(concurring) :
I concur in result only with the majority opinion. I agree with the minority that Code Section 9-1-1530 is ambiguous and open to construction by the Court. This statute establishes only mandatory maximum retirement age and does not speak unequivocally on the question of retirement prior tO' age seventy. The Legislature was concerned only with setting a maximum age for retirement, as the question of involuntary retirement1 before the attainment of seventy years was simply not addressed. It is therefore appropriate for this Court to look to administrative construction of contemporaneous statutes such as Code Section 59-117-40, as well as apparent legislative acquiescence 2 in such construction to determine the legislative intent of § 9-1-1530.
In this case there was no challenge made to the reasonableness of the University’s regulations,3 but rather to the University’s power to enact such rules. I agree with that portion of the minority opinion which holds that the University has the authority (absent future legislative clarification) to set a reasonable retirement age below the statutory maximum. However, my concurrence is limited to those situations in which the proposed retirement age bears a rational *247relationship4 to legitimate University objectives. Common sense seems to support the minority’s view that:
“The argument that some professors are highly competent until they are 70 cannot be refuted. However, others lose their energies and enthusiasms, so necessary to teaching, at a younger age.”
Yet this record contains no statistics, professional opinions, or other evidence to support the bare assertion that retirement of college professors at age sixty-five bears a rational relationship to a legitimate University objective.5
Therefore, although I agree the University has the authority to declare a reasonable retirement age within the parameters of the statute, my agreement is limited to those instances where the chosen age bears a rational relationship to a legitimate University purpose.6
Voluntary retirement at age sixty-five, or with thirty years service is allowed by § 9-1-1550 for “members,” which includes both teachers and employees. § 9-1-10 (b).
However, legislative acquiescence in programs which may contravene an explicit statute must be carefully evaluated. For two recent cases dealing with the issue in a different context, see TV A v. Hill, . . U. S....., 98 S. Ct. 2279, 57 L. Ed. (2d) 117 (1978), and SEC v. Sloan, .... U. S....., 98 S. Ct. 1702, 56 L. Ed. (2d) (1978).
Such regulations are presumed valid until challenged. Massachusetts Board of Retirement, et al. v. Murgia, 427 U. S. 307, 96 S. Ct. 2562, 2567, 49 L. Ed. (2d) 520 (1976), note 5.
The rational relationship test, rather than “strict scrutiny” is applied to claims of age-based discrimination. Massachusetts Board of Retirement, et al. v. Murgia, supra.
It may well be that the Legislature has recognized the presumptive loss of teaching capacity at age sixty-five by setting that age as the general maximum retirement age for “teachers” in § 9-1-1520. However, recognition or presumption by the Legislature that a classification bears a rational relationship to a legitimate state interest does not insulate such a classification from this Court’s scrutiny. See, Marley v. Kirby, 245 S. E. (2d) 604 (Iowa 1978); Broome v. Truluck, 241 S. E. (2d) 739 (Iowa 1978).
For a recent Federal appeals court opinion in line with this view, see Gault v. Garrison, 569 F. (2d) 993 (7th Cir. 1977).