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FREUND v. FLORIO

June 3, 1992

ANNA FREUND, RUTH ARNOLD, ALICE LAUGHLIN, JOSEPH PIKUS, KATHRYN A. SMITH, KENNETH BENSON, EVELYN BORGEN, DONALD MINTZ, MEYER SCHREIBER, ALBERT C. SHAW, H. WILLIARD STERN, LILYAN B. WRIGHT, ROBERT W. HARPER, Plaintiffs,
v.
JAMES J. FLORIO, EDWARD D. GOLDBERG, HERMAN JAMES, WILLIAM MAXWELL, ELSA GOMEZ, IRVIN REID, ROBERT A. SCOTT, VERA KING FARRIS, GEORGE PRUITT, HARLD W. EICKHOFF, ARNOLD SPEERT, Defendants.



The opinion of the court was delivered by: H. LEE SAROKIN

 Sarokin, District Judge

 This action challenges the constitutionality of a statute which permits mandatory retirement of tenured faculty in state institutions at age 70. For the reasons hereinafter expressed, such legislation must be sustained if there is a rational basis for its enactment. However, many of the reasons proffered to justify such mandatory retirement would appear to support any act of age discrimination. Making way for the young, planning for the future, creating greater diversity, injecting new energy, reducing costs, eliminating the potentially ineffective, and avoiding the difficulty and embarrassment of identifying them, could be offered as justifications for terminating the aged in almost any situation, irrespective of their actual skills, performance, and ability to continue in employment.

 Despite the court's recognition that the rational bases offered here are the same as those often used to justify acts of age discrimination, the court is compelled to conclude that the rational basis test applies in this matter and that the mandatory retirement statute satisfies this undemanding standard.

 As a result, the state's colleges may be deprived of some of their greatest teachers; but the state has the right to do so, in the hope that they will be replaced, if not now, eventually, by teachers of equal or greater competence and diversity.

 Background

 This action was commenced with the filing of a complaint on February 28, 1991 by the plaintiffs, thirteen previously and currently tenured faculty members at various New Jersey State Colleges. Named as defendants were the State of New Jersey, James J. Florio, the New Jersey Department of Higher Education, the Chancellor of Higher Education, New Jersey's nine State Colleges and their presidents.

 Plaintiffs maintain that N.J.S.A. 10:5-2.2, which grants institutions of higher education within New Jersey the discretion to retire tenured faculty at age 70, is unconstitutional, constituting discrimination on the basis of age. Plaintiffs allege that defendants have violated the equal protection and due process clauses of the Fourteenth Amendment of the United States Constitution and parallel provisions of the New Jersey Constitution, Article I, Paragraphs 1, 5 & 19. Plaintiffs seek a declaratory judgment that N.J.S.A. 10:5-2.2 is unconstitutional, an injunction preventing defendants from requiring plaintiffs to retire pursuant to the statute, compensatory and punitive damages, and attorney's fees.

 Defendants have now moved for judgment on the pleadings on the grounds that, under the facts alleged, N.J.S.A. 10:5-2.2 does not violate the equal protection and due process provisions of either the U.S. Constitution or the New Jersey Constitution. Additionally, defendants contend that this action is barred in its entirety by the grant of immunity to states in the Eleventh Amendment of the U.S. Constitution.

 Claims under the United States Constitution

 N.J.S.A. 10:5-2.2 ("the Faculty Retirement Act") states that:

 
Notwithstanding the provisions of section 1 of P.L.1938, c. 295 (C.10:3-1) and section 8 of P.L.1962, c. 37 (C.10:5-2.1), an employee who has attained 70 years of age who is serving under a contract of tenure or similar arrangement providing for tenure at a public or private institution of higher education may, at the option of the institution, be required to retire. *fn1"

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