Drew Municipal Separate School District v. Andrews Motion for Leave to File Brief Amici Curiae and Brief Amici Curiae

    In The
SUPREME COURT OF THE UNITED STATES 

October Term, 197/- 
NO. 74-1318

DREW MUNICIPAL SEPARATE SCHOOL 
DISTRICT, ET AL.

Petitioners,
v.

KATIE MAE ANDREWS, ET AL.
Respondents.

On Writ of Certiorari to the 
United States Court of Appeals 

for the Fifth Circuit

MOTION FOR LEAVE TO FILE BRIEF 
AMICI CURIAE AND BRIEF AMICI CURIAE 
OF EQUAL RIGHTS ADVOCATES, INC. AND 

AMERICAN CIVIL LIBERTIES UNION

RUTH BADER GINSBURG 
MELVIN L. WULF 
KATHLEEN PERATIS SUSAN C. ROSS 
American Civil 
Liberties Union 
22 E. 40th Street 
New York,
New York 10016

MARY C. DUNLAP 
NANCY L. DAVIS 
JOAN MESSING GRAFF 
WENDY W. WILLIAMS 

Equal Rights 
Advocates, Inc. 
433 Turk Street 
San Francisco, 
California 94102

Attorneys for Amici Curiae



SUBJECT INDEX
PAGE

MOTION FOR LEAVE TO FILE BRIEF
AMICI CURIAE......................... vii
BRIEF AMICI CURIAE................  xiv
INTEREST OF AMICI................  xiv
INTRODUCTION AND SUMMARY OF
ARGUMENT ..............................  1
ARGUMENT

I. Petitioners' Policy Represents 
A Severe Historical Retro­
gression, Against The Principle 
Of Ending Sex Discrimination 
Under L a w ..................... 5
A. The History of Anti- 

Illegitimacy Measures 
Is Thematically Linked 
To Discrimination 
Against Women ...........  5

B. Petitioners' Exclusion 
Of Unmarried Mothers 
From Employment Menaces 
The Achievement Of 
Equal Opportunity By Women.................. 2 4

II. Petitioners' Policy Discrimi­
nates Against Females In 
Violation Of The Constitutional 
Guarantee Of Equal Protection................  27



TABLE OF AUTHORITIES CITED
CASES

Cleveland Board of Education v.
LaFleur, 414 U.S. 632 (1974) . . . .  19
Estate of Lund, 26 C.2d 472,
159 P. 2d 643 (1945)........... 28
Frontiero v. Richardson, 411 U.S.
677 (1973)   24,44,45
Nichols v. Sauls' Estate, 165 S.2d
352 (Sup. Ct. Miss. 1964)............  33
Niemotko v. Maryland, 340 U.S. 268 
(1951)................................ 30
Reed v. Reed, 404 U.S. 71 (1971) 41,43,44
Sanders v. Tillman, 245 S.2d 198
(Sup. Ct. Miss. 1971)............. -31,33
Stanley v. Illinois, 405 U.S. 645
(1972).............................. .34
Yick Wo v. Hopkins, 118 U.S. 356 
(1886)............................ . 39

MISCELLANEOUS
C. Atkinson & E. Maleska, The Story of 
Education (1965)........! I ! [ 7 7 21
B. Babcock, A. Freedman, E. Norton 
& S. Ross, Sex Discrimination And 
The Law: Causes and Remedies
(1975)............................  15

iii



19
R. Callahan, An Introduction To 
Education In American Society 
(1956) ..........................
F. Campbell, "Birth Control and 
the Christian Churches", 14(2)
Population Studies 142 (1960) . . .  17
W. Chafe, The American Woman (1972) . 16
F. Cornford, trans., The Republic 
of Plato 144 (1966)................  24
K. Davidson, R. Ginsburg & H. Kay, 
Sex-Based Discrimination (1973) . . .  15
Davis, "Illegitimacy and the Social
Structure", 45 Am.J.Soc. 215
(1939)..............................  13
K. Davis, "Population Policy: Will
Current Programs Suceed?", 158
Science 736 (1967)................  24
D. Dewar, Orphans of The Living:
A Study of Bastardy (1968) ........  6
B. Disraeli, Sybil (1845)..........  7
F. Donovan, The School Ma'am (1938) . 21
W. Elsbree, The American Teacher
(1939)............................  20
C. Foote, R. Levy & F. Sander,
Cases and Materials on Family Law
118 (1966)........................  43
O. Fowler, Perfect Men, Women and 
Children (1878)   12

IV



P. Goubert, "Legitimate Fecundity and 
Infant Mortality In France During The 
Eighteenth Century: A Comparison",
97 Daedalus 593 (Spring 1968) . . . .  8
Hankins, "Illegitimacy: SocialAspects", 7 Encyclopaedia of Social 
Sciences 579-581 (1932) . . . . . . .  16
G. Hardin, ed., Population, Evolution 
and Birth Control (1969) ..........  17
E. Hecker, A Short History of
Women* 1s Rights (1910) ! ! ! 7 . . . .  11
S. Hartley, Illegitimacy (1975) . . .  g
L. Kanowitz, Women and the Law:
The Unfinished Revolution (1969) . . 15

*H. Krause, Illegitimacy: Law and
Social Policy (1971) ..............  34
W. Langer, "Europe's Initial 
Population Explosion", 69 American 
Historical Review 1 (1963) ........  7
J.L. Muret, "Memoire sur 1'etat de la 
population dans le pays de Vaud",
Memoires de la Societe Economique 
de Berne 57 (1766)................  45
National Education Association,
Brief Amicus Curiae to the United 
States Supreme Court, in Cleveland 
Board of Education v. LaFleur,
Sup. Ct. No. 72-777 ..............  19
I. Pierce, Medical and Surgical 
Reporter 614 (1888)..............  18

v



Secretary of the United Nations,
Report: "The Status of the Unmarried
Mother: Law and Practice" 56
(1971)........................  14
R. Stein, "The Economic Status of 
Families Headed By Women", U.S.
Dept, of Labor, Bureau of Labor 
Statistics, Monthly Labor Review 
(December 1970)   25
M. Twain, Letters From The Earth . . 12
United Nations, Document #ST/TA0/
HR/22 (1964)....................  9
U.S. Bureau of the Census, 1
Characteristics of the Population
Table 54 (1970)....................  9,35
U.S. Bureau of the Census, Subject 
Reports: Persons By Family
Characteristics 1 (1970)   35
I. Woody, A History of Women's 
Education In The United States (1966). 21

* * * * * * * * * * *
NOTE: All references to the testimoney
of Superintendent Pettey hereinbelow 
are marked "P.T." (Pettey Transcript); all references to the testimony of 
Mrs. McCorkle hereinbelow are marked 
"Mc.T." (McCorkle Transcript).

vi



In The
SUPREME COURT OF THE UNITED STATES 

October Term, 1974 
No. 74-1318

DREW MUNICIPAL SEPARATE SCHOOL 
DISTRICT, ET AL.

Petitioners,
v.

KATIE MAE ANDREWS, ET AL.
Respondents.

On Writ of Certiorari to the 
United States Court of Appeals 

for the Fifth Circuit

MOTION FOR LEAVE 
TO FILE BRIEF AMICI CURIAE

Equal Rights Advocates, Inc. and the 
American Civil Liberties Union respectfully 
move for leave to file a brief amicus 
curiae in this case. Respondents have con­
sented to the filing of this brief. The 
letter of consent accompanies this motion 
and brief, for filing with the Court. 
Counsel for amici has sought the consent 
of petitioners to the filing of this brief,



by telephonic and written correspondence. 
As of the time of preparation of this 
motion, counsel for petitioners has not 
responded to said requests for consent.

Equal Rights Advocates, Inc. is a 
non-profit, tax-exempt legal and educa­
tional corporation dedicated to promoting 
equal rights of men and women under law. 
Equal Rights Advocates, Inc. devotes sub­
stantial amounts of time, energy and 
resources to advancing the constitutional 
and statutory rights of men and women to 
be free from unlawful sex-based discrim­
ination in employment.

Lawyers for Equal Rights Advocates, 
Inc. have participated in a number of 
cases challenging laws, policies and 
practices that operate to disadvantage 
the female child-bearer, including Gedul- 
dig v. Aiello, __  U.S. ___, 94 S.Ct. 2485

vii i



(1974), which upheld the denial, against a 
fourteenth amendment challenge, of state 
disability benefits to women disabled by 
"normal" childbirth, and Berg v. Richmond
Unified School District, ___ F.2d ___ (9th
Cir. 1975), which affirmed a Title VII 
decision adjudging the school district's 
policies as to maternity leave and accrued 
sick pay to be violative of the Act. Law­
yers for Equal Rights Advocates, Inc. 
served as amicus curiae in Liberty Mutual 
Insurance Co. v. Wetzel, No. 74-1245, now 
pending before this Court, and in Gilbert 
v. General Electric Co., 519 F.2d 661 (4th 
Cir. 1975), also now pending before this 
Court sub nom General Electric Co. v. Gil­
bert .

The American Civil Liberties Union is 
a nationwide, non-partisan organization of 
over 250,000 members dedicated to defend­

IX



ing the rights of all persons to equal 
treatment under the law. Recognizing that 
confinement of women's opportunities is a 
pervasive problem at all levels of society, 
the American Civil Liberties Union has 
established a Women's Rights Project to 
work towards the elimination of gender- 
based discrimination.

Lawyers associated with the American 
Civil Liberties Union Women's Rights 
Project presented the appeal in Reed v.
Reed, 404 U.S. 71 (1971), participated as 
counsel for the appellants and later as 
amicus curiae in Frontiero v. Richardson, 
411 U.S. 677 (1973), represented the 
appellant in Kahn v. Shevin, 416 U.S. 351 
(1974), the appellees in Edwards v. Healy, 
421 U.S. 772 (1975), and Weinberger v. 
Wiesenfeld, 420 U.S. 636 (1975), and the 
petitioners in Struck v. Secretary of

x



Defense, 461 F.2d 1372 (9th Cir. 1971,
1972), cert. granted, 409 U.S. 947, judg­
ment vacated, 409 U.S. 1071 (1972), and 
Turner v. Department of Employment Secur­
ity, ___U.S. ____, 96 S.Ct. 249 (1975),
and acted as amicus curiae in this Court 
in several other gender discrimination 
cases.

The American Civil Liberties Union 
believes that this case poses an issue of 
great significance to the realization of 
full equality between the sexes. It con­
cerns women's right to aspire and achieve 
in accordance with their talents and capac­
ities as individuals, their right not to 
be caged, in lump fashion, by an indurate 
classification that relegates them to 
inferior status in society.

Equal Rights Advocates, Inc. and 
the American Civil Liberties Union seek

xi



to participate in this case as amici
curiae because each organization views 
the achievement of fair and even-handed 
treatment of mothers in public employment 
as basic to the efforts of amici to win 
equality for working women

Equal Rights Advocates, Inc. and 
the American Civil Liberties Union believe 
that the within brief will be of assis­
tance to the Court in resolving the 
crucial issues before it. The brief offers 
an historical analysis of the treatment of 
mothers of "illegitimate" offspring, and 
it discusses the issues raised by peti­
tioners' exclusion of this group from 
employment, insofar as the fourteenth 
amendment's guarantee of equal protection 
to these persons is concerned.

For these reasons, we respectfully 
request leave to file the within brief

xii



amicus curiae.
Respectfully submitted,

Mary C. Dunlap An Attorney for Movants

xi  11



In The
SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974 
No. 74-1318

DREW MUNICIPAL SEPARATE SCHOOL DISTRICT, 
ET AL.,

Petitioners,
v.

KATIE MAE ANDREWS, ET AL.,
Respondents.

On Writ of Certiorari to the United States 
Court of Appeals for the Fifth Circuit

BRIEF AMICI CURIAE

INTEREST OF AMICI 
The interest of amici is set 

forth in the preceding motion for leave 
to file this brief.

xiv



1
INTRODUCTION AND SUMMARY OF ARGUMENT

Amici support the position that the 
policy of petitioners is criss-crossed 
with constitutional defects, any one of 
which should prove fatal to it: it dis­
criminates against Black persons on 
account of race; it infringes grievously 
upon the rights of privacy and procreative 
choice; it arbitrarily deprives persons of 
employment in a fashion causing uncon­
scionable risk and harm to children, in­
cluding economic suffering and personal 
shame; and, it discriminates against 
women on account of sex. Because of the 
gravity and complexity of the sex dis­
crimination issues raised by this case, 
we will focus predominantly upon those 
issues.

For many centuries and across 
diverse cultures, campaigns have been



2
conducted through law to prevent child­
bearing and child-rearing outside socie- 
tally respected relationships. Keeping 
women in their place has frequently been 
a concern of these campaigns, and women 
have historically suffered myriad punish­
ments under these sex-discriminatory 
schemes. The grave problem of employment 
discrimination against women persists.
The policy of petitioners aggravates that 
problem and activates its worst consequence 
poverty. Petitioners' policy excludes 
from employment a group of women whose 
work affords not only a resource to 
society that must be saved from the waste 
of discrimination, but which affords the 
means of economic self-sufficiency to 
these women and their families. (Section I) 

On its face, petitioners' policy 
consists of a prohibition against employ­



3
ment of unwed mothers. Founded upon ex­
pressly sex-discriminatory instructions 
to the personnel agent, rooted in the 
avowed purpose of excluding persons who 
are identifiable by the fact of their 
parenthood as "bad role models", and 
structured in the context of state laws 
that empower male parents to avoid the 
exclusion from employment, the face of 
petitioner's policy plainly contains a 
sex-based classification. (Section II-A).

Under the policy, five females and 
no males have been excluded from employ­
ment by petitioners. Even were facial 
neutrality attributed to the policy, its 
application has been, and is assured by 
its structure to continue to be, sex- 
discriminatory against women. (Section 
II-B).

The sex-discriminatory nature of



4
petitioners' policy offends the equal 
protection clause. The policy finds no 
rational foundation in petitioners' "role 
model" theory, insofar as the policy's 
focus and structure immunize most offen­
ders of the "role model" premise from the 
exclusion from employment. The policy 
bears neither a fair nor a substantial 
relationship to any legitimate aim of 
public school authorities. Additionally, 
in their utilization of female sex as the 
cutting edge of their categorical exclu­
sion from employment, petitioners have 
drawn a line which, for equal protection 
purposes, merits strict scrutiny by this 
Court. (Section II-C).



5
I. PETITIONERS' POLICY REPRE­

SENTS A SEVERE HISTORICAL 
RETROGRESSION, AGAINST THE 
PRINCIPLE OF ENDING SEX 
DISCRIMINATION UNDER LAW.

A. The History of Anti-Ille­
gitimacy Measures Is 
Thematically Linked To 
Discrimination Against 

Women.
The concept of "illegitimacy" has 

varied in its legal dimensions across 
cultures and eras, shaped and reshaped 
by diverse societal, religious and 
economic views of human sexuality and by 
different and changing norms of manhood, 
womanhood and childhood. With this per­
vasive variability, one constant appears: 
where legal and moral authorities have 
punished the offspring of sexual inter­
course occurring outside the bounds of 
approved relationships, those authorities 
have likewise punished the maternal 
biological parents of these children, and



6
vice versa.

A dramatic and appalling example of 
this interaction lies in the experience of 
mothers and children under the English 
Poor Law Amendment Act of 1834, which pur­
portedly sought to prevent false accusations 
of paternity by removing the financial 
responsibilities of putative fathers, 
while in fact sanctioning the mothers of 
"illegitimate" children through severe 
financial penalties. The Act resulted in 
a crystallization of

"... the popular view of the 
day, that it was the woman 
with an illegitimate baby 
who was guilty of succumbing 
to temptation and the man 
was not to be equally blam­
ed. . . it had been decided 
that erring women should 
suffer to the full conse­
quences of a 'fall'". 1/

1/ D. Dewar, Orphans of The Living: A
Study of Bastardy 20-21 (1968).



7
One apparent consequence of the Act 

was infanticide. Around the time of the 
Act's imposition of severe penalties upon 
mothers of illegitimate children, Benjamin 
Disraeli, in his sociologically informed 
novel, Sybil, observed in 1845:

"Infanticide is practiced 
as extensively and as 
legally in England as it 
is on the banks of the 
Ganges...". 2/

Social and economic suffering for the 
mothers and children affected were the 
alternatives to abortion, infanticide and 
the anonymous delivery of infants to

3 /foundling homes in which many died.—

2/ As quoted in W. Langer, "Europe's 
Initial Population Explosion", 69 
American Historical Review 1-17 (1963).
The practice of anonymous abandonment 
of infants was by no means confined to 
"illegitimate" mothers, for "... the 
statistics show that of the thousands 
of children thus abandoned, more than 
half were the offspring of married 
couples." Id. at fn 5/.

3/



8
In eighteenth century rural France

the phenomenon of "illegitimacy" was a
great deal less statistically common than
it was in England, but the socio-economic
situation of the unmarried French mother
was similar; it has been described by at
least one famous demographer as "excep-

4/tional and difficult."— Heavy social, 
legal and moral stigmatization of 
"illegitimacy" in France and in England 
had completely opposite effects upon 
"illegitimacy" rates -- a telling compar­
ison, in the context of petitioners' re­
cited purpose of deterring teenage

4/ P. Goubert, "Legitimate Fecundity and 
Infant Mortality in France During The 
Eighteenth Century: A Comparison",
reprinted at 97 Daedalus 593-594 
(Spring, 1968) (Historical Population 
Stud ies) .



9
"illegitimate" pregnancy — .

Severe punishments including death 
itself have been visited upon mothers 
of "illegitimate" children, motivated and 
justified by— ^vindication of what is 
commonly called "the double standard" of 
sexual morality, under which women must * I

_5/ Superintendent Pettey testified be­
low that " (I)n Drew, we have had in 
the last two years... an alarming 
number of school girl pregnancies...
I think that this is a problem that 
we as school people, responsible for 
the development of children, should 
try to do something about." (P.T.8,
9) .

6/ As of 1964, in countries around the 
region of Togo, the unmarried mother 
"... is often considered as having 
brought shame and dishonour to the 
whole family and as a result, in 
extreme cases, is murdered by her 
brother or her father while no 
punishment or hardly any is imposed 
on the man involved." United Nations, 
Document #ST/TAO/HR/22 at paragraphs 
134-135 (1964). Refer also to note
12/, infra. Death is the penalty for 
"illegitimate" maternity in other 
regions as well. S. Hartley, 
Illegitimacy 12 (1975).



10
remain virginal and uninformed about sex­
ual matters until marriage, obedient and 
ignorant of matters such as contraception 
within marriage, hostile toward divorce 
and infidelity, and generally ashamed of

7 /and displeased about sexual intercourse.—
7/ In 1880, the Reverend William John Knox 

Little summarized many of these aspects 
of woman's place under the double stan­
dard of sexual morality as follows:
"God made himself to be born of a woman 
to sanctify the virtue of endurance; 
loving submission is an attribute of a 
woman; men are logical, but women, lack­
ing this quality, have an intricacy of 
thought. There are those who think 
women can be taught logic; this is a 
mistake. They can never by any power 
of education arrive at the same mental 
status as that enjoyed by men, but they 
have a quickness of apprehension, which 
is usually called leaping at conclu­
sions, that is astonishing. There, 
then, we have distinctive traits of a 
woman, namely, endurance, loving sub­
mission, and quickness of apprehension. 
Wifehood is the crowning glory of a 
woman. In it she is bound for all time. 
To her husband she owes the duty of 
unqualified obedience. There is no 
crime which a man can commit which 
justifies his wife in leaving him or 
in applying for that monstrous thing, 
divorce, (continued on page 11)



11
Under this "double standard", men are 
expected to be sexual teachers of their 
virginal wives, and their sexual experi- * I
7/ (Con't)

It is her duty to subject herself to 
him always, and no crime that he can 
commit can justify her lack of obedience. 
If he be a bad or wicked man, she may 
gently remonstrate with him, but refuse 
him never. Let divorce be anathema; 
curse it! curse this accursed thing, 
divorce; curse it ! curse it! Think of 
the blessedness of having children. I 
am the father of many children and there 
have been those who have ventured to 
pity me. 'Keep your pity for yourself',
I have replied, 'they never cost me a 
single pang' . In this matter let women 
exercise that endurance and loving sub­
mission which, with intricacy of thought, 
are their only characteristics." Re­
printed in E. Hecker, A Short History 
of Women's Rights 151-152 (Putnam, 1910) .



12
ences outside matrimony are to be con­
doned, because the blame for such ex­
periences is upon the immoral, seducing 
female.—^

To adherents of that double standard 
of human sexual behavior, the mother of 
"illegitimate" offspring symbolizes 
defiance of the moral order: she is a
woman who is publicly known not to be 
virginal and she is unmarried. So she 
has been the bearer of many and diverse 
punishments, often involving deprivations 
upon her child or children, intended to 
make her suffer for her violation of the 
double standard. Even where the child 
is not the direct object of punishment,

8/ O.S. Fowler, Perfect Men, Women and 
Children 180 (1878); Mark Twain,
Letters From The Earth 40 (1962).



13
the child too suffers:

"... illegitimate pregnancy 
is in itself a great blotch 
upon a woman's virtue. Hence, 
in so far as the child iden­
tifies himself with his 
physical mother —  as he is 
bound to do in our culture —  
he will profoundly be affected 
by the knowledge of his ille­
gitimacy ...". 9/

Under the double standard of sexual 
morality, the woman who does not dedicate 
herself solely to child-rearing within 
marriage has been viewed by religious, 
social and legal authorities as a vio­
lator of the basic natural order of

9/ Davis, "Illegitimacy and the Social 
Structure", 45 A m . J . Soc. 215, 228,
231-233 (1939) .



14
humanity.— ^ The double standard is thus 
preserved where women are relegated to 
giving to society, and to receiving from 
it, only those values afforded by marriage 
and family roles; other kinds of exchanges 
of values between woman and society —

10/ "It has often been said that a person 
born out of wedlock, the parents of 
that person (the mother much more so 
than the father), and sometimes the 
entire family of the mother, suffer a 
stigma as the result of the nature of 
the birth. Words as strong as 
'discredit', 'disdain', 'shame', 
'contempt' and 'condemnation' have 
been used to describe that stigma. 
When it exists, it impairs the social 
position, not only of the person born 
out of wedlock, but also the mother, 
thus constituting for her an obstacle 
to the realization of a normal life 
in the community in which she lives." 
Secretary of the United Nations, 
Report: "The Status of the Unmarried
Mother: Law and Practice" 56 (1971) .



15
including education, non-domestic 
employment, voting, office-holding, jury 
service and ownership of property -- have 
been publicly disapproved and legally 
prohibited^

In the eighteenth and nineteenth 
centuries, Western political and relig­
ious authorities battled openly against 
movements for equal rights for women, 
positing that legal freedom of women would 
lead to the demise of marriage and family

11/ A summary of these legal disabilities 
may be found in L. Kanowitz, Women 
and the Law: The Unfinished
Revolution passim (1969). More de­
tailed discussions are presented in 
Davidson, Ginsburg and Kay, Sex-Based 
Discrimination (1974) and in Babcock, 
Freedman, Norton & Ross, Sex 
Discrimination and the Law: Causes
and Remedies (1975).



16
structures.—  For example, the Church of
England campaigned against contraception
as part-and-parcel of its opposition to
12/ W. Chafe, The American Woman 5, 9-11

(1972); Hankins in "Illegitimacy:
Social Aspects", 7 Encyclopaedia of 
Social Sciences 579, 580-81 (1932)
states in part: "Viewing woman as the
chief source of sin Christianity tend­
ed to degrade motherhood, to accentuate 
masculine supremacy and to maintain a 
double standard of morality. It thus 
inflicted an often unbearable cruelty 
upon the unmarried mother and an almost 
certain degradation upon her off-spring. 
In medieval and early modern times the 
mother was often required to confess 
her sin before the congregation in 
both Catholic and Protestant Communi­
ties; and she was sometimes fined, 
sometimes publicly whipped, sometimes 
placed in stocks, and the child was 
neglected and socially ostracized, 
while the father suffered little or 
no penalty."

12/



17
the emancipation of women.—  Those who 
spoke of contraception as a means by which 
the status of men, women and children 
might be improved were scorned and cast

14/out for their radicalism.—  The idea that

13/

13/ "The Church of England was slower to 
face the challenge presented by new 
social conditions -- particularly the 
growing demand for women's emancipa­
tion -- and was more reluctant to 
change its traditional doctrine about 
sex, marriage and the family... Regret 
was expressed at the decline of the 
birth rate among English-speaking 
peoples, especially the upper and 
middle classes, and it was suggested 
that many physical and mental diseases 
might be a direct consequence of the 
use of contraceptives. The bishops 
(footnotes omitted), having denounced 
birth control as "preventive abortion", 
recommended that all contraceptive 
appliances and drugs be prohibited by 
law and their advocates prosecuted."
F. Campbell, "Birth Control and The 
Christian Churches" 14(2) Population 
Stud i e s 142 (1960).

14/ See for example the discussion of
Francis Place's paper of 1822, entitled 
"To The Married of Both Sexes of the 
Working People", at G. Hardin, e.d.. 
Population, Evolution and Birth Control 
192-193 (1969).



18
contraception, abortion and "illegitimate" 
pregnancy directly violated the proper 
role of women and together threatened the 
institution of marriage itself was also 
given voice by medical professionals, in­
spired by religious campaigns against fe-
male social and legal equality.— ^
15/Isaac Pierce, M.D., writing for the

Medical and Surgical Reporter in 1888, 
states in pertinent part:
"Every man knows the horrors of illicit 
love and the suffering of misguided 
though patient and confiding women; no 
man is insensible to the lifelong shame 
of a child thrown upon the world with­
out knowing a father, and no man denies 
the wickedness of criminal abortion. No 
medical man doubts the suffering, and in 
many cases permanent injury, of the 
woman who practices abortion that she 
may shield herself and her destroyer 
from the condemnation of the world...
Let it become generally known that the 
medical profession countenances a pre­
ventive even in a few cases, and there 
is reason to fear this will be stretch­
ed to a license which will work much 
mischief to women who are already ex­
perimenting in this direction, who have 
no reason why they should not fulfill the 
God-given function which makes happy 
homes, and who are now only held in check 
by the judgment of the world."Pp. 614-616.



19
Integral to preservation of the model 

of the adult female as fit only for the 
roles of wife and mother were drastic 
constraints upon her access to the 
educational system in this nation. From 
the inception of the educational system 
of this nation, the opportunities of 
women for employment in that system have 
been profoundly and consciously manipu­
lated because of their female sex, marital 
and maternal status. This pattern of 
manipulation, commencing with total pro­
hibitions against female teachers— ^and 
reaching almost to the present through 
categorical restrictions upon employment

17/of pregnant teachers— , has been con-
16/ R. Callahan, An Introduction to Edu­

cation In American Society 383-384 
(1956) .
Brief Amicus Curiae For The National 
Education Association et al., in Cleve­
land Board of Education v. LaFleur, Sup. 
Ct. No. 72-777 , at p p . 10-14 (1972).

17/



20

sistently intertwined with vindication of
the above-described double standard of
human sexuality and the "woman's place"
model of female rights and responsibilities.

So it was that prior to 1830, the United
States' public teaching profession was

18/composed almost exclusively of men.— ' A 
movement to include women as teachers, 
commencing in the 1830's and culminating in 
a great influx of women into the teaching 
profession during the Civil War, contri­
buted demonstrably to the general enhance­
ment of women's employment opportunities,
and increased public respect for the social

19/contributions of women—  Married women were 
nonetheless widely prohibited from teach­
ing and related occupations until World
18/ W. Elsbree, The American Teacher 199 

(1939).
19/ Id. at 201-207.



21
War I, — 'and many such prohibitory laws
and policies were re-established after 

21/World War I—  and again after World War 
22/II.—  The fundamental basis of these 

exclusions appears to have been an ad­
mixture of sentiments about the morally
damaging and hazardous influence of

23/married women upon students— and sex-

2 0 /

20/ C. Atkinson & E. Maleska, The Story 
of Education 346-347 (1965).

21/ I. Woody, A History of Women's
Education In The United States 509, 
513 (1966).

22/ Id.IITh e employm ent of ma rried wo men
teac her s in the pu b li c schoo 1s of theuni ted State s ha s eve r been a con-
tr oV er sial questio n . Custom has 1o ng
dec reed tha t the scho o 1 ma 1 am be ce1-
iba t e and mo st sch oo 1 board s not on iyre fu s e to emp ioy ma r r ied wornen , bu t
a1 so s tipula te tha t th e empl oyed un -
mar ried t eac her mu st re s ign her po si -
tio n a s soon as sh e becomes a wife . ii
Don ovan , The schoo i Ma ' am 57 (S tok es
Co . 193 8) .



22

based economic notions about male bread­
winning and female domesticity in family
4- 4. 24/structure.—
Like their historical predecessors, 

who first excluded all women, and who 
next excluded married women, from teaching 
and related occupations, petitioners 
in this case claim that their policy is 
designed solely to improve the moral 
stmosphere of schools by removing women 
who have chosen a course of personal con­
duct that is believed to convey a bad
24/ "Opposition to the employment of

married women as teachers is generally 
recognized as stronger in smaller 
rather than larger city systems. In 
smaller communities there still pre­
vails the traditional attitude that 
woman's place is in the home, that 
her husband is expected to provide an 
income for the maintenance of the 
family, and that his prestige depends 
upon his ability to do this." Id 
at 60 .



23
example to students. In this way, 
petitioners' policy joins a long line of 
sex-discriminatory laws, policies and 
practices, purportedly directed at 
manipulating the image of women in 
public education in order to transmit a 
particular moral philosophy to students.



24
B. Petitioners' Exclusion 

Of Unmarried Mothers 
From Employment Menaces 
The Achievement Of 
Equal Opportunity By 
Women.

Proposals to create equal employment 
opportunities without regard to sex are at 
least as ancient as Plato's Republic 
Alongside such philosophical ideas about 
the means to equality, the reality stands 
that:

"...(n)o society has restruc­
tured both the occupational 
system and the domestic 
establishment to the point 
of modifying the old divi­
sion of labor by sex." 27/

As Justice Brennan observed in the plural­
ity opinion in Frontiero v. Richardson,

26/ In Chapter XV, Socrates explains how the 
principle of equality of the sexes should 
work. F. Cornford trans., The Republic of 
Plato, 144-155 (1966).

27/ K. Davis, "Population Policy: Will Current
Programs Succeed?", 158 Science 736-737 
(1967).



25

411 U.S. 677 (1973), sex discrimination 
in employment continues to confront women 
in the United States, in spite of legis­
lative and judicial efforts to overcome 
it.

The notion that women can avoid 
employment discrimination because women 
are free to forego the non-domestic work­
ing world has little validity in this 
country, where a substantial and increas­
ing proportion of the female population 
works outside the home out of sheer econo- 
mic necessity.— ' In families whose sole 
breadwinners are females, the economic 
need to work is obviously most intense.
Yet the very families whose livelihood is

28/ As of 1970, there were 5.6 million families 
headed by women in the United States, of 
which almost one-third had family incomes 
below the poverty line of $3,700 for a 
family of four. R. Stein. "The Economic



26

cut off by petitioners' exclusion of 
mothers of illegitimate" children from 
employment are within this most economi­
cally needy group.

There can be no doubt that access 
to employment free from invidious dis­
crimination has paramount significance in 
the realization of equal employment oppor­
tunity under law. Petitioners' exclusion 
strikes multiple blows against the un­
married mother whose employment provides 
her family's livelihood: the excluded
mother is deprived of economic self- 
sufficiency; she is foreclosed from making 
the contribution to society that her work 
affords; not only is the principle of 
equal opportunity violated, but the means

28/ cont'd.
Status of Families Headed By Women", in U.S. 
Department of Labor, Bureau of Labor Statis­
tics, Monthly Labor Review (Dec. 1970).



27

of making that principle real and of giv­
ing it meaning - employment - is taken 
from her by petitioners, for the rest of 
her life.

II. PETITIONERS' POLICY DISCRIM­
INATES AGAINST FEMALES IN 
VIOLATION OF THE CONSTITU­
TIONAL GUARANTEE OF EQUAL 
PROTECTION.

A. Petitioners' Policy Is
Facially Sex-Discriminatory.

Amici contend that the policy of 
petitioners herein at issue warrants treat­
ment by this Court as a facially sex-dis­
criminatory policy, for four reasons.
First, the actual phrasing of the unwritten 
policy, effectuated in the form of an oral 
instruction to exclude unwed mothers from 
employment, contained that sex-based clas­
sification. Second, regardless of the 
wording of the unwritten policy, it was 
designed and structured in direct reliance 
upon the greater identifiability of



28

mothers than of fathers of "illegiti-
.,29/ children. Third, under Missis-

I l ia  t c ------

sippi law, fathers may take action to 
legitimate their children born out of 
wedlock, thus escaping the exclusion from 
employment, whereas mothers are legally 
incapable of doing so. Fourth, the 
declared purpose and the method of enforce­
ment of petitioners' policy assure that 
it will not reach and exclude male parents 
of "illegitimate" children from school 
district employment.

The record in this action fully sus­
tains the position that petitioners' 
policy was articulated to find and exclude

29/ In 1945, Justice Schauer of the California 
Supreme Court opined that it would seem 
fairer to refer to the offspring of unmarried 
parents as the morally neutral children of 
"illegitimate parents". Estate of Lund,
26 C.2d 472, 159 P.2d 643 (1945). Amici have 
placed the term "illegitimate" in quotation 
marks throughout this Brief because they



29

from employment a class composed solely 
of women. Under cross-examination, Super­
intendent Pettey, who designed the policy 
(P.T. 3), admitted that his instruction 
to Mrs. McCorkle, who was charged with 
investigating and recommending certain 
applicants (P.T. 11), specifically con­
sisted of a prohibition against hiring 
unwed mothers (P.T. 28) and that he gave 
Mrs. McCorkle no instructions whatsoever 
as to exclusion of male applications who 
had fathered "illegitimate" children 
(P.T. 23-24).

Moreover, there is a compelling 
reason to define the face of petitioners' 
policy as consisting of the exclusion of 
unwed mothers from employment. Because

29/ cont'd.

believe that, whatever group the term is
used to modify, it invites injustices.
(See Section I, above.)



30

the policy remained an unwritten one to 
and through the trial below, for this 
Court to define the face of the policy as 
consisting of the phrasing given to it in 
the adversary context of litigation, by 
its defenders, would work a serious mis­
chief. Such a judicial definition of the 
policy's face would encourage governmental 
authorities to propound unwritten policies 
containing overtly discriminatory classi­
fications, and subsequently to give clear 
and neutral-seeming phraseology to such 
policies only if and when challenged under 
the Constitution. Cf. Niemotko v. Mary­
land , 340 U.S. 268 (1951). Even the more 
neutral-seeming phrasings— ^ of the policy

30/ At one juncture Superintendent Pettey stated 
that the policy excluded unwed parents. (PT 
23,24.) At a second juncture he stated that 
the policy excluded parents of illegitimate 
children (P.T. 3, 15.) At a third juncture, 
as discussed hereinabove, Superintendent



31

do not redeem it from its facially sex-dis­
criminatory character.

Both in structure and in the purported 
justification of their policy, petitioners 
have relied directly and impermissibly
upon the greater identifiability of mothers

31/than of fathers.— Indeed, in their

30/ cont'd.
Pettey indicated that he instructed Mrs. 
McCorkle to exclude unwed mothers. (P.T. 
28.)

31/ In the case of Sanders v. Tillman, 245 S .2d 
198 (Sup. Ct. Miss. 1971), which offers the 
most recent definition of "legitimation" 
under Mississippi law, the Supreme Court 
of Mississippi observed in relevant part: 
"It is a simple matter to prove the mater­
nity of an illegitimate child, but is 
infinitely more complex and difficult to 
prove the paterntiy. It is only necessary 
for the father to be present at the laying 
of the keel, not at the launching of the 
ship. The mother must be present at both, 
and it is not at all difficult to prove who 
launched the ship." 245 S.2d at 200.



32

answer to the complaint, petitioners as­
serted that:

"...the regulation bears only 
upon the Plaintiffs' open and 
notorious display of a status 
which is within the province 
of the school district to regu­
late in determining who may 
teach." (Answer, p. 3, 1[XV.)

Generally only mothers would be capable of
such open display of unwed parenthood in
this culture. (It bears emphasis that, as
a matter of record, none of the respondents
in this case was at any time engaged in
any display whatsoever of her status as an
unmarried parent; to the contrary, agents
of petitioners affirmatively searched for
information as to the marital and parental
statuses of the respondents. (P.T. 9, 10,
28, 29; Mc.T. 13, 23, 24, 36, 37, 42)).

Furthermore, to the extent that peti­
tioners are referring to the status of 
being a childbearer out of wedlock, it



33

must be considered that no father is cap­
able of such a status. To the extent that 
the policy refers to the fact of child- 
rearing, it must further be considered
that unwed fathers in this society do not

32 /generally rear their children.— Finally, 
while Mississippi law provides a means by 
which a father may legitimate his offspring 
born out of wedlock, no such legal means 
is available to the mother; the father may
marry the mother and acknowledge the child,

3 3/rendering it legitimate.— Thus it 
emerges that petitioners' policy, insofar 
as it purportedly excludes parents of 
"illegitimate" children from employment, 
operates in a context of state laws that

32/ See footnote 36, infra.

33/ Cf. Sanders v, Tillman, footnote 31, supra; 
see also, Nichols v. Sauls' Estate, 165 S.2d 
352 (Sup. Ct. Miss. 1964).



34

empower fathers, and not mothers, to legit­
imate their children and thus to avoid 
exclusion from employment.— ^

The structure of petitioners' policy 
inexcusably disfavors the female parent 
vis a vis the male parent, even aside from 
its tandem operation with Mississippi's 
laws governing legitimation. This Court 
fully realizes the statistical infrequency 
of the phenomenon of single male persons

35/who are the custodial parents of children-,— ■ 

Within this phenomenon, the father who is 
the custodial parent of his child conceived 
and born out of wedlock must be uncommon

34/ In several states, acknowledgement by the 
father without marriage accomplishes full 
legitimation. H. Krause, Illegitimacy: 
Law and Social Policy 19 (1971).

35/ Cf. Stanley v. Illinois, 405 U.S. 645 
634-656 (1972).



35
3 6/indeed.— ■ Thus, by its reliance upon the

fact of custody to locate parents of 
"illegitimate" children, the structure of 
petitioners' policy excludes fathers by 
means of the virtual impossibility of lo­
cating a male custodial parent of an 
"illegitimate" child.

Petitioners have made two essentially 
irreconcilable contentions about the

36/ Id. As of 1970, 98.67% of all persons under 
18 years old in the United States were 
living either with both parents or with 
a female head of family. U.S. Bureau of 
the Census, 1 Characteristics of the 
Population Table 54, p. 1-278 (1970).
Only 0.2% of all persons under 18 years 
old were living with fathers who were 
single (i.e., never married, separated, 
widowed or divorced). U.S. Bureau of the 
Census, Subject Reports: Persons By
Family Characteristics 1 (1970).



36
relationship between their policy and the 
group of female parents of "illegitimate" 
children excluded thereby. On the one 
hand, petitioners claim that males and 
females who engage in conduct resulting 
in the birth of an "illegitimate" child 
are equally bad role models in instruc­
tional contexts, and that they are there­
fore equally subject to the exclusion from 
employment under that ostensible purpose. 
On the other hand, as the portion of the 
answer quoted above (see text after foot­
note 31) emphasizes, and as District Court 
Judge Ready below observed:

"Defendants argue that when 
a single woman engages in 
premarital sexual relations, 
become pregnant and begets 
an illegitimate child, she 
voluntarily places herself 
in a classification in which 
men are not similarly sit­
uated, and hence, a regula­
tion which treats women 
differently is justified."
371 F.Supp. 26, 36.



37
Thus, there is little doubt that 

petitioners' policy, by its language, 
structure, method of enforcement and 
declared purpose of regulating "open and 
notorious display" of the status of unwed 
motherhood, treats women differently from 
men. In terms of petitioners' own position 
that both parents of "illegitimate" off­
spring are bad role models in instruction 
contexts, the sex-differential compass of 
petitioners' policy, which encircles 
mothers and omits fathers of "illegitimate" 
children, is unjustifiable.



38
B. As Applied, Petitioners'

Policy Discriminates 
Against Women.

The factual record in this action 
underscores the sex-discriminatory fashion 
in which petitioners' policy has been 
administered. The assertion that the 
policy is to be applied to both sexes is 
belied on the face of the record: under
the policy, five females and no males have 
been excluded from school district employ­
ment (M.c.T. 14, 20, 42). Section II-A 
demonstrated that petitioners' policy is 
structured to find and exclude women.
Amici contend that this "women only" result 
should therefore be viewed as the utterly 
predictable consequence of a facially 
discriminatory classification. However, 
even were the policy deemed fair and neu­
tral on its face as to the sex of persons 
to be excluded from employment, the policy



39
represents a classical situation of dis­
criminatory application.

The doctrine that illegal discrim­
ination accomplished by application of a 
neutral-seeming law will not be counte­
nanced is a long-standing element in the 
strength of the United States Constitution. 
Yick Wo v. Hopkins, 118 U.S. 356 (1886).
As in Yick Wo, the Court here is con­
fronted by a record evincing a wholly 
unequal application, as between persons 
similarly situated, of a governmental 
prohibition materially affecting those 
persons' rights. The administration of 
petitioners' policy invites and assures 
continuation of this unequal application, 
in that petitioners have depended frontally 
upon the reality, rooted in biology, state 
law and maternal custody patterns, that 
mothers of "illegitimate" children are



40
usually identifiable and excludable where 
fathers, similarly situated under the 
purported purposes of the policy, are not. 
As in Yick Wo, the petitioners' policy 
here has been unequally and discrimina- 
torily administered, and it must fall.

C. Petitioners' Policy Fails 
Every Test Of Equal Pro­
tection To Be Guaranteed 
To Women In The Context 
Of Public Employment.

Both on its face, and as applied to 
respondents, petitioners' policy achieves 
a discrimination against women as mothers 
of "illegitimate" children. That dis­
crimination is wholly unjustifiable under 
the Fourteenth Amendment guarantee of 
equal protection.

The policy of petitioners does not 
begin to fulfill the rigorous rational 
basis test of equal protection to women 
and men propounded by this Court in



41
Reed v. Reed, 404 U.S. 71 (1971). As 
Chief Justice Burger reasoned therein:

"The Equal Protection Clause... 
does, however, deny to States 
the power to legislate that 
different treatment be accor­
ded to persons placed by a 
statute into different classes 
on the basis of criteria wholly 
unrelated to the objective of 
that statute." !Id. at 76-77.

Petitioners have insisted that the purpose 
of their policy is to exclude from in­
structional employment persons who, by 
virtue of their participation in out-of- 
wedlock sexual intercourse that results in 
"illegitimate" births, are immoral role 
models for students.

Petitioners' policy bears neither a 
fair nor a substantial relationship to 
the policy's declared purpose, as re­
quired for equal protection purposes by 
Reed v. Reed, supra. The criterion of sex 
is wholly unrelated to the policy's pur­



42
pose, which is to exclude bad role models
from employment. Surely the father of
"illegitimate" offspring is as much or

37/as little a bad role model—  as the mother 
yet, because of his sex, he is outside the 
policy's structure and enforcement scheme. 
Thus it appears that petitioners' policy 
bears no demonstrable relationship to the 
declared end.

Wholly aside from its discrimination 
on account of sex, the policy draws a set 
of arbitrary lines among women, each of 
which moves the policy further away from 
the fair and substantial relationship to 
the governmental purpose which, under
37/ For purposes of the discussion of

equal protection herein, amici have 
assumed arguendo that petitioners' 
"role model" theory has some factual 
validity. However, the District 
Court found that it does not, and 
there is substantial evidence in 
the record to support that finding.



43
Reed, the policy must bear. The pregnant
woman who elects abortion, or who abandons

3 8/or even destroys— ' her infant, is outside 
the policy; it is only the woman who elects 
to give birth and to fulfill custodial 
responsibilities to her offspring whom 
petitioners' policy excludes from employ­
ment. By the "bad role model" theory of 
petitioners, all of these women are en-

38/ "It bears emphasis that community 
disapproval and penal sanctions a- 
gainst the mother may intensify the 
mother's desire to protect her 
anonymity and rid herself of the in­
fant. Although the incidence of 
infanticide and abandonment are not 
as great as they were in Puritan 
days... the pressure on the modern 
unmarried mother may result in either 
illegal induced abortion or anonymous 
release of the child for adoption."
C. Foote, R. Levy & F. Sander, Cases 
and Materials On Family Law 
118 (1966).



44
3 9/compassed— ; yet the policy arbitrary 

selects only the last, and excludes her 
from employment. Along with its 
irrational line between men and women, 
these additional lines drawn among women 
by the policy underscore its lack of re­
lationship to the purpose of excluding 
"bad role models" from employment.

The case at bar does not require this 
Court to reach the question, which has at 
least once divided it, as to the proper 
jurisprudential status of the category of 
"sex" for equal protection purposes. Cf. 
Frontiero v. Richardson, 411 U.S. 677 
(1973). Nonetheless, if this Court were 
to view the policy of petitioners as 
somehow capable of surviving the sub­
stantial rationality test of Reed, we urge
39/ The prospective mother of an "ille­

gitimate" child who elects abortion 
is a double sinner, in some views.
See footnote 15/, supra.



45
that the reasons for holding sex to be a 
suspect category, delineated by Justice 
Brennan in Frontiero v. Richardson, 
supra, should be found wholly persuasive 
in the instant case. By the language, 
structure and method of enforcement of 
their policy, petitioners have targeted 
mothers, because of their sex, for ex­
clusion from employment in a fashion that 
makes these women the direct victims of a 
poorly designed and ill-considered form 
of behavioral architecture.— ^ Petitioners'
40/ See Section I. A-B., above. The

exclusion from employment of men in 
order to encourage marriage and pro­
creation would seem to be every bit 
as ill-considered, although at least 
one public minister, J.L. Muret of the 
canton of Vaud, Switzerland, suggested 
it in 1766, saying "... A means which 
would seem very efficient, and be the 
more appropriate since it would en­
hance population more directly, would 
be to bar from all employments the 
non-married men...". J.L. Muret,
Memoire sure 1 ' etat de la population 
dans le pays de Vaud", in Memoires de 
la Societe Economique de Berne 57 (17 6 6).



46
policy represents an unwarranted return to
the times during which stigmatization of
unwed mothers was a tool, along with
forced pregnancy, compulsory marriage and
deprivation of birth control information,
by which women were kept in their legal

41/and societal places—  The policy thus in­
vokes the historical and legal reasons for 
holding that sex, like race, should be 
viewed as a suspect category for equal 
protection purposes. Whatever changes may 
be promised or predicted on the road to 
equal opportunity without regard to sex, 
the stigmatization and exclusion from 
public employment of women who bear 
"illegitimate" children can only be viewed 
as a backward step. Amici urge that this
41/ See fn's 12_ / , 13/ , and 15/ , and

accompanying text, supra.



47
Court find that policy of denying employ­
ment to unwed mothers, while allowing un­
wed fathers to teach, violates the most 
stringent test of equal protection.

CONCLUSION
For all of the foregoing reasons, as 

well as those urged by respondents, the 
decision of the Fifth Circuit Court of 
Appeals should be affirmed.

Respectfully submitted,
/*/MARY C. DUNLAP 

NANCY L. DAVIS 
JOAN MESSING GRAFF 
WENDY W. WILLIAMS 
Equal Rights Advocates, Inc. 
433 Turk Street 
San Francisco, California 

94102
RUTH BADER GINSBURG 
MELVIN L. WULF 
KATHLEEN WILLERT PERATIS 
SUSAN C. ROSS 
American Civil Liberties 

Union
22 East 40th Street 
New York, New York 10016
Attorneys for Amici Curiae.



48
Attorneys for Amici gratefully acknow­
ledge the assistance of Roberta Dempster, 
Julia Jaurigui, Jill Nelson, JoAnn 
Novoson and Kathy Purcell in the pre­
paration of this Brief.



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