dissenting.
The majority opinion draws distinctions found to be persuasively supporting the result reached in the opinion between the present case and Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976); however, a fundamental distinction between the two *998cases appears to be ignored. Because it is a significant distinction in my mind, and for other reasons set out herein, I respectfully dissent.
Murgia drew the line for compulsory retirement at the age of 50, “a certain age in middle life,” id. at 313, 96 S.Ct. at 2567. While for personal reasons, as well documented studies, I would be hesitant to say that the person who has reached 65 years of age is necessarily elderly either physically or mentally, I also think as a matter of law that that age was so well established at the pertinent time as a point at which retirement age was reached that if it is to be changed, the change should be accomplished by the legislative branch and not by judicial action purportedly under the Constitution.
In 1967, the Congress, being aware that approximately half of the states had enacted age discrimination legislation, 1967 U.S. Code Cong. & Admin.News p. 2215, enacted P.L. 30-302, sometimes referred to as the Age Discrimination in Employment Act of 1967. In House Report No. 805 on the pending legislation it was stated that “the bill outlines a national policy against discrimination in employment on account of age, provides a vehicle for enforcement of the policy, and establishes broad general guidelines for its implementation.” 1967 U.S.Code Cong. & Admin.News p. 2220. That national policy insofar as age limitations were concerned was stated to be “individuals who are at least forty years of age but less than sixty-five years of age.” 29 U.S.C. § 631. In the statute itself the Congress stated that the Act’s purpose was, inter alia, “to promote employment of older persons based on their ability rather than age”; and “to prohibit arbitrary age discrimination in employment . . . ” 29 U.S.C. § 621(b). It appears plain that the Congress by so stating the policy did not regard discontinuance of employment beyond the age of 65 to be age discrimination of an arbitrary nature. Indeed, House Report No. 805 indicates that the major concern was not with the 65 year age standard but with the lower limit, which had been lowered from 45 in the original bill, with argument being considered that in some occupations age discrimination could be found at a lower point. Id. at 2219.
That a legislative enactment establishes national guidelines does not, of course, necessarily import constitutionality into those guidelines. Nevertheless, when those guidelines are an interwoven part of a broader pattern, as is obviously the situation in this country, of pension and retirement plans and social security statutes, the courts, it appears to me, should be extremely reluctant to tamper with one part of the broad social scheme.
The Supreme Court has told us in Mur-gia, dealing with compulsory retirement of state police officers at the age of 50, that such action by a legislature is presumed to be valid, and that the judicial inquiry must employ a relatively relaxed rational-basis standard reflecting judicial “awareness that the drawing of lines that create distinctions is peculiarly a legislative task.” 427 U.S. at 314, 96 S.Ct. at 2567. This approach to a “middle life” compulsory retirement age directed at one specific occupation suggests that our examination of a compulsory retirement procedure involving a significantly higher age maximum not only applicable to the particular occupation but one generally applicable, and generally deemed appropriate, should be on an a fortiori basis insofar as the relativity of the relaxed rational-basis standard is concerned.
The significance of a higher age equation with the propriety of mandatory requirement was implicitly recognized in the Mur-gia district court opinion by the following observation of Judge Aldrich:
[W]e would anticipate the question of mandatory retirement at age 70 not to be the same as at age 50, but perhaps we say this because of the increasing difficulties that a plaintiff might have to show that at the greater age the state had not made out a factually rational argument.
Murgia v. Commonwealth of Massachusetts Board of Retirement, 376 F.Supp. 753, 756 n.9 (D.Mass.1974).
In any event, just as the courts should dispose of cases if possible on grounds other *999than by reaching constitutional issues, the courts should also, it seems to me, where the federal legislative picture demonstrates an alertness to an an orderly resolution of a complex societal problem, exercise restraint in intervening under the constitutional cloak in the developmental process on what could only be a piecemeal basis.
In the present context, Congressional concern and continuing interest is clear. In the original Act, the Secretary of Labor was charged with undertaking an education and research program and was specifically directed to recommend to Congress any measures he deemed desirable to change the lower or upper age limits. 29 U.S.C. § 622. While employers were not prevented by the Act from taking action otherwise prohibited where age is a bona fide occupational qualification reasonably necessary to the operation of a particular business, or where differentiation is based on reasonable factors other than age, or where there is observance of the terms of seniority systems or pension and similar plans which are not subterfuges to evade the purposes of the Act, or where there is discharge for good cause, § 623(f), the Act makes age itself within the Act’s limits an unlawful basis for discrimination. § 623(a). In the 1974 amendments, it was provided that the definition of an employer included “a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State”. 29 U.S.C. § 630(b).
Currently, we find that the legislative process is an unintermitted one. Both the House and Senate have passed amendatory versions which are now in conference committee, the conferees having been appointed late in October of 1977. It, inter alia, has been agreed by both houses that the maximum age limit shall be 70 rather than 65. See CCH Lab.L.Rep., Employment Practices, Rep. 30, October 20, 1977.
The comprehensive legislative scheme as it continues to develop will not, of course, mean, as it does not now, that every employee in every occupation is automatically entitled to stay on to the maximum age limitation. This, obviously, is on the assumption that legislation in the future will continue to recognize § 623(f) factors permitting under-maximum-age employment termination such as good cause discharge, necessary occupational qualification, and bona fide, non-subterfuge employee benefit plans. The maximum age, however, as it is established from time to time in the public interest appears to me in and of itself to import rationality and to preclude challenge by those exceeding the maximum.
Turning to the particular case before us, it is noted that the Illinois Age Discrimination Act, as contrasted to the federal statute and most state statutes, does not on its face specify a maximum age. Kennedy v. Community School District No. 7, Cham-paign County, 23 Ill.App.3d 382, 319 N.E.2d 243, 246-47 (1974). The court in Kennedy, however, rejected a challenge to age 65 retirement by a teacher not only on due process and equal protection grounds but also under the Illinois Age Discrimination Act pointing out that under that legislation, similarly to the federal act, it was not intended to interfere with the operation of non-subterfuge annuity and pension plans. “The long existence of the statutory system of annuities and pensions and its general application to teachers throughout the State demonstrate that the ‘retirement system’ is not a subterfuge to evade the Age Discrimination Act.” 319 N.E.2d at 247.
In the case before us, there is not only the rational relationship between the plaintiff’s employment status and a non-subterfuge employee benefit plan but also she had gone beyond the maximum age so specified as a matter of national policy at the time of her termination, even though at the time state employees were not included within the federal statutory coverage.
Further, under the relaxed Murgia standard which would be applicable to a person past 65, it appears to me, although it was not expressly articulated by the defense, that the age 65 classification, aside from any aspect of declining physical or mental vigor, rationally furthers an educational purpose of the state. It is common knowl*1000edge that there is a growing surplus of teachers with the forecast that this surplus will continue to grow in size with many recent graduates majoring in education being unable to find employment. With the lifting of compulsory retirement and the continuing in employment of teachers who otherwise would have retired, it is reasonably foreseeable that those pursuing higher education will turn to other lines of endeav- or with the result that when sheer physical or mental disability, or death, thins the ranks there will not be quantitative, and possibly qualitative, replacements.
I would hold therefore that the plaintiff has failed to demonstrate an infringement of her constitutional equal protection rights. She also has raised on this appeal a claim of due process violation, both procedural and substantive. I discern no merit in this attack. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Perry v. Sinder-mann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975).