This case presents the question whether the provision of Mass. Gen. Laws Ann. c. 32, § 26 (3) (a) (1966), that a uniformed state police officer "shall be retired . . . upon his attaining age fifty," denies appellee police officer equal protection of the laws in violation of the Fourteenth Amendment.
The primary function of the Uniformed Branch of the Massachusetts State Police is to protect persons and property and maintain law and order. Specifically, uniformed officers participate in controlling prison and civil disorders, respond to emergencies and natural disasters, patrol highways in marked cruisers, investigate crime, apprehend criminal suspects, and provide backup support for local law enforcement personnel. As the District Court observed, "service in this branch is, or can be, arduous." 376 F. Supp., at 754. "[H]igh versatility is required, with few, if any, backwaters available for the partially superannuated." Ibid. Thus, "even [appellee's] experts concede that there is a general relationship between
These considerations prompt the requirement that uniformed state officers pass a comprehensive physical examination biennially until age 40. After that, until mandatory retirement at age 50, uniformed officers must pass annually a more rigorous examination, including an electrocardiogram and tests for gastro-intestinal bleeding. Appellee Murgia had passed such an examination four months before he was retired, and there is no dispute that, when he retired, his excellent physical and mental health still rendered him capable of performing the duties of a uniformed officer.
The record includes the testimony of three physicians: that of the State Police Surgeon, who testified to the physiological and psychological demands involved in the performance of uniformed police functions; that of an associate professor of medicine, who testified generally to the relationship between aging and the ability to perform under stress; and that of a surgeon, who also testified to aging and the ability safely to perform police functions. The testimony clearly established that the risk of physical failure, particularly in the cardiovascular system, increases with age, and that the number of individuals in a given age group incapable of performing stress functions increases with the age of the group. App. 77-78, 174-176. The testimony also recognized that particular individuals over 50 could be capable of safely performing the functions of uniformed officers. The associate professor of medicine, who was a witness for the appellee, further testified that evaluating the risk of cardiovascular failure in a given individual would require a number of detailed studies. Id., at 77-78.
In assessing appellee's equal protection claim, the District Court found it unnecessary to apply a strict-scrutiny test, see Shapiro v. Thompson, 394 U.S. 618 (1969), for
We need state only briefly our reasons for agreeing that strict scrutiny is not the proper test for determining whether the mandatory retirement provision denies appellee equal protection. San Antonio School District v. Rodriguez, 411 U.S. 1, 16 (1973), reaffirmed that equal protection analysis requires strict scrutiny of a legislative classification only when the classification impermissibly interferes with the exercise of a fundamental right
This Court's decisions give no support to the proposition that a right of governmental employment per se is fundamental. See San Antonio School District v. Rodriguez, supra; Lindsey v. Normet, 405 U.S. 56, 73 (1972); Dandridge v. Williams, supra, at 485. Accordingly, we have expressly stated that a standard less than strict scrutiny "has consistently been applied to state legislation restricting the availability of employment opportunities." Ibid.
Nor does the class of uniformed state police officers over 50 constitute a suspect class for purposes of equal protection analysis. Rodriguez, supra, at 28, observed that a suspect class is one "saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process." While the treatment of the aged in this Nation has not been wholly free of discrimination, such persons, unlike, say, those who have been discriminated against on the basis of race or national origin, have not experienced a "history of purposeful unequal treatment" or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities. The class subject to the compulsory retirement feature of the Massachusetts statute consists of uniformed state police officers over the age of 50. It cannot be said to discriminate only against the elderly. Rather, it draws the line at a certain age in middle life. But even old age does not define a "discrete and insular" group, United States v. Carolene Products Co., 304 U.S. 144, 152-153, n. 4 (1938), in need of "extraordinary protection from the majoritarian political process." Instead, it marks a stage that each of us will reach if we live out
Under the circumstances, it is unnecessary to subject the State's resolution of competing interests in this case to the degree of critical examination that our cases under the Equal Protection Clause recently have characterized as "strict judicial scrutiny."
We turn then to examine this state classification under the rational-basis standard. This inquiry employs a relatively relaxed standard reflecting the Court's awareness that the drawing of lines that create distinctions is peculiarly a legislative task and an unavoidable one. Perfection in making the necessary classifications is neither possible nor necessary. Dandridge v. Williams, supra, at 485. Such action by a legislature is presumed to be valid.
In this case, the Massachusetts statute clearly meets the requirements of the Equal Protection Clause, for the State's classification rationally furthers the purpose identified by the State:
That the State chooses not to determine fitness more precisely through individualized testing after age 50 is not to say that the objective of assuring physical fitness is not rationally furthered by a maximum-age limitation. It is only to say that with regard to the interest of all concerned, the State perhaps has not chosen the best means to accomplish this purpose.
We do not make light of the substantial economic and psychological effects premature and compulsory retirement can have on an individual; nor do we denigrate the ability of elderly citizens to continue to contribute to society. The problems of retirement have been well documented
The judgment is reversed.
MR. JUSTICE STEVENS took no part in the consideration or decision of this case.
MR. JUSTICE MARSHALL, dissenting.
Today the Court holds that it is permissible for the Commonwealth of Massachusetts to declare that members of its state police force who have been proved medically fit for service are nonetheless legislatively unfit to be policemen and must be terminated—involuntarily "retired" —because they have reached the age of 50. Although we have called the right to work "of the very essence of the personal freedom and opportunity that it was the purpose of the [Fourteenth] Amendment to secure," Truax v. Raich, 239 U.S. 33, 41 (1915), the Court finds that the right to work is not a fundamental right. And, while agreeing that "the treatment of the aged in this Nation has not been wholly free of discrimination," ante, at 313, the Court holds that the elderly are not a
Although there are signs that its grasp on the law is weakening, the rigid two-tier model still holds sway as the Court's articulated description of the equal protection test. Again, I must object to its perpetuation. The model's two fixed modes of analysis, strict scrutiny and mere rationality, simply do not describe the inquiry the Court has undertaken—or should undertake—in equal protection cases. Rather, the inquiry has been much more sophisticated and the Court should admit as much. It has focused upon the character of the classification in question, the relative importance to individuals in the class discriminated against of the governmental benefits that they do not receive, and the state interests asserted in support of the classification. Marshall v. United States, 414 U.S. 417, 432-433 (1974) (MARSHALL, J., dissenting); San Antonio School District v. Rodriguez, 411 U.S. 1, 98-110 (1973) (MARSHALL, J., dissenting); Richardson v. Belcher, 404 U.S. 78, 90-91 (1971) (MARSHALL, J., dissenting); Dandridge v. Williams, 397 U.S. 471, 519-530 (1970) (MARSHALL, J., dissenting). See also City of Charlotte v. Firefighters, 426 U.S. 283, 286 (1976); Memorial Hospital v. Maricopa County, 415 U.S. 250, 253-254 (1974); Dunn v. Blumstein, 405 U.S. 330, 335 (1972); Kramer v. Union School Dist., 395 U.S. 621, 626 (1969); Williams v. Rhodes, 393 U.S. 23, 30 (1968).
Although the Court outwardly adheres to the two-tier model, it has apparently lost interest in recognizing further
But however understandable the Court's hesitancy to invoke strict scrutiny, all remaining legislation should not drop into the bottom tier, and be measured by the mere rationality test. For that test, too, when applied as articulated, leaves little doubt about the outcome; the challenged legislation is always upheld. See New
While the Court's traditional articulation of the rational-basis test does suggest just such an abdication, happily the Court's deeds have not matched its words. Time and again, met with cases touching upon the prized rights and burdened classes of our society, the Court has acted only after a reasonably probing look at the legislative goals and means, and at the significance of the personal rights and interests invaded. Stanton v. Stanton, 421 U.S. 7 (1975); Weinberger v. Wiesenfeld, 420 U.S. 636 (1975); United States Dept. of Agriculture v. Moreno, 413 U.S. 528 (1973); Frontiero v. Richardson, 411 U. S., at 691 (POWELL, J., concurring in judgment); James v. Strange, 407 U.S. 128 (1972); Weber v. Aetna Casualty & Surety Co., 406 U.S. 164 (1972); Eisenstadt v. Baird, 405 U.S. 438 (1972); Reed v. Reed, 404 U.S. 71 (1971). See San Antonio School District v. Rodriguez, supra, at 98-110 (MARSHALL, J., dissenting).
But there are problems with deciding cases based on factors not encompassed by the applicable standards. First, the approach is rudderless, affording no notice to interested parties of the standards governing particular cases and giving no firm guidance to judges who, as a consequence, must assess the constitutionality of legislation before them on an ad hoc basis. Second, and not unrelatedly, the approach is unpredictable and requires holding this Court to standards it has never publicly adopted. Thus, the approach presents the danger that, as I suggest has happened here, relevant factors will be misapplied or ignored. All interests not "fundamental" and all classes not "suspect" are not the same; and it is time for the Court to drop the pretense that, for purposes of the Equal Protection Clause, they are.
The danger of the Court's verbal adherence to the rigid two-tier test, despite its effective repudiation of that test in the cases, is demonstrated by its efforts here. There is simply no reason why a statute that tells able-bodied police officers, ready and willing to work, that they no longer have the right to earn a living in their chosen profession merely because they are 50 years old should be judged by the same minimal standards of rationality that we use to test economic legislation that discriminates against business interests. See New Orleans v. Dukes, supra; Williamson v. Lee Optical Co., 348 U.S. 483 (1955). Yet, the Court today not only invokes the minimal level of scrutiny, it wrongly adheres to it. Analysis
Whether "fundamental" or not, " `the right of the individual. . . to engage in any of the common occupations of life' " has been repeatedly recognized by this Court as falling within the concept of liberty guaranteed by the Fourteenth Amendment. Board of Regents v. Roth, 408 U.S. 564, 572 (1972), quoting Meyer v. Nebraska, 262 U.S. 390, 399 (1923). As long ago as Butchers' Union Co. v. Crescent City Co., 111 U.S. 746 (1884), Mr. Justice Bradley wrote that this right "is an inalienable right; it was formulated as such under the phrase `pursuit of happiness' in the Declaration of Independence. . . . This right is a large ingredient in the civil liberty of the citizen." Id., at 762 (concurring opinion). And in Smith v. Texas, 233 U.S. 630 (1914), in invalidating a law that criminally penalized anyone who served as a freight train conductor without having previously served as a brakeman, and that thereby excluded numerous equally qualified employees from that position, the Court recognized that "all men are entitled to the equal protection of the law in their right to work for the support of themselves and families." Id., at 641.
See also Arnett v. Kennedy, 416 U.S. 134 (1974); Perry v. Sindermann, 408 U.S. 593 (1972); Bell v. Burson, 402 U.S. 535
While depriving any government employee of his job is a significant deprivation, it is particularly burdensome when the person deprived is an older citizen. Once terminated, the elderly cannot readily find alternative employment. The lack of work is not only economically damaging, but emotionally and physically draining. Deprived of his status in the community and of the opportunity for meaningful activity, fearful of becoming dependent on others for his support, and lonely in his new-found isolation, the involuntarily retired person is susceptible to physical and emotional ailments as a direct consequence of his enforced idleness. Ample clinical evidence supports the conclusion that mandatory retirement poses a direct threat to the health and life expectancy of the retired person,
Not only are the elderly denied important benefits when they are terminated on the basis of age, but the classification of older workers is itself one that merits judicial attention. Whether older workers constitute a "suspect" class or not, it cannot be disputed that they constitute a class subject to repeated and arbitrary discrimination in employment. See United States Department of Labor, The Older American Worker: Age Discrimination in Employment (1965); M. Barron, The Aging American 55-68 (1961). As Congress found in passing the Age Discrimination in Employment Act of 1967:
See also ante, at 317 n. 11.
Turning, then, to appellants' arguments, I agree that the purpose of the mandatory retirement law is legitimate, and indeed compelling. The Commonwealth has every reason to assure that its state police officers are of sufficient physical strength and health to perform their jobs. In my view, however, the means chosen, the forced retirement of officers at age 50, is so overinclusive that it must fall.
All potential officers must pass a rigorous physical examination. Until age 40, this same examination must be passed every two years—when the officer re-enlists—and, after age 40, every year. Appellants have conceded that "[w]hen a member passes his re-enlistment or annual physical, he is found to be qualified to perform all of
Accordingly, I conclude that the Commonwealth's mandatory retirement law cannot stand when measured against the significant deprivation the Commonwealth's action works upon the terminated employees. I would affirm the judgment of the District Court.
Briefs of amici curiae urging affirmance were filed by James A. Lanigan, Alfred Miller, and Stephen L. Solomon for the American Association of Retired Persons et al.; by Howard Eglit, Jonathan A. Weiss, and Melvin Wulf for Legal Services for the Elderly Poor et al.; by Thomas K. Gilhool and Edwin D. Wolf for the Older and Middle Age Worker Ombudsman Pilot Project of United Communities of Southeastern Philadelphia et al.; by James J. McNamara for the American Medical Association; and by Melvin S. Louison for Lieutenant Lawrence Carter et al.
"Whenever the governor shall deem it necessary to provide more effectively for the protection of persons and property and for the maintenance of law and order in the commonwealth, he may authorize the commissioner to make additional appointments to the division of state police, together with such other employees as the governor may deem necessary for the proper administration thereof. . . . Said additional officers shall have and exercise within the commonwealth all the powers of constables, except the service of civil process, and of police officers and watchmen. . . . No person who has not reached his nineteenth birthday nor any person who has passed his thirtieth birthday shall be enlisted for the first time as an officer of the division of state police, except that said maximum age qualification shall not apply in the case of the enlistment of any woman as such an officer."
In pertinent part c. 32, § 26 (3), provides:
"(a) . . . Any . . . officer appointed under section nine A of chapter twenty-two . . . who has performed service in the division of state police in the department of public safety for not less than twenty years, shall be retired by the state board of retirement upon his attaining age fifty or upon the expiration of such twenty years, whichever last occurs."
"(b) Any . . . officer . . . who has performed service . . . for not less than twenty years and who has not attained . . . age fifty in the case of an officer appointed under the said section nine A, shall be retired by the state board of retirement in case the rating board, after an examination of such officer or inspector by a registered physician appointed by it, shall report in writing to the state board of retirement that he is physically or mentally incapacitated for the performance of duty and that such incapacity is likely to be permanent."
Since § 9A requires that new enlistees in the Uniformed Branch be no more than 30 years of age, few retirements are delayed past 50 until the expiration of 20 years' service.
The question presented in this case was summarily treated in Cannon v. Guste, 423 U.S. 918 (1975), aff'g No. 74-3211 (May 6, 1975, ED La.); Weisbrod v. Lynn, 420 U.S. 940 (1975), aff'g 383 F.Supp. 933 (DC 1974); McIlvaine v. Pennsylvania, 415 U.S. 986 (1974), dismissing appeal from 454 Pa. 129, 309 A.2d 801 (1973). Our cursory consideration in those cases does not, of course, foreclose this opportunity to consider more fully that question. See, e. g., Edelman v. Jordan, 415 U.S. 651, 670-671 (1974).
This evidence presents no reason to assume that testing suddenly loses its predictive ability after age 50. The only relevant studies presented are contrary to appellants' assumption. These studies support the conclusion that airline pilots should be terminated at age 60 because after that age medical examinations lose their predictive ability. See Air Line Pilots Assn., Int'l v. Quesada, 276 F.2d 892 (CA2 1960).
The suggestion that age 50 is not the critical point for predictive ability is also supported by the national experience. Appellee has produced a study of the laws of the 50 States that shows that Massachusetts' age-50 retirement law prescribes the earliest retirement age in the Nation, and that no other State requires its state police to retire before age 55. Brief for Appellee 37 n. 14.
In short, I refuse to hypothesize that testing after age 50 loses its predictive ability when the appellants have introduced absolutely nothing that supports this position.