there is nothing inexorable about that as there is about pregnancy, they’re quit different, in fact different.

Mr. Philip J. Hirschkop: No sir, there are some male related diseases that Judge Winter points out in dissenting opinion of Fourth Circuit, which I am not medically familiar, but there are questionably a number of medical conditions where you have a choice as to when you will have an operation and you can go to the school and say, look I am going to have an operation either in six weeks or two in months or three months.

Justice Potter Stewart: Well, the whole point is that when you -- when a woman who is pregnant, she doesn’t have a choice as to when that baby is going to arrive, does she?

Mr. Philip J. Hirschkop: No sir.

Justice Potter Stewart: Short of an abortion or miscarriage.

Justice Byron R. White: And the other thing about it is that there is -- I guess part of the argument is when the woman is pregnant, the point of having or getting out to leave on at five months or four months, is it during the pregnancy she is more likely to be away from work?

That’s the part of the argument.

Now, that isn’t true of cosmetic surgery.

Mr. Philip J. Hirschkop: That’s the argument.

We debate that; we say it is not true.

Justice Byron R. White: Well I know, but that’s the argument.

Mr. Philip J. Hirschkop: Oh yes sir, I exceed --

Justice Byron R. White: Well, give me another -- give me a male related condition that’s like that.

Mr. Philip J. Hirschkop: I don’t have one Your Honor.

My medical knowledge is that limited. On the other hand --

Justice William H. Rehnquist: Well, isn’t too Mr. Hirschkop -- isn’t one the at least contentions here that in addition to being gone during the pregnancy that the teacher herself loses some of her ability to teach?

Now, you say it’s not material but that isn’t exactly similar than to cosmetic surgery where presumably up until the night before the operation, the person hasn’t lost any of their customary ability.

Mr. Philip J. Hirschkop: Your Honor I say it’s not similar, I say it’s not true.

I said pregnant woman can teach as well as any other person in the school system.

Justice Byron R. White: Well, assume you are wrong on that.

Mr. Philip J. Hirschkop: Well, the doctor said we were right in the record.

Justice Byron R. White: I know, but assume you’re wrong, that state says you’re wrong.

Mr. Philip J. Hirschkop: Well, Your Honor they say I am wrong, neither do the doctors say, I am right, but now we look at the disabilities.

If a man --

Justice Byron R. White: If you are wrong, I take it, do you think your case in trouble?

Mr. Philip J. Hirschkop: No sir.

Justice Byron R. White: Well then why don’t you assume that you are wrong for a moment and then tell me what then?[Laughter]

Mr. Philip J. Hirschkop: Okay.

I sometimes have difficulty with that Your Honor, but assuming there is some difficulty in woman teaching while she is pregnant, there is equally difficulty with other people teaching with broken legs, even though they won’t be gone, now you are talking about the elements of the teaching itself.

Justice Byron R. White: Yes.

Mr. Philip J. Hirschkop: Yes, but there is no special regulation on them.

Teaching with bad backs, teaching with heart impairments, teaching with other type of impairments.

Justice Byron R. White: Assuming that -- assume as you, just like doing of course, but assume that pregnancy does impair teaching ability.

Mr. Philip J. Hirschkop: Yes sir.

Justice Byron R. White: The state you say still is disentitled constitutionally to provide for compulsory leave.

Mr. Philip J. Hirschkop: Yes sir, only insofar as they single it out from other matters.

If they would go by the state law, and say where a disability is such --

Justice Byron R. White: Well, you just told me, you couldn’t find -- you couldn’t think of any other male related disease that had that -- the cosmetic surgery, that doesn’t involve any impairment.

Mr. Philip J. Hirschkop: Well, it doesn’t male related then, it could be --

Justice Byron R. White: Well, or yes I --

Mr. Philip J. Hirschkop: It could be a (Inaudible) Your Honor.

Justice Byron R. White: Give me an example.

Justice William H. Rehnquist: Well, with a broken leg you don’t have the anticipated disability long in advance.

It seems to me that the state is arguing that pregnancy combines possible disability during the term plus an anticipated death and a disability at a given time.

And I think Justice Stewart and Justice White have both asked if you claim this as sex discriminatory, give us an example of something else the state should have included in this that represents all those things and that they didn’t and I have yet to hear your answer to that.

Mr. Philip J. Hirschkop: I can only refer you to Judge Winter’s dissenting opinion where he does indicate some medical disabilities that men suffer.

But again I point Your Honor to the fact that we are making an assumption that woman can’t teach during pregnancy, which the record is the opposite of.

The record says they can teach.

Doctor Don who was the Head of the Medical College of Virginia Section on Gynecology and Obstetrician --

Justice Byron R. White: What do you want us to -- if there were contrary judicial finding below, you would like us to differ with that and overrule it.

Mr. Philip J. Hirschkop: Insofar it’s unsupported by the record, yes sir.

Now, we say it is unsupported by record to the contrary a very noted physician in fact two of them in Virginia. One of them even had, I think Judge Marage pointed out, delivered his own baby is called Dr. Forrest, but the fact is the record says just the contrary, the assumption you’d had me make Your Honor that a woman can’t teach.

And our basic problem with this is that they single out women for special treatment that (Inaudible).

Justice Lewis F. Powell: Mr. Hirschkop.

Chief Justice Warren E. Burger: Where do you think of the constitutional line -- where do you think, Virginia couldn’t constitutionally draw the line?

You don’t like five months, six months.

Where, at what point, do you think they could draw it, or do you think they couldn’t draw any line?

Mr. Philip J. Hirschkop: They could draw a line on notice Your Honor.

Chief Justice Warren E. Burger: Well, or something about the other end --

Mr. Philip J. Hirschkop: Termination?

Well, according to the medical testimony here, they couldn’t draw the line.

It would be up to the person as in any other situation to say that they can teach until such time.

Now, if they had -- as they can no longer adequately carry out their duties.

If they had a regulation that a person who apparently couldn’t carry out the duties, because of an impending disability, which pregnancy would be one of the obvious impending disabilities, would have to give notice, and then in fact would have to present a medical certificate or submit to an examination of the school doctor, that would be reasonable if it was applied across the board.

The main problem her is they picked out just one thing to harp on which is unconstitutional Your Honor.

Justice Byron R. White: You’ve also, it seems to me, taken a position that would preclude the school board from saying that pregnancy, while a pregnancy goes on up until the time of childbirth, is, in any way, debilitating?

Mr. Philip J. Hirschkop: Oh no sir, they have a state law, they could operate under that.

If disability is such that the person can’t carry out --

Justice Byron R. White: Well, I know but you won’t accept that.

Mr. Philip J. Hirschkop: I will accept that.

Justice Byron R. White: Well, you won’t accept that, I mean you would accept it if pregnancy as some women experience it, that is really, physically debilitating.

But you say the woman can go as just as good a teacher while she is pregnant as any other time.

You will not accept the fact that she is -- that the pregnancy is a debilitating condition.

Mr. Philip J. Hirschkop: In some people it is.

Justice Byron R. White: Alright, of course it is in some people, but you wouldn’t accept a general regulation describing it as a debilitating situation.

Mr. Philip J. Hirschkop: It’s not for me to accept personally --

Justice Byron R. White: If you will accept that, then we have a different --

Mr. Philip J. Hirschkop: I think Your Honor --

Justice Byron R. White: Certainly, a difference where the state is considerably narrow.

Mr. Philip J. Hirschkop: They cannot say that a person cannot teach, because pregnant, in any way they say a person can’t teach because they got a cold.

Now, cold can result to pneumonia.

The statistics in this case are lot more hours lost from teaching for colds than during pregnancy, statistics that we have from the Labor Department.

Justice Lewis F. Powell: Mr. Hirschkop, as I recall the record the Cleveland case which you had argued here at any given time, they are about 10-12% of the women in the system, childbearing age who are on maternity leave.

Can you think of any other cause of disability of continued absence that would produce a leave as of any given date of that magnitude such as cosmetic surgery, for example?

Mr. Philip J. Hirschkop: Not a surgical type leave which required an operation but of course --

Justice Lewis F. Powell: Can you think of any?

Mr. Philip J. Hirschkop: Well of course the statistics that absenteeism itself from the Labor Department had pregnancy is one of the lower causes, but it didn’t include the actual period the woman was going for the birth itself.

It included the period that was still employed during which they would miss for a doctors appointments or, get the questions asked this side, the job related, during job related times, they are missing because of illness as something during the pregnancy.

Justice Lewis F. Powell: But you’ve mentioned cancer and broken legs and cosmetics surgery.

Is there any other single problem in this area that causes absence on the part of a teacher for prolonged period of time that he is comfortable in terms of the number of teachers that puts out of the system to pregnancy?

Mr. Philip J. Hirschkop: Not for operable disabilities Your Honor.

I would not personally have that knowledge.

I am not that familiar with the record, although I did read it, but not for operable disabilities.

But in terms of overall disabilities, in other words time missed on job itself, there are far greater causes.

Justice Lewis F. Powell: Like the common cold.

Mr. Philip J. Hirschkop: We have that statistic in the record Your Honor from the Department of Labor.

Thank you Your Honor.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.