concurring.
Strict scrutiny is not the proper test for determining whether a mandatory retirement provision denies appellee equal protection, because strict scrutiny of a legislative classification is required only when the classification impermissibly interferes with the exercise of a fundamental right (cases cited in Murgia, Note 3), or operates to the peculiar disadvantage of a suspect class (cases cited in Murgia, Note 4). If mandatory retirement for a policeman at age 50 does not interfere with the exercise of his fundamental right neither will mandatory retirement interfere with the desire or right of a teacher to teach at age 65. Nor is a teacher within a suspect class. Appellant here has no fundamental right to teach, either at 65, or at any other age. Cf. San Antonio School District v. Rodriguez, 411 U.S. 1, 16, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). Here we must examine the state’s classification under the less strict rational-basis standard. To paraphrase Murgia, “Since physical ability generally declines with age, mandatory retirement at 65 serves to remove from teaching those whose fitness for work presumptively has diminished with age. This clearly is rationally related to the state’s objective.”
Whether 65 or 60 or 70 is a proper age for teacher retirement is not here our concern. Imperfect classifications made by legislative bodies are not rendered unlawful by their imperfections. Dandridge v. Williams, 397 U.S. at 485, 90 S.Ct. 1153, cited in Murgia, 427 U.S. pp. 316-17, 96 S.Ct. 2562.
But to apply these principles to the facts of this case is impossible, because no evidence has been presented at any time (as Judge Swygert’s opinion points out), and we have no factual basis upon which to judge the issues or to apply the law.
I concur in Judge SWYGERT’s opinion.