DREW MUNICIPAL SCHOOL DIST. v. ANDREWS

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Argument of A.f. Summer

Chief Justice Warren E. Burger: We will hear arguments first this morning in 74-1318, Drew Municipal Separate School District against Andrews.

Counsel, you may proceed whenever you are ready.

Mr. A.f. Summer: Mr. Chief Justice and may it please the Court.

I am Schempp (ph) attorney from Indianola, Mississippi representing the petitioners, Drew Municipal Separate School District and the individuals, the Superintendent and the Board of Trustees of the school district.

The Court has, in this case, permitted divided argument for both petitioners and the respondents and I will speak first on behalf of the petitioners and Mr. Allain of Jackson, Mississippi will argue in rebuttal for the petitioners.

I think that it is important in this particular case to discuss the factual background against which the rule in question was adapted.

The town of Drew, Mississippi is located in a rural area of the Mississippi delta in Sunflower County, Mississippi and according to the 1970 census, had a population of 2,574.

The school district is comprised of the Town of Drew and some additional territory, added territory outside the town and within the County of Sunflower.

The entire district has a population of approximately 5,000-6,000 residents.

The school itself is divided into an elementary school, a junior high school and a high school in all 12 grades of approximately 1,200 students, 80% of which at the time of this litigation were Black, 20% White.

It is a public school system in Mississippi.

There are three separate schools.

There is Hunter High School, Hunter Junior High School, and A.W. James Elementary School.

Justice Potter Stewart: The whole school population goes successfully to each of these three schools, is that it?

Mr. A.f. Summer: Yes, Mr. Justice Stewart, that is correct.

Justice William J. Brennan: (Inaudible)

Mr. A.f. Summer: They are all, Mr. Justice Brennan, within the Town of Drew.

They are scattered locations throughout the community.

The school system is fully integrated and the District Court so found in this particular case that it is fully integrated as to faculty, staff and students.

During the school year 1971-1972, within this school system, there were 28 schoolgirl pregnancies, requiring those children 13-17 years of age to be forced to withdraw from school to give birth to children out of wedlock.

In Sunflower County, Mississippi alone, the statistics in this record as introduced by the respondents as an exhibit, in the record and is incorporating the appendix, the statistics for 1971 show that of all live births in Sunflower County, Mississippi 35.2% were illegitimate.

Now, faced with this situation, the alarming rise in schoolgirl pregnancies, an alarming rate of illegitimate birth within the community and county, the superintendent after having learned of the fact that there were teachers within -- teacher's aides within his school system that were parents of children born out of wedlock.

Mr. Petty, the superintendent activated his rule, and I will discuss the rule in just a moment, which resulted in the non-rehiring of one of the respondents herein and the non-hiring of the other respondent herein.

Now, the rule has been much discussed.

It was not a codified rule.

The rule was Mr. Petty’s and it was subsequently approved by the Board of Trustees.

I would like to state what we feel and submit to the Court what constitutes the rule that no individual who is the natural parent of a child born out of wedlock may be employed in the Drew Schools as a teacher or a teacher aide or in any other position or capacity in direct contact with the students and that has a potential role model status.

The rule was to regulate the status and not the present morals of an individual seeking employment.

Now, the respondent, Rogers, was employed during the 1971-1972 school year as a teacher aide.

Justice John Paul Stevens: Mr. Attorney, could I just interrupt for a second?

Where did you quote the rule from?

Is that from the principal’s testimony or is that in writing somewhere?

Mr. A.f. Summer: Mr. Justice Stevens, this is from a distillation of the testimony in the record and the way the rule is applied.

Justice Potter Stewart: Is it counsel’s distillation or Trial Court’s or the witnesses' or whose is it exactly?

Mr. A.f. Summer: At this point, I can only say that it is counsel’s, arrived at through rereading the record and the testimony in the writing and the application of the rule.

Justice Potter Stewart: Now the rule applies to much more than just teachers and teacher’s aides, does it not?

Mr. A.f. Summer: That is correct.

Justice Potter Stewart: Or an instructor or an employee?

Mr. A.f. Summer: That is correct, Mr. Justice Stewart.

It does.

It would affect any individual that had direct contact with the students and who served in a role model capacity, in other words, an individual to whom the students relate and look up in role model status.

Justice Potter Stewart: Probably just about everybody except maybe the people who are --

Mr. A.f. Summer: The cafeteria warden is --

Justice Potter Stewart: And at night when the students are out you do janitorial services, would it not?

Mr. A.f. Summer: Correct, I think the superintendent was unclear at the time of his testimony as to whether it would affect school bus drivers and some such things as this now, but I think it is fair to say that it would affect anyone to whom the students could relate in a role model capacity and it would, in the district’s opinion, have an impact upon their learning experience.

Chief Justice Warren E. Burger: (Inaudible) as a rule, might it not be more accurate to say that this was an employment policy or a personnel policy?

Mr. A.f. Summer: Mr. Chief Justice, you are exactly right.

I think it has been designated as a rule.

It is not codified.

It is not written.

I think you are correct in saying it is a policy of employment.

Yes, sir.

Justice Potter Stewart: (Inaudible) employees specifically this personnel policy applied in addition to teachers and teacher’s aide?

Mr. A.f. Summer: Mr. Justice Stewart, there has been no other individual within the school system that has been caught by this rule and excluded from employment other than teachers and teacher’s aides.

Now, a reading of the record will reflect that the superintendent, at the time of his testimony, was not completely certain as to the full application of the rule.

I think it had to be taken on a case by case basis.

Unknown Speaker: (Inaudible)

Mr. A.f. Summer: That is correct, but I think --

Justice Potter Stewart: If he was not certain, how could anybody else be?

Mr. A.f. Summer: Mr. Justice Stewart, he was not certain as to the particular jobs -- he would have to look at the particular job at the particular time.

In other words, he was questioned and it is in the appendix, his testimony in the appendix on cross-examination begins on page 35, and he was questioned at length about this.

Reading on page 38 of the appendix, he was questioned as to whether or not the policy would extend to teachers and his answer was yes, to teacher’s aides?

“Yes,” librarians?

“Yes,” extends to gym teacher?

“Yes.”

Would it extend to a cafeteria worker?

“Yes, I have never had that to occur, but I think it would, yes.”

What about a secretary?

“Yes,” a janitor?

“I am not sure about a janitor.”

Why not?

His answer was “a janitor runs into children each day.

I think each one of us can remember some janitor who gave us candy or was close to us.”

Would it extend to a janitor, that is still a question, his answer is “I do not know.

It has not occurred and I have not made the decision yet.”

Would it extend to a bus driver?

No response, a school bus driver?

“I cannot say.”

Would it extend to a nurse?

“Yes,” A social worker?

“Well, if we had a social worker,” A principal?

“Yes,” a party who volunteers to do schoolwork or to work with teachers?

His answer was “If we had those, it would, yes.”

Would you object to a PTA President on the basis of his unwed parenthood?

“I would.”

Justice Byron R. White: You think it -- there are just teachers involved in this case, I take it?

Mr. A.f. Summer: Yes, Mr. Justice White, the two involved, this was not a class action, the only two individuals involved were applicants -- one was an applicant for teacher aide position and the other --

Justice Byron R. White: Do you defend the other boundaries of this --

Mr. A.f. Summer: Our position is, we do not and our brief so reflects that these individuals who were caught by the rule cannot be put in a position of asking this rule be stricken down because some other individual might be caught by it.

Justice Thurgood Marshall: My other question is, was this rule published?

Mr. A.f. Summer: Mr. Justice Marshal, it was disseminated through the staff level of the school by the superintendent down to the individuals responsible for recommending the teachers for employment.

Justice Thurgood Marshall: And to the teachers?

Mr. A.f. Summer: And to the teachers through the principals, that is correct.

Going back to, and it may be helpful to the Court to give a little background on the respondents involved, the respondent, Rogers, who was employed and was in the employee of the school district from 1971 to 1972 school year, served as a teacher aide.

Now, teacher aides are not teachers as such.

They assist the teachers.

They have probably more direct contact with the students than the teachers themselves.

They go with the students to recess, to the cafeteria.

They assist them in different activities throughout the day.

The respondent Rogers, serving in this capacity, was single and had one child which, there is no question, there is no conflict of evidence to the fact that this child was born out of wedlock.

She was notified during the spring of 1972 that she would not be reemployed for the 1972-1973 school year.

At the time she was notified, she was pregnant with the second child and still was not married.

Now, the respondent, Andrews, made application for a teacher’s aide position in December of 1972.

Her application indicated that she was single and had no children when in fact she did have one minor child which was born out of wedlock.

A routine investigation into this individual’s qualifications for employment revealed that she did in fact have one child.

Now, I want to emphasize to the Court that no one was fired as a result of this policy, only not employed.

Now, in February 1973, this suit was filed in United States District Court not as a class action.

Hearings were held during March through May of 1973.

The suit was filed under 42 U.S.C. 1981, 1983 Title VI and the Fifth and Fourteenth Amendments.

Of course we submit to the Court that is not a Title VII case.

It has never been played, the procedures were not followed -- the administrative procedures were not followed.

Justice William H. Rehnquist: The case was filed under Title VII?

Mr. A.f. Summer: They alleged in their complaint, Mr. Justice Rehnquist, that this was a violation of Title VII and as I understand Title VII, it was --

Justice William H. Rehnquist: Do you think Title VII conferred a private right of action?

Mr. A.f. Summer: It is the position of the respondent that it does.

Justice William H. Rehnquist: Is that right?

Mr. A.f. Summer: Yes.

Now, the District Court, after exhaustive evidentiary hearings, found that the rule policy had no rational basis to the purpose for which it was made and in the alternative, the Court took a further step and declared that the policy created a discriminatory classification based upon sex and that the school district had the burden of showing a compelling state interest and struck down the policy on both grounds.

The District Court did not reach the issues of race or privacy that were urged upon it by the respondents.

An injunction was issued to the school district compelling the school district to employ these individuals.

On appeal to the United States Court of Appeals to the Fifth Circuit, the Court of Appeals affirmed on traditional equal protection grounds and found it unnecessary to decide on any other issues, including the issue of sex or race.

Now, it is of our position that given the factual background in this particular case that the rule has a rational basis for the purpose for which it was adapted and we submit to the Court that the purpose for which this rule was adapted was an attempt by the school district to curb an alarming rate of illegitimate births within the school population itself.

The respondents say that there were other methods to do this, but we submit this was the only way that the school district could handle this situation.

There were other ways it could be augmented -- that could augment this policy, but as suggested by respondents, to give sex education is good, to provide contraceptive devices is good, but for the school district to give tacit approval to this status of parenthood out of wedlock of children that this permitting that to remain and this as a policy of their school district to permit these people to teach would undermine any of the method that they attempted to enact to curb this situation.

It is our position that an individual in that status is an improper role model.

Now, the expert testimony is to the effect that teachers, and I think this Court has own record that teachers are in a very sensitive area in a classroom where young minds are molded and shaped for the future where ideals are instilled upon them, the morays of society and they are some moral overtones involved.

We submit that this --

Justice John Paul Stevens: In the record, they show that students knew that these two teachers were mothers of illegitimate children?

Mr. A.f. Summer: Mr. Justice Stevens, there is nothing in the record to reflect that.

We take the position there that the potential exists, whether it in fact existed at that time, that the potential knowledge exits and once that knowledge does exist, the knowledge may not exist today, but it could exist tomorrow in a small rural school district where people know their neighbors and know what their neighbors are doing and they know about their teachers and what their teachers are doing, that knowledge is readily obtainable in a situation such as this and once that knowledge is obtained, that the effectiveness of that teacher is completely destroyed.

If a teacher admits that she does -- he or she does in fact have a child out of wedlock, then if the student has respected that teacher, then we feel that the child loses some respect.

Chief Justice Warren E. Burger: What about the respondents here, answer to question on the application in the negative on the subject of any illegitimate children.

Was any issue made in the litigation of the false answer having, in mind that in a federal application, it is a felony to give a false answer to an application for a federal position?

Mr. A.f. Summer: Mr. Chief Justice, it was only elicited on cross-examination, her purpose.

This was respondent Andrews, her purpose in falsifying her application.

Her only responsibility is that she knew of the existence of this policy in order to get a job, the only way she can get a job was falsify application in this regard.

Chief Justice Warren E. Burger: Any of the judges dealing with this or did the school board make an issue out of false answers as distinguished from the substantive aspects of the case?

Mr. A.f. Summer: In the trial of this matter, it did not go beyond that.

No, sir.

I saved it --

Justice Harry A. Blackmun: I take it that the rule would be effective even though the applicant married the father of the child later?

Mr. A.f. Summer: Mr. Justice Blackmun, that is correct.

This was much discussed in the lower Courts.

The reason for that is that once an individual, male or female, Black or White, has a child out of wedlock, if they fall into a status at that point of having an illegitimate child, regardless of a change in circumstances, they still remain in that status.

Chief Justice Warren E. Burger: The question here, is that an issue in this case?

Justice Harry A. Blackmun: No, sir.

We take the position that --Mr. Chief Justice, that we are regulating merely a status of employment, that we are not attempting to regulate present moral status.

If there are no further questions, my time has expired.

I will be happy to answer any other questions that the Court may have.

Justice William H. Rehnquist: Did either of these respondents marry the person who fathered their child?

Mr. A.f. Summer: Mr. Justice Rehnquist, the record does not reflect that they have.

No, sir.

Justice Harry A. Blackmun: The one did marry later, did she not?

Mr. A.f. Summer: There has one --Mr. Justice Blackmun, one that has married subsequent to the litigation.

Justice Harry A. Blackmun: (Inaudible) does not speak of it?

Mr. A.f. Summer: It would be outside the record, that is correct and quite frankly, I do not know whether this would be the father of the child or not.

Thank you.

Chief Justice Warren E. Burger: Your brother, Counsel, is saving all his time for rebuttal.

Mr. A.f. Summer: That is correct.

Chief Justice Warren E. Burger: Very well.

Please proceed.

Argument of Charles Victor Mcteer

Mr. Charles Victor Mcteer: Mr. Chief Justice and may it please the Court.

In response to one point, I would like to make this issue exactly clear.

Kay D. Andrews who came to me in 1973 is now married and she is married to a young man, Mr. Alonzo Peacock.

As to the status of whether or not he was the father of the child, I have no idea whatsoever, but she is a married individual.

Your Honors, I am going to describe to you in this divided argument the basic --

Chief Justice Warren E. Burger: Is it in the record?

Mr. Charles Victor Mcteer: Unfortunately, Your Honor, it is not in this record at this time.

Chief Justice Warren E. Burger: You could not really expect us to give it any weight or consideration here, would you?

Mr. Charles Victor Mcteer: I would expect mere logic, Your Honor, if the fact would become known to the Court, to demand basically that the Court might be helpful --

Chief Justice Warren E. Burger: That is not the way Appellate review is conducted.

Mr. Charles Victor Mcteer: I understand, sir.

However, the fact is evident.

I would discuss the basic rationality of the rule, sir, and at the same time set forth the rules’ racially discriminatory aspects.

My co-council, Ms. Copelon, will set forth the sexist comminatory aspects of the rule as well as the standard of review and the basic privacy rights which we claim have been deprived in this cause.

The rule precisely stated, notice the fact that all teachers, teacher’s aides, cafeteria workers, dietitians, librarians, gym teachers, secretaries, principals, PTA Presidents, nurses, social workers, volunteer workers and perhaps even maids, janitors, and school bus drivers who have ever bore or site a child out of wedlock are forever barred from employment of a Drew Municipal Separate School District.

The rule was solely the brainchild of Georgia Petty, who had enacted this rule without talking to any member of a faculty, without talking to any principal, supervisor, adviser and made this rule solely upon his own action.

In fact, the School Board did not even know the rule’s enactment until after this lawsuit had been filed.

The first time that many of our clients were aware of the rule was after.

A group of --

Justice William H. Rehnquist: The School Board did, ultimately adapt it, did it not, ratify it?

Mr. Charles Victor Mcteer: It did ratify it.

There is no evidence on the face of the record.

There was mere approval or whether there is a majority vote or a unanimous vote, simple ratification.

Justice William H. Rehnquist: Is that the constitutional significance in your view?

Mr. Charles Victor Mcteer: Only as to the basic rationality, Mr. Justice Rehnquist, of the rule’s application in view of the fact that we are saying that the rule was solely the creation of Mr. Petty.

Justice William H. Rehnquist: If in fact the body charged with the administering the school district does ratify it, I do not see how the fact that -- someone has to think of every rule, the fact that a Board member rather than the superintendent thought it up would bear on the rationality?

Mr. Charles Victor Mcteer: This could bear on the rationality only as to the concern as I am trying to point out here, sir, that no other individuals were involved in the creation of the rule until after this lawsuit became evident.

No one else, frankly, knew about the rule until this became evident.

Certainly, the School Board did not know until after the suit was filed.

Doing three days of testimony, before the United States District Court in Greenville, Mississippi and numerous depositions which were taken, these defendants attempt to set forth some basic rationality for the rule.

They claimed, in essence, that the rule is necessary in order to maintain a proper moral climate in the school district because as Mr. Petty testified, all unwed parents are simply immoral people.

As a second justification, they claim that the rule was necessary to reduce schoolgirl pregnancies because somehow or another, the mere presence of a schoolgirl, excuse me, the mere presence of an unwed parent in the school district would somehow or another increase schoolgirl pregnancies and I might note for the record that although there was reference to 28 schoolgirl pregnancies, there was no reference whatsoever to any increase.

We do not know whether or not the figures had increased over the past years or what.

We just know that there were 28 schoolgirl pregnancies at one period of time.

In their most recent submission before this Court last week, the defendants have set forth a third justification.

That third justification being that an individual who is an unwed parent gives the appearance, if you will, of impropriety.

I trust we have come full circle now back to our morality justification.

However, the question decided before the courts below and the question which is presented to this court is whether or not all unwed parents are moral lepers so infected with irredeemable disease that they actually endanger the moral development of children.

The Trial Courts and the Fifth Circuit looking at this basic concept, using its own language, noted that this construct was patently absurd, mischievous, prejudicial and would only create stigma where it had never been evident before.

The Courts found this rule to be clearly irrational because, as a matter of fact, the morality is not the logical consequence of unwed parenthood and furthermore, all unwed parents are simply not immoral.

But more importantly, the rule completely ignores such aspects of supposed immorality as premarital sex, extramarital sex.

The rule does not concern itself at all with the present moral worth of any individual, their reputation or character.

Justice William H. Rehnquist: Mr. McTeer, do you think that the State of Mississippi could prohibit by law fornication and premarital sex if it wanted to and make it a crime?

Mr. Charles Victor Mcteer: Yes, sir.

However, I do not believe that they can use such criteria for the purpose of stigmatizing individuals and punishing them.

Justice William H. Rehnquist: Surely, if you are charged in a Criminal Court and convicted on a charge I thought you have stigmatized that?

Mr. Charles Victor Mcteer: There is no individual in this Court, none of these plaintiffs have been charged with any criminal crime or violation.

These women have attempted to rear their children rather than kill them or abort them.

They have made a basic decision.

Justice William H. Rehnquist: Why do you not address yourself to my question?

Is your contention that some sort of proof was lacking here that these people in fact had sex out of wedlock? Because if the state can make it a crime to do that, I do not see why the school cannot say “if you in fact do it, you are not fit to teach?

Mr. Charles Victor Mcteer: Mr. Justice Rehnquist, in response to your question, I am trying to say here that these individuals cannot be stigmatized solely on the basis of having bore a child out of wedlock.

If the goal and purpose of the rule is to reduce schoolgirl pregnancies, then where is the correlation between unwed parenthood and an increase in schoolgirl pregnancies?

If --

Justice William H. Rehnquist: You concede that if Mississippi was to make it a criminal offense to do that and they were proven to have done it by a jury, they could go to jail?

Mr. Charles Victor Mcteer: In fact, Mr. Rehnquist, the rule here, as evidenced by my co-counsel’s statement --

Justice William H. Rehnquist: Will you answer my question?

Mr. Charles Victor Mcteer: I am answering, I am trying to, sir, I am trying to.

Having sex out of wedlock is not a disqualification of this rule.

It does not disqualify you from employment by way of the rule’s operation.

Bearing a child out of wedlock is what disqualifies you.

You can have extra --

Chief Justice Warren E. Burger: Do you concede that the employment barrier could be based on a conviction or fornication if the state had such a law?

Mr. Charles Victor Mcteer: To answer your question, Mr. Chief Justice, there is no such law to the best of my knowledge.

Chief Justice Warren E. Burger: We explore hypothetical compositions here.

Mr. Charles Victor Mcteer: Yes, sir.

Chief Justice Warren E. Burger: If there was a state law making it a criminal act, could the conviction of a crime be a barrier to employment by a school board?

Mr. Charles Victor Mcteer: In the absence of a showing, Your Honor, that that criminal act was directly correlated to either any of the justified purposes of the rule, there would be no basis for that conviction or otherwise evidence to be a criterion of employment.

Chief Justice Warren E. Burger: Even a statute of the state that no person shall be employed as a teacher or teacher’s aide and whatever the other categories are, where they are exemplars to the students, if they have been convicted of a criminal act in a judicial proceeding, would that be an unconstitutional statute?

Mr. Charles Victor Mcteer: Your Honor, you are taking me from the entire plather of criminal acts that could be performed by a school teacher.

I am talking about women who are having children.

Chief Justice Warren E. Burger: You are not required to answer a hypothetical question, I am just trying to test your argument.

Mr. Charles Victor Mcteer: To answer your hypothetical question, I am trying to say here that if a parent bears a child out of wedlock or a woman or a man bears a child or sires a child out of wedlock, that criterion of employment, even if it led to a conviction of cohabitation or whatever under Mississippi law is not a justifiable criterion or rationally related to any viable, apparent goal of the school district.

Justice Thurgood Marshall: (Inaudible) Mississippi makes the having an illegitimate child a crime?

Mr. Charles Victor Mcteer: Your Honor, to the best of my knowledge, there is no such statute.

Justice John Paul Stevens: Referring to Mr. Justice Rehnquist’s question, do you think the state could make it a crime to bear a child out of wedlock?

That is the question he perhaps should have asked you.

Mr. Charles Victor Mcteer: Your Honor, that question -

Justice John Paul Stevens: (Voice Overlap) the circumstances of the pregnancy?

Mr. Charles Victor Mcteer: Your Honor, I would think that that would bear directly upon basic fundamental interest this Court has recognized as to the decision to bear, to beget a child.

Justice John Paul Stevens: You say the state could not make it a crime to bear a child out of wedlock?

Mr. Charles Victor Mcteer: I would certainly make that statement clearly --

Justice John Paul Stevens: Of any other parents than that --

Mr. Charles Victor Mcteer: That is correct.

But, Your Honor, this becomes more evident when we look at certain factual statements and background that is evident in the Drew area and perhaps, I can explain this a little bit more clearly.

There were more Back illegitimate children born in Drew, Mississippi for a five-year period from 1968-1971 than total White legitimate or illegitimate children born in the same period.

80% of this school district is Black.

The facts that I have submitted to you in the supplemental brief clearly indicate that from the period 1968-1971, the number of Black faculty members at the Drew Municipal Separate School District which was desegregated by way of a Court Order, 15 years after Brown versus Board of Education, has decreased from 75% at the A.W. James Elementary School to 36%.

The point which is evident is that this rule, by its operation, Your Honors, can only affect Black people and the reason why it can only effect Black people is because for every 47 -- 46 illegitimate children born in Drew Mississippi, only one is a black -- a White child, only one is a white child.

This is a clear Gomillion case.

Gomillion is clearly applicable here because the state has created a social policy rather than municipal boundaries which can only affect Black people and as a consequence, only Black people will be affected by the rule’s operation.

Justice Potter Stewart: Well, Gomillion was a Fifteenth Amendment case?

Mr. Charles Victor Mcteer: It certainly was, Your Honor.

Justice Potter Stewart: Fifteenth Amendment is not implicated here?

Mr. Charles Victor Mcteer: No, it is not, Your Honor, but I would have presumed that basic concepts of constitutional laws, they reflect upon racial discrimination as it concerns the creation of racial classifications only affecting a particular racial group would certainly be applicable.

The only individuals that have been stigmatized or eliminated from employment by this rule’s operation were five Black women and although the defendants in this cause have repeatedly made reference to the supposed right of individuals to bear children out of wedlock, I would like to state that it was 1868, before Black people in this country had the right to bear children in the wedlock and that is a clear consequence of the enactment of the Thirteenth and Fourteenth and Fifteenth Amendments.

I do not have to say anything about Dred Scott.

It is clear in many places throughout this Country that, as Judge Timmy said in Dred Scott clearly, Black people had no rights which a White man was bound to expect and so, as a consequence of this rule’s operation.

The only individuals who will be clearly affected by the rule’s operation are Black people.

It is an insurmountable final exclusion from employment.

“Thou shalt not work if thou have a child out of wedlock in Drew,” and there can be no more and no greater stigmatizing effect upon any person, particularly young Black women who went to college, he did not tell you that Katie Mae Andrews Peacock had a college degree but she worked nights in a factory in order to get to it and she had a child while she was still in high school and it was four years later when the rule was made evident to her.

If a Black woman struggles through high school, struggles through college, and then at the moment when she finally gets out of the circle of poverty is told that because she bore a child out of wedlock four years ago she cannot have a job, then indeed, the constitution is senseless to us and makes no possibility for any change.

Thank you, sir.

Justice William H. Rehnquist: Mr. McTeer, the National Education Association and the government have both filed amicus briefs suggesting that this petition be dismissed as improvidently granted.

Does your client take a position on that question one way or the other?

Mr. Charles Victor Mcteer: I will take the position, Your Honor, that we have briefed this case thoroughly and throughout that indeed, we recognize the fact there is a possibility for some right of action to Title IX.

However, there is no clear statement under Title IX that there is a private cause of action.

Additionally, under Title VII, I might note that at one time we did try to create this action via Title VII action, but in 1973 when the action was filed, the Title VII amendments had just been put into effect and to be actually honest about it, Your Honor, EEOC was not very sure as to whether or not we could continue with this cause of action or create a cause of action against the school district.

Furthermore, there was a length of time problem involved in the enactment of Title VII and the period of time it takes a matter resolved.

Also, Your Honor, the fact of the matter is that we have, here, two federal, excuse me, a Federal District Court and a Court of Appeals which ruled that the flagrant nature of the violation here was so evident that the Court granted injunctive relief within four months after the lawsuit was filed.

And finally, Your Honor, I would like to make note of the fact that in the Cohen case Mr. Justice Stewart made it absolutely clear that although in that particular factual circumstance, in footnote 8 -- in that particular factual circumstance it might be evident that all future cases would be governed by Title VII clearly as to these individual plaintiffs and respondents the Court could actually make a ruling.

And so, for all of those reasons, we ask that the nature of this flagrant constitutional violation be made evident.

Thank you, Gentlemen.

Argument of Rhonda Copelon

Ms Rhonda Copelon: Mr. Chief Justice and may it please the Court.

I will address myself here to the fundamental rights intruded upon by this rule and also to the sexist comminatory character of the rule.

Now, Mr. Justice Rehnquist, as I understand your question, you are saying why can you not use the unwed mother as a symbol of some sexual conduct that is not appropriate here for schoolgirls.

Justice William H. Rehnquist: My question was whether Mississippi could make either fornication or rephrased by Justice Stevens, that bearing of the child out of wedlock could impose criminal penalties for it?

Ms Rhonda Copelon: Well I think, as we will show, that it is clear that they could not make the bearing of an out-of-wedlock child a crime.

Moreover, fornication is not a crime under the law of Mississippi.

You have to have cohabitation.

You have to have continual conduct.

We would also question, but it is not before this Court to decide, whether Mississippi has the power to intrude upon the private lives of individuals.

It is not an enforced statute to be sure.

Justice William H. Rehnquist: Do you think Mississippi could make adultery a crime?

Ms Rhonda Copelon: I do not think, under this Court’s decision, it could, Your Honor, but I do not think that that question is before this Court.

I also think that the school district cannot --

Justice Harry A. Blackmun: Do I understand you correctly that -- did you just say that adultery no longer can be made a state crime under --?

Ms Rhonda Copelon: Mr. Justice Blackmun, I am saying that under this Court’s decisions in Isenstot and Roe and in number of cases where the deterrence of premarital conduct is not a purpose for punitive treatment.

It is not a useful way.

If we look at the reality recognized by Mr. Justice Brennan in Isenstot, by this Court in Griswold, these kinds of statutes intrude deeply into personal freedom.

I do not think this Court has to decide that issue.

That is not the issue.

The issue in this case is whether a woman can be --

Justice Harry A. Blackmun: (Inaudible) the question when you say that?

Ms Rhonda Copelon: I am sorry, Your Honor.

The issue in this case is whether a woman can be brought out as a symbol of her and only her premarital sexual conduct and we say that --

Chief Justice Warren E. Burger: (Inaudible) apply only to women females or does it apply to Black --

Ms Rhonda Copelon: Your Honor, I would like to address that question.

Yes, it does apply only to females.

There are two reasons --

Chief Justice Warren E. Burger: Do you mean it applies only to females or its impact is greater on females?

Ms Rhonda Copelon: The way the rule is defined, designed and implemented, it applies only to females.

It is directed at females.

That is its purpose.

Now, let me try to explain.

The reason we say you cannot think aloud a woman, a parent of an unwed child, here a woman, an unwed mother as a symbol is for two reasons.

Number one, you are intruding on fundamental human rights recognized by this Court.

The right not to be forced to have an abortion which is one way of avoiding the rule and maintaining your job and the right not to be required to get rid of your child, but to hold on to your child.

Another right recognized by this Court is fundamental.

Thirdly, the way this rule is designed, the way it is defined by Mr. Petty, the way it is implemented and its impact inevitably shows the sex discriminatory character of this illegitimacy classification.

First, let me address --

Chief Justice Warren E. Burger: You are arguing that this kind of conduct has no impact on children if they are aware of it?

Ms Rhonda Copelon: Yes, Your Honor, and that is also absolutely true.

There is no symbolic character to this rule.

There is no impact on the schoolchildren.

There is no knowledge demonstrated.

Chief Justice Warren E. Burger: No violation to the rule?

Ms Rhonda Copelon: Pardon me, Your Honor?

Chief Justice Warren E. Burger: I was addressing my question to whether premarital conduct of this kind by teachers, men or women, if known in the community would have no adverse impact on children or students in the primary and junior high schools?

Ms Rhonda Copelon: Your Honor, number one, just to bring it down to the facts in this case, there is no knowledge whatsoever shown by the schoolchildren.

Beyond that, there is no basis to believe that schoolchildren even if they knew would do as the NEA said “monkey see, monkey do.”

Justice Potter Stewart: You are talking about expert testimony in this case on both sides on that issue, is it not?

Ms Rhonda Copelon: Yes, there was, Mr. Justice Stewart.

I would like to address myself first to the abortion question because I think that the petitioners here are raising a straw person.

They are saying we are coming to this Court and we are saying you are espousing a right to be illegitimate children.

We are not espousing that here.

No one espoused it in the schools at Drew, Mississippi.

The respondents did not espouse it.

What we are saying is that this Court said in Roe that you cannot prevent a woman from having an abortion and you cannot likewise compel her to have an abortion.

This rule makes very clear one thing.

If she has an abortion, she can keep her job.

They are not investigating premarital sex and they are not investigating abortion, and they could not.

They say they could not --

Justice Thurgood Marshall: There is another possibility too, is there not?

Ms Rhonda Copelon: Yes, Your Honor, there is another possibility and that is, as the District Court said, a woman could take the more circumspect or conventional route and surrender her children to others for upbringing.

So, the other price of employment --

Justice Thurgood Marshall: No, she could not get pregnant?[Laughter]

Ms Rhonda Copelon: That is for certain a possibility, Your Honor.

On the other hand, it was not a possibility for these respondents.

They did not know about contraception.

They did not have the counseling as Mrs. Peacock herself said, that White folks have that tells them about how to not get pregnant.

She did not want to get pregnant.

She says it is a hard thing to have an illegitimate child, a child out of wedlock.

That option was not open there and the school district is not helping that though they say they are concerned about schoolgirl pregnancies.

Your Honor, the rule has its impact in terms of coercion and in terms of burdening fundamental liberties not only on the woman, but on the child, because the child and the mother are bound up.

If the child is abandoned, the child is estranged.

For a Black child and for a Black unwed mother, there are not very many options about abandoning your child because it is true abandonment.

There are not many homes that will take Black children and adapt them and so, for the Black child, it is a life of parentlessness that that mother would be subjecting the child to and a life of institutions and a life of temporary shelters.

Justice Potter Stewart: Is this an Equal Protection Clause claim because the way you are arguing it does not sound like it and I wondered?

Ms Rhonda Copelon: It is dual, Your Honor.

It is that we say that there are fundamental human rights directly infringed here by the exclusion from employment and so there is Due Process liberty involved.

Justice Potter Stewart: If you are right, the Equal Protection Clause has nothing to do with this case?

Ms Rhonda Copelon: No, Your Honor, it --

Justice Potter Stewart: If you are right, you would prevail on that basis?

Ms Rhonda Copelon: We could prevail on that basis, Mr. Justice Stewart.

Justice Potter Stewart: On the Equal Protection Clause?

Ms Rhonda Copelon: We could prevail as well on the grounds that this is race discriminatory and as I will get to in a moment, that it is sex discriminatory.

I would like to say, however, in terms that the Due Process equal protection contrast, this is not a case which involves Due Process conclusive presumption analysis because that would import all of the discrimination and all of the deprivation that we are trying to prevent here and it would perpetuate that stigma to say that unwed parenthood or motherhood was relevant at all.

So, we do not reach that stage of individualized determination in this case.

Justice Potter Stewart: may I ask you, do you think it would be unconstitutional for this school district to require that no teacher should be hired who is under 18 years old?

Ms Rhonda Copelon: Your Honor, I think that would present a completely different question.

Justice Potter Stewart: Protection-wise, I think it --

Ms Rhonda Copelon: I do not --

Justice Potter Stewart: I do not see the difference as a part of the Equal Protection Clause?

Ms Rhonda Copelon: Well, number one, age has never been given quite the kind of constitutional scrutiny by this Court.

That classification is based on race and classifications based on sex and classification based on illegitimacy.

Justice Potter Stewart: Neither of which purports to be?

Ms Rhonda Copelon: It purports not to be, but the question is, is it and by looking at if we -- counsel used the term “caught” and what we suggest to the Court is that there was not very much search to catch anyone here and that just as focusing on nurturance and on the woman who is rearing that child, invades the fundamental right to keep that child.

So, it determines this rule to be a sex-based classification.

Justice William H. Rehnquist: Ms. Copelon, a minute ago you referred to the scrutiny given by this Court in cases involving sex, what scrutiny do you conceive that to be?

Ms Rhonda Copelon: I do not think it is clear yet, Mr. Justice Rehnquist.

I think that it is certainly greater than the scrutiny given to age classifications.

I think that Mr. Justice Blackmun’s words in Stanton clearly put the sex basis on a sex classification and require a heightened scrutiny.

In a case where it was required we urge upon this Court, it should given suspect status, but we do not think with the constellation of fundamental rights and protected interests that are involved here, that we need urge upon this Court that sex be given suspect status in this case.

To look at the rule and why it is sex-based, in part it is common sense.

Unwed parent means, commonly, unwed mother.

The decisions of this Court, the cases that have come before this Court illustrate that, historically and legally, it means unwed mother.

Peter Stanley had to come all the way here to be recognized as a parent under the law of Illinois.

Sereta Gomez had to come all the way here to have her father’s duty to support her be recognized and fundamentally, illegitimacy means legal fatherlessness.

If the father legitimates the child, the child is no longer, under law, illegitimate.

Mr. Petty meant it too.

He tried to use the term “unwed parent.”

It sounds better, but he could not stick to it.

He admitted it at the hearing that his instruction to Ms. McCorpel who implemented the policy was that she should exclude unwed mothers. He admitted at the hearing he knew that something more would have to be done to find unwed fathers because women were so obvious, but he did not give her any instructions to investigate unwed fathers.

And finally, she did not investigate the one male in her employee.

Why, because she said he was married, but Mr. Petty makes clear that marriage does not cure the disability.

Any pretense to neutrality is, therefore, removed by the fact that his rule focuses on the nurturing parent.

Chief Justice Warren E. Burger: Correcting that statement about Mr. Petty’s view of the matter to some other case that is not yet here that is that it is over broad in that respect?

Ms Rhonda Copelon: I am not sure I understand your question.

It seems to me that the rule is under-inclusive because it does not reach the unwed father and it is --

Chief Justice Warren E. Burger: Did someone hear or claim that either of these teachers, any of the respondents, subsequently married the father of the child.

That is not in --

Ms Rhonda Copelon: Mr. Chief Justice, I do not know whether Mrs. Peacock married the father of the child. Fundamentally, that is irrelevant.

In terms of the --

Chief Justice Warren E. Burger: I believe she was not clear enough as to what would happen in that kind of a case?

Ms Rhonda Copelon: This woman, Mrs. Peacock, or any other woman who is married and has a child at home certainly negates any possibility to rationality of this role modeling concept.

It could be 30 years ago that a woman had a child out of wedlock and she could be married, but we do not consider that that is relevant.

We consider that illustrates the irrationality of the role modeling concept that is put forward here, just as the idea that dietitians would have some role modeling capacity when what Mr. Petty said at the hearing was “they handle food.”

Chief Justice Warren E. Burger: We do not have a dietitian here.

We have just teachers.

Ms Rhonda Copelon: That is correct, Your Honor, and we are not trying to litigate this for dietitians.

We are simply saying that when you look at the way this rule developed and how it is articulated and you look at the justifications placed on it, the origin of the rule and its scope has a relevance to this Court’s determination as to its rationality to our clients.

Chief Justice Warren E. Burger: Your time has expired.

Ms Rhonda Copelon: May I have a moment, Your Honor, to sum up?

In sum, what we are saying here is that this rule violates an incredible constellation of fundamental rights and interests recognized by this Court.

It discriminates against Black people only.

It discriminates against women only.

It is a convenient pretext for exclusion from the employment of Black women and women generally.

Moreover, it intrudes upon --

Justice Potter Stewart: Does the record show what percentage of the teachers in the school system were Negroes?

Ms Rhonda Copelon: In our supplemental brief, Mr. Justice Stewart, we submitted figures which show the --

Justice Potter Stewart: And White people?

Ms Rhonda Copelon: -- and a substantial increasing number of White people just in the period that this rule was adapted.

Justice Potter Stewart: There is still a majority of Negroes, is it not?

No?

Ms Rhonda Copelon: No, it is a minority.

I think it is 25% now from what was 75%.

The final thing that this rule does is it illustrates the perversion of Roe versus Wade.

This Court has removed sanctions on premarital sex.

It has rejected the idea that contraception is going to stop that.

It has rejected the idea that not having abortion is going to stop that.

It has rejected the idea that you can force a woman to bear an illegitimate child in order to deter premarital sex.

What we have here in area -- in a time when abortion is available is an inducement to abortion and so, putting it all together, it illustrates that the Black woman, the minority woman, the poor woman can very easily be the first victim of the perversion of the notion of reproductive control.

Chief Justice Warren E. Burger: There is an imbalance in the faculty that violates constitutional principles as laid down by this Court in Mr. Justice Black’s opinion of some years ago, that that could be the subject of independent litigation, could it not?

Ms Rhonda Copelon: Yes, Your Honor, but what we are saying under the Keys’ opinion is --

Chief Justice Warren E. Burger: In this case?

Ms Rhonda Copelon: No, but what we are saying is that that context of whitening the faculty is something which just led this Court to look at neutral rules as presenting a prima facie case of racial discrimination.

Thank you.

Chief Justice Warren E. Burger: Thank you.

Argument of William A. Allain

Mr. William A. Allain: Mr. Chief Justice --

Chief Justice Warren E. Burger: Mr. Allain you have --

Mr. William A. Allain: -- and may it please the Court.

I do not intend to burden the Court probably with that much time, Your Honor, but we would like to say and address ourselves for a few moments to this document and the statistics which have been introduced at this late date and say that the Court really should not consider them for the simple reason there is no showing in the document and no showing in the statistics in a nexus between the rule which we now have under question here and the increase of the White teacher ratio in the school district.

Other statistics would show that also there is a White increase in the student body which is not, of course, before this Court, and therefore, we say to the Court that many variables had entered into this particular thing.

One of them is Title I, as being no longer available in the amount it used to be for teachers and teacher’s aides.

So, we do not think it adds anything to the case whatsoever and should not be used in any determination or decision.

We would say to the Court, and we do not necessarily know whether this is of any import, but Mississippi does have statutes against fornication and adultery and also, counsel said that this rule did not apply as equally to males as it does to females.

Unknown Speaker: Do you disagree flatly with the last counsel as to the existence of a Mississippi fornication statute?

Mr. William A. Allain: Yes, Your Honor, except maybe she was talking about there is a fornication statute.

It may not act on one act of fornication.

It may be cohabitation and that is the way we take issue rather than there is fornication statute in Mississippi.

I think counsel would acknowledge that.

Justice John Paul Stevens: Being the parent of an illegitimate child constitute a violation to that statute?

Mr. William A. Allain: No, Your Honor, it would probably have to take more proof than that, maybe, to bring it about.

We say to the Court that we recognize, and the Court has recognized in several cases, that maybe there is a little more difficulty in ferreting out.

I think as the Chief Justice has said in one case of the natural father, but this Court is also on the record by saying that mere fact that sometimes it is more difficult to find the natural father does not mean that the natural father --

Justice John Paul Stevens: Mr. Attorney General, if you justify the rule entirely on the basis of the role model theory, how can that possibly apply to a man?

Mr. William A. Allain: It could apply to a male once it had been established that a male is --

Justice John Paul Stevens: With the knowledge of the students, that the male was the parent of an illegitimate child?

Mr. William A. Allain: That would be right.

Unknown Speaker: (Inaudible)

Mr. William A. Allain: Well, Your Honor, we are talking really here I guess about not knowledge, but we are talking about whether or not you are going to lie or not.

Now, the male teacher is willing to tell the school district “no, I do not have an illegitimate child or has never been adjudicated so, but we are not here talking in the realms of determining when you have one of a knowledge.

We are talking about then, whether someone desires to lie about it.

Now, we do have in this particular case a falsification of an application and Mr. Chief Justice says --

Chief Justice Warren E. Burger: (Inaudible) of a discharge?

Mr. William A. Allain: That would not, Your Honor, and I was going to say the only reason that nothing probably were done further on that particular issue was because we were in litigation and would not want to be seeming that we were punishing someone who had sued the school district.

We would get another -- maybe another lawsuit about that.

Chief Justice Warren E. Burger: Mr. Justice Stevens’ suggestion if there were a male teacher and a woman teacher on the particular school and in this small community, it became known that they too, the two of them, whether both of them single or married to other people had produced an illegitimate child then you would have a grounds for dismissal of the father and as well as the mother?

Mr. William A. Allain: Right, it would apply across the board and as I say, we --

Justice Thurgood Marshall: The role playing thing, as I understand, the role playing is you are trying to keep girls from having illegitimate children, right?

Mr. William A. Allain: Now, we are trying to keep also men from fathering illegitimate children.

Justice Thurgood Marshall: Was that in the record?

Mr. William A. Allain: Well, I think it is in the record that illegitimacy and as in this record, except in artificial insemination somebody else have got to be a partner.

We had gone in and we think --

Justice Thurgood Marshall: I just want to know why the father gets into this role playing?

Mr. William A. Allain: Well, I think if you had a --

Justice Thurgood Marshall: Are you saying that “get it over with”?

Mr. William A. Allain: I think if you had a known fact that a father had a child out of wedlock, this would have the same adverse example as it would, the woman who had out of wedlock --

Justice Thurgood Marshall: On the board?

Mr. William A. Allain: He would have it I think on the board, then maybe also on the girls.

I think the girls would also look up --

Justice Thurgood Marshall: When you get something to slow down the boys, let me know.[Laughter]

Mr. William A. Allain: Well, maybe age will take that job, but we --[Laughter]I am speaking for myself.

Chief Justice Warren E. Burger: What if the football coach, a man and one of the women school teachers, of whatever race, religion or creed produced a child, does it need any expert testimony or anything in the record to show that that has an impact on all people who know about it or all the children who know about it?

Mr. William A. Allain: No, Your Honor.

We think that is from experience.

We think that the Court has said that and the reason we introduced the expert testimony is that, as this Court is well aware in certain employment cases that all bringing in experts and EEOC is talking about we need validated studies and empirical information, but this Court just recently in the election cases, held I think, set out that examples and appearances mean sometimes as much as reality and that is what we are talking about in this case.

We are talking about a teacher or a coach or what have you, or a principal as being an example, as setting an example in the community, and therefore, that we think and especially under these particular situations we think, now counsel said all we had are the ulterior motives, we are trying to get rid of certain individuals.

There is probably 75% of the teaching staff in Drew, which is I am going outside the record now, Your Honor, which are all females.

So, we are not trying to get rid of females, but the situation that exists there, I think shows that there was a need, a necessity, a pressing need for something to be done by this school district in order to cut down on this rising rate of illegitimacy not only in the school district, but in Sunflower County itself.

Justice Potter Stewart: Does the record show as a rising rate, I thought it just showed static figures?

Mr. William A. Allain: I think that the record shows, as to Sunflower County, it was a rising rate, yes sir, I think maybe one or two points at a time, but the record will either say I was uninformed about the record or I was correct.

Justice John Paul Stevens: Does the record show what happened a year after the rule was adapted?

Mr. William A. Allain: We do not have any figures in the record, Your Honor.

There are some that show that there is a decline now at the time, but I will be going outside the record, Your Honor, in that case.

They are not before the Court.

Thank you.

Chief Justice Warren E. Burger: Thank you counsels.

The --