(dissenting):
Because I disagree with the conclusion of the majority and because the majority’s decision, if it prevails, may well be relied on to invalidate an aspect of the implementation of the Equal Employment Opportunity Act, Title VII of *400the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e-2(a),11 respectfully dissent.
The majority concludes that the regulation does not discriminate against women as such; it only discriminates between pregnant teachers and other teachers. “It [the regulation] does not apply to women in an area in which they compete with men.” As to the pregnant school teacher, so the argument runs, the discrimination is permissible because of the need to provide continuity of education in the classroom.2 Stated otherwise, a uniform date for the beginning of maternity leave is necessary to avoid disruption in the classroom by a sudden and unpredictable need to replace a teacher who delivers prematurely or who suffers a complication of pregnancy necessitating her absence from the classroom.
While superficially appealing, I am not persuaded by this argument and I think it a disingenuous one to be advanced on this record. The record is clear that there is not a high incidence of risk of premature delivery or complications of pregnancy in the beginning of the third trimester of pregnancy — the date that the regulation establishes as the beginning of maternity leave. And on the facts of this case, one can reasonably infer that continuity of the educational process would have been better preserved had Mrs. Cohen been permitted to complete the semester rather than to subject her students to a new teacher at an illogical and avoidable breaking point in the curriculum.
But there is a more fundamental defect in the majority’s opinion. That the regulation is a discrimination based on sex, I think is self-evident. The inescapable truth is as Chief Judge Brown of the Fifth Circuit has stated, dissenting from denial of a motion for rehear*401ing in banc in Phillips v. Martin-Marietta Corporation, 416 F.2d 1257, 1259 (5 Cir. 1969), a case in which an employer who was willing to hire men with preschool-age children for a certain position but not women was held not to have violated Title VII of the Civil Rights Act of 1964:
The distinguishing factor seems to be motherhood versus fatherhood. The question then arises: Is this sex-related? To the simple query the answer is just as simple: Nobody — and this includes Judges, Solomonic or life tenured — has yet seen a male mother. A mother, to oversimplify the simplest biology, must then be a woman.
Chief Judge Brown’s analysis was echoed by Judge Wisdom, also in dissent in Schattman v. Texas Employment Commission, 459 F.2d 32, 42 (5 Cir. 1972), a case asserting the validity of a Texas regulation requiring a pregnant state employee to begin maternity leave not later than two months before her predicted delivery date: “Female employees are the only employees . . . who become pregnant; it follows that they are provisionally dismissed from work on account of their sex . . . .”
I need not concern myself with the applicable test to discriminate validly on the basis of sex — whether “rational relationship to a state objective,” Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225 (1971); Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970), or a compelling state interest, Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969) — because under either, I think the regulation denies equal protection. The record is literally devoid of any reason, medical or administrative, why a pregnant teacher must accept an enforced leave by the end of the fifth month of pregnancy if she and her doctor conclude that she can perform her duties beyond that date. Of course her employer is entitled to reasonable notice of when the teacher and her doctor conclude her leave should begin, so as to enable the employer to provide an adequate substitute, but it would seem that in most instances notice of not more than thirty days would be ample for that purpose. If I put aside instances where a teacher, male or female, suffers a sudden illness or the need for emergency surgery, and where presumably the teacher has little or no notice of impending prolonged absence, I cannot find in the record, nor can I imagine, any justification for requiring greater certainty as to the effective leave date of a pregnant teacher than of any other teacher, male or female, who may be absent for a prolonged period as a result of elective surgical procedure.
To give an example of my last statement, prostatitis is peculiarly a male disease and in this sense sex related. A prostatectomy which may be required as a result of prostatitis or other chronic disease of the prostate, is rarely performed as an emergency surgicial procedure. Rather, within a reasonable time range, the date for a prostatectomy is scheduled for a date suiting the availability of the hospital and the convenience of the surgeon and the patient. Under general sick leave regulations, a male teacher planning to undergo a prostatectomy is not required to give advance notice of the contemplated operation or to begin sick leave at any specific date, even at a semester break if one should intervene, prior to the operation, or to seek permission to continue work until the operation. Lest it be thought that an elective prostatectomy among male teachers is a rare event, I stress that the general sick leave requirements contain no requirement of notice, a mandatory beginning of sick leave or continuation of employment after notice until surgery for any elective surgery for any teacher, male or female. Yet it cannot be said that the disruptive effect on the students or the burden on the school administration is any less in the case of any elective surgery than the disruption and burden occasioned by a pregnant teacher’s absenting herself to deliver. Indeed, it would be greater since the pregnant teacher would have been re*402quired to give notice of her impending confinement and thus school officials would have had ample time in which to find a replacement. To me, the discrimination is obvious.
I agree with the Sixth Circuit’s decision in LaFleur v. Cleveland Board of Education, 465 F.2d 1184 (1972) holding invalid, as a denial of equal protection of the laws, a maternity leave regulation which, like that in the case at bar, required a teacher to begin maternity leave not later than five months before the expected date of normal birth of her child, but which, incidentally, required only two weeks notice of the fact of pregnancy and prohibitied the teacher’s return to her duties earlier than three months after the child’s birth. Both the enforced leave before and after birth were held impermissible, because there was lacking, as here, medical evidence or any other valid reason to support the extended period of mandatory leave. While the court recognized that continuity of classroom instruction and relief of burdensome administrative problems would both be served if the regulation were upheld, it concluded that these problems were no more acute with respect to pregnant teachers than other teachers, male or female, who suffered other actual disabilities; and moreover, that administrative convenience could not be permitted to override “the determinative issues of competence and care” (Stanley v. Illinois, 405 U.S. 645, 657, 92 S.Ct. 1208, 1215, 31 L.Ed.2d 551 (1972)). Rejected also was the argument that the teacher was bound by her employment contract which required adherence to the regulation because “constitutional protection does extend to the public servant whose exclusion . is patently arbitrary or discriminatory.” Wieman v. Updegraff, 344 U.S. 183, 192, 73 S.Ct. 215, 219, 97 L.Ed. 216 (1952).
Additional support for my views is found in Robinson v. Rand, 340 F.Supp. 37 (D.Colo.1972); Doe v. Osteopathic Hospital of Wichita, 333 F.Supp. 1357 (D.Kan.1971); Williams v. School District (N.D.Cal.1972); Monell v. Dept. of Social Services (S.D.N.Y.1972); Bravo v. Board of Education, 345 F.Supp. 155 (N.D.Ill.1972); Heath v. Westerville Board of Education, 345 F.Supp. 501 (S.D.Ohio 1972). There is a contrary dictum in the split decision in Schattman v. Texas Employment Commission, supra, indicating that a maternity leave regulation requiring leave to begin not later than two months before the expected delivery date would be valid; but, without expressing any view on the correctness of the dictum, I agree with the Sixth Circuit in LaFleur that Schattman is distinguishable from the instant case on its facts.
CRAVEN and BUTZNER, JJ., authorize me to say that they join in this opinion.
. In addition to seeking redress of an alleged denial of equal protection, plaintiff’s complaint sought relief under the Equal Employment Opportunity Act, Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e-2(a) :
It shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual witli respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin ;
At the time of the proceedings below, however, state agencies and educational institutions were specifically exempted from the Act. 42 U.S.C.A. § 2000e(b) ; 42 U.S.C.A. § 2000e-I. Subsequent to oral argument, these exemptions were repealed by the Equal Employment Opportunity Act of 1972, P.L. 92-261, signed by the President March 24, 1972 and effective immediately. On April 5, 1972, the Equal Employment Opportunity Commission adopted guidelines (a) declaring that exclusion of employees “from employment . . . because of pregnancy is in prima facie violation of Title VII” (29 C.F.R. § 1604.10(a), and (b) requiring employers to treat disabilities caused by pregnancy and childbirth like other temporary disabilities (29 C.F.R. § 1604.-10(b)).
Although rules and practices of the defendant in effect when the defendant was exempt from the Act cannot be the basis for a violation of that Act, even though, as the amicus correctly points out, they are entitled to “great deference” in interpreting the Act, Griggs v. Duke Power Co., 401 U.S. 424, 434, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), the majority’s holding is to the effect that constitutionally discrimination between pregnant women and other women and men, on account of pregnancy, is permissible. It would seem to follow that a contrary regulation would be in excess of the statutory grant of authority.
. The record belies the benevolent purpose of the school officials ascribed to them by the majority: The principal of Mrs. Cohen’s school had previously requested that she be permitted to teach until the end of the first semester, January 21, 1971. From the standpoint of minimizing disruption of the education process of her students, this would seem to have been a sensible request. However, blind adherence to the regulation, or the board’s convenience in providing a replacement, or possibly the replacement’s convenience in beginning work, was permitted to prevail. The board itself never articulated the reason for rejecting the recommendation of one who could be expected to have more intimate and accurate knowledge of the needs of the pupils affected than it.