(dissenting in part, concurring in part).
I respectfully dissent from the part of the majority opinion which strikes down the regulation pertaining to maternity leave prior to delivery.
It is my opinion that the pre-delivery part of the rule of the Cleveland Board of Education under attack on this appeal is a permissible and reasonable exercise of the discretion vested in the board in the administration of the school system. I see no violation of the rights of teachers under the Equal Protection Clause presented by the facts and circumstances of this case.
“Judicial interposition in the operation of the public school system of the nation raises problems requiring care and restraint. . . .
“By and large, public education in our nation is committed to the control of state and local authorities. Courts do not and cannot intervene in the resoluion of conflicts which arise in the daily operation of school systems and which do not directly and sharply implicate basic constitutional values.” Epperson v. Arkansas (1968), 393 U. S. 97, 104, 89 S. Ct. 266, 270, 21 L. Ed. 2d 228. (Footnote omitted.)
The capabilities of its teachers and the maintenance of sound educational environment are matters of legitimate concern to the board of education. The evidence presented to the district court shows that about 225 out of the more than 5800 teachers employed by the board in the Cleveland school system are on maternity leave at any given time and that approximately 1900 teachers are women of child bearing age. Expert testimony established that every pregnancy impairs to some degree the ability to teach and supervise children. Pregnancy limits the capacity of the teacher to engage in normal physical activity. Mobility *13is reduced. A pregnant teacher is subjected to an increased risk of unexpected incapacitation. Such impairment and risk increase during the later months of pregnancy. There is no question that the medical condition of a pregnant teacher will require that she discontinue teaching at some point during the course of the pregnancy.
Appellants urge that the determination of this point of time should be made on an individual basis, relying on the thirty day notice requirement as ample to meet the objectives of the board. The record in this case convinces me that there is no assurance that an individualized decision in all cases can be made thirty days prior to the time that medical necessity may require that a teacher discontinue her classroom duties. To impose upon the school system the obligation of examining each teacher individually throughout the course of her pregnancy to insure that she is capable of carrying out the manifold and demanding duties of her profession would constitute a burden more onerous than mere administrative inconvenience.
In my view it is not the prerogative of this court to determine whether a better regulation could be promulgated or whether a shorter period of time than the end of four months of pregnancy should be prescribed. We do not sit as a super board of education. Our concern is whether the regulation creates an arbitrary or unreasonable classification wholly unrelated to the objectives sought to be advanced by the board of education in adopting it. In my opinion, we should not strike down the regulation because it “may be unwise, improvident, or out of harmony with a particular school of thought.” See Dandridge v. Williams, 397 U. S. 471, 484, 90 S. Ct. 1153, 1161, 25 L. Ed. 2d 491.
Nor do I agree that the regulation should be invalidated because it applies only to pregnancy and not to other conditions and diseases that incapacitate teachers, both male and female, from classroom duties. It is true that, during the course of a school year, a certain number of teachers will experience illnesses or accidents requiring leaves of absence. The wide range of these incapacitating *14conditions is such that the board of education has seen fit to deal with them on an individual basis. Pregnancy, on the other hand, is a condition of predictable duration and symptoms involving a substantial number of teachers every year. In my opinion a classification dealing with this problem is not so arbitrary or unreasonable as to violate the Equal Protection Clause.
It is not every classification that amounts to a denial of equal protection.
‘ ‘ The distinctions drawn by a challenged statute must bear some rational relationship to a legitimate state end and will be set aside as violative of the Equal Protection Clause only if based on reasons totally unrelated to the pursuit of that goal. . . . [Classifications will be set aside only if no grounds can be conceived to justify them. With this much discretion, a legislature traditionally has been allowed to take reform 'one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind,’ and a legislature need not run the risk of losing an entire remedial scheme simply because it failed ... to cover every evil that might conceivably have been attacked.” McDonald v. Board of Election Comm’rs (1969), 394 U. S. 802, 809, 89 S. Ct. 1404, 1408, 22 L, Ed. 2d 739. (Citations omitted.)
Upon the evidence presented in the District Court, Judge Connell found that the requirement of maternity leave prior to delivery gives the school system the best assurance that sudden disruption of the classroom program due to unforeseen complications in the condition of a teacher will be minimized. 326 P. Supp. at 1213, 32 Ohio Mise. 193. I agree with this conclusion. In my view it is not “clearly erroneous..” Rule 52(a), Fed. R. Civ. P.
With respect to the three months post-delivery waiting period before resuming teaching, I agree with the majority opinion. No evidence was introduced in the district court and no reasons offered to this court as to how this requirement is related rationally to any legitimate objective of the board.
I would affirm in part and reverse in part.