Too old to stay? Court says yes
March 8, 2010 by Taylor HanniganPosted in: From the Courts, In this week's e-newsletter, Latest News & Views
It sounded like a pretty clear-cut case of age bias – but a federal appeals court said it’s not.
Under Alabama law, no member of the board of trustees of Alabama State University can serve on the board past September 30 following his 70th birthday.
Joe Reed, who was set to hit 70 before his term on the board expired, sued the governor and chair of the board to block his removal. He said the age limit was unconstitutional because it violated the Equal Protection Clause of the Fourteenth Amendment.
No dice, the Eleventh Circuit appeals court said. Relying heavily on the Supreme Court’s ruling in Gregory v. Ashcroft, 502 U.S. 452 (1991), it said the mandatory retirement provision was constitutional because it satisfied rational basis review.
Cite: Clark v. Riley.
How old is too old to serve on a college board of trustees? Tell us what you think in the comments section below.
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Tags: age discrimination, Alabama State University, board of trustees
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March 10th, 2010 at 4:09 pm
Serving on the board of trustees bears a lot of responsibility. Evidently, a certain age barrier is necessary (e.g., to prevent from irresponsible voting). I do not know whether it should be 70, 75, or more. Mr. Reed knew about the age limitation beforehand and he did not contest it, until he hit the threshold age.
There are certain professions where there is no age limitation. People usually know when the time to terminate their service to the institution arrived. In some cases, however, they frantically try to keep their jobs, which serves no good, as they collect quite big salaries being completely inefficient and occupy a job slot that could be offered to someone who is much more competitive.
March 12th, 2010 at 12:36 pm
What about Supreme Court Justices? Are they not in a very responsible position? They serve for life and it is up to them to judge if they can’t perform the job anymore.
Some people are as sharp as a tack at 70. Some aren’t. Performance should be the criterion.
March 12th, 2010 at 4:45 pm
This is so wrong on so many levels. It should always be about performance. Time to change Alabama law.
March 12th, 2010 at 4:52 pm
A numerical age limit is arbitrary. Why not 69, or 71? The University should consider changing its rule to allow the person to retire at the end of the term in which they reach the “magic number”.
March 12th, 2010 at 4:58 pm
Certainly it is a responsibility but to force someone out because of their age should not be the critera for removal. However, if Mr. Reed knew about the age limit before hand, he had time to question it or not to agree to the terms.
To be quite frank, it unfortunately sounds as if perhaps there were other motivating factors in this situation. For if the rest of the board wanted him to stay, they would have made it possible.
March 12th, 2010 at 4:58 pm
I think the Supreme Court should have a term limit of maximum 8 years. Just like the President. What makes the judges think they are better than everyone else and incapable of making a mistake? If we have term limits, we will have fresh minds and perspectives looking at the Constitution. Congress has to be reelected every couple of years, so this should indicate that we need fresh minds in both Congress and the court system, regardless of age.
March 12th, 2010 at 5:10 pm
The Supreme Court SHOULD BE apolitical and thier appointment for life should not be an issue.
As to the present case in Alabama, the gentleman should be able to serve as long as whoever elects or appoints him wants him to be there.
March 12th, 2010 at 5:17 pm
There is more to life than one job. Be like Ben Franklin and try many jobs. Just because the university set the age at 70 doesn’t mean you should roll over and die but there is always a need for new blood in the system otherwise we get stagnite and don’t look forward to change. After all take a look at Congress. Age doesn’t make a difference but by doing things the same way all the time doesn’t allow for new ideas.
March 12th, 2010 at 5:20 pm
We’ve been through this before with jobs like firefighters. A woman can’t join the fire department because “women aren’t strong enough.” Of course some women are plenty strong enough, sometimes stronger than men who get the jobs. So now they take a test.
“People over 70 are incompetent” is just as much a stereotype. Some people probably should have been kicked off the school board at 60, and some will be just fine at 90. I trust this will go to SCOTUS and the arguments will turn on the fact that there’s no age limit for the justices.
March 12th, 2010 at 5:22 pm
A set age is very arbitrary. Decision making abilities that require experience and critical decisionmaking skills frequently increase with age. Seems to be to be desireable traits to have on a Board.
March 12th, 2010 at 5:23 pm
Where is the discrimination?
If you are consistently retiring all employees at a given age, you are treating everybody the same, at least with regard to age.
Justices of the Supreme Court are appointed for life, but their tenure is a special case.
And even if individually they might not be able to take a hint about declining powers of judgment, there are only nine of them.
March 12th, 2010 at 5:24 pm
Warren hit the nail on the head; it should be based on performance.
March 12th, 2010 at 5:25 pm
A board always needs a non-confrontational way to cycle non-productive or problem members out, and to bring fresh ideas in. Term limits work better than age limits! If a person is a “keeper” he or she can always be rotated off for a year and then renominated.
March 12th, 2010 at 5:28 pm
@Joyce Lott,
Justices do not have term limits because the Judicial Branch (like the Executive and Legislative) is supposed to exert checks and balances on the other branches. If judges were beholden to re-election or re-appointment, they would make decisions based on the political powers of the day, not on the law. By creating a situation where a judge is appointed, the Supreme Court could theoretically have a justice be appointed then rule against the President in the first case presented with no risk of being replaced in 4 years if that President or their party is still in charge.
March 12th, 2010 at 5:36 pm
Supreme Court justices who should be removed because they are too old according to their own ruling:
John Paul Stevens (89)
Antonin Scalia (74)
Anthony Kennedy (73)
Ruth Bader Giinsburg (76)
Stephen Breyer (71)
Since more than half of the Supreme Court is too old to make a competent decision (according to themselves), should their ruling in the Gregory v. Ashcroft apply? I am assuming, of course, that the Supreme Court in 1991 was made up of old people, which it more than likely was. This means that they were not incompetent and therefore their ruling should apply. Aaaarrrgggghhhh! I’m caught in a logical loop!!!!!
March 12th, 2010 at 5:38 pm
The U.S. Supreme Court itself has devised ways to deal with this. When the other justices have concluded that an elderly colleague no longer has the requisite mental acuity to serve on the court, they deputize one of their number or several to meet with that justice to suggest that time has come for him (it hasn’t yet applied to a female justice) to resign from the court. See the article on retirements in David Savage, Guide to the U.S. Supreme Court, 4th ed. Washington: CQ Press, 2004, pp. 876-77.
March 12th, 2010 at 6:06 pm
I would like this law then to apply to our senators and congressmen as well as the supreme court! Most of them serve way past Their Expiration Date!!!!
March 12th, 2010 at 9:31 pm
What a bunch of manure. Just what is “rational basis review” and who dreamed it up? Some twenty-something, no doubt.
March 13th, 2010 at 10:25 am
“All of the above” , especially Warren & Jim, have said it well — probably better than I, though I hate to admit it!
All of us have known folks that were mentally senile at 80. I’ll go back to the theme of an Al Capp (“L’il Abner”) cartoon sequence of the 1950′s ( I think!): people in responsible governmental positions should be required to pass an intelligence test! Age considerations should be of minor import if there are no health or mental issues.
March 13th, 2010 at 10:27 am
“All of the above” , especially Warren & Jim, have said it well — probably better than I, though I hate to admit it!
All of us have known folks that were mentally senile in their 40′s as well as some who were bright eyed & bushy-tailed when past 80. I’ll go back to the theme of an Al Capp (“L’il Abner”) cartoon sequence of the 1950′s ( I think!): people in responsible governmental positions should be required to pass an intelligence test! Age considerations should be of minor import if there are no health or mental issues.
March 13th, 2010 at 10:31 am
I agree with Jim Harris-he has nailed the issue.
March 15th, 2010 at 9:21 am
Speed, or the ability to do things quickly, declines with age. A knowledge base gained through experience and good reasoning abilities increase with age. Do we want our decision-makers to consider things from different perspectives (knowledge base) using honed reasoning skills? Or do we want them to make fast decisions that are not well informed? This is why we favor older people for decision-making roles like Supreme Court Justice.
Though speed declines with age, it does so on average, not uniformly. So you may have someone who is quite speedy at 70 and someone who is less so at 40, depending on the task. You may also have someone with poorer decision making skills who is 70 and good ones at 40. This is the argument for criteria based on the individual and her or his specific skills. If you are going to test for it, you should test everyone, not just folks over 70, since this would leave a lacking 40-year-old untested.
The poster who says that it is not discrimination because everyone is expected to retire at age 70 has got it backwards and must not have lived through the civil rights era. The whole issue there was that a person was being treated unfairly based on group membership. In other words, all members of this group were treated unfairly, all of them had to go to the back of the bus. If an individual is being treated unfairly, but the unfairness has nothing to do with group membership, that may be seen as unfortunate, but it is not seen as discrimination. This is clearly discrimination based on age.
March 15th, 2010 at 9:23 am
What about the Senators, Representatives and supreme? court justices. They serve for life. And they ALL do a terible job at it. Of course when you make laws they don’t apply to you! IE. age, not paying for health insurance and not paying for social security. Hmmmm…and they old farts saytheir is something wrong with our system. Maybe their is something wrong in how they insulate themselves from us.
March 15th, 2010 at 3:55 pm
For those who say Mr. Reed should have protested this before he reached retirement age, we do not know that he did not. However, what is evident is that he could not try to do anything about it legally until the mandatory retirement age rule applied to him. Before then, he had no standing with the court to challenge the rule. He took action at the only time that he could.
And, yes, mandatory retirement should be based on performance, not age.
March 31st, 2010 at 2:14 pm
I work on a campus where many faculty are over 65, have maxed out on their pension earnings, and yet they stay. At the same time, I see many, many young PhDs without a snowball’s chance in hell of securing a faculty post. To my way of thinking, universities require fresh air, fresh ideas, and a steady influx of new and younger faculty. When older faculty hang on and on and refuse to retire — regardless of their talents or productivity — they deny younger academics the ability to earn a wage and support themselves and their families. Sorry, I think this is wrong!
March 31st, 2010 at 5:06 pm
Pat, it is wrong when people hang on regardless of their ability and productivity, this would presumably true of young or old faculty. You could argue that women should not be hired because they’d be less productive if they *might* have children and need leave time for pregnancy. In fact, that idea was once used against women. Certainly children would be an impediment to either gender’s careers, since they take time and energy to raise, making the person less productive. How do you stay up late at night and do research and take care of the baby? Cognitive problems with aging are by no means uniform, and so you are talking about a medical problem if you assume that someone needs to leave a job because they cannot be productive. There, I’d agree.
What bother me about this ruling and some of the statements is that it assumes that all older faculty don’t have any fresh ideas, no ability and are not productive. It’s a stereotype. In fact, I know many older faculty where I work now who do lead with new ideas that have lots of depth of experience to back them. They often take on the role of mentor for newer faculty. At other schools they have Nobel Prize winners amongst the faculty, and the majority of these are older, too. Having them on the campus had quite a bit of value in many ways.
Not being able to find jobs is not the fault of older faculty. It’s the fault of the economy, including the idea that social security and pensions may not be there. We are all in it together. We should be putting pressure on educational institutions to hire more full time faculty, not rely on adjunct and part time faculty. That’s where the jobs for newer faculty need to come from, not pushing valuable people out the door before they should be based on age.
Getting rid of someone based on medical issues (mainly cognitive decline) is ok. If the court decided it was ok to get rid of someone incapable of doing their job, that would be ok. Getting rid of them based on age is discrimination, and it’s a slippery slope. Will women be next? Will minorities? Gays? All of it is discrimination and should be treated as such. Why? As the bank of jobs decrease, there will be more competition. How do we decide?
April 1st, 2010 at 9:23 am
Kathleen,
Very well said.
April 24th, 2010 at 1:07 pm
I would have to state the Supreme Court itself is showing bias – whatever happened to common sense? Typical double standard and stereotyping by government. Warren Buffet is 75 yrs of age, have we sent him out to pasture? Perhaps someone else wanted that seat on the board? I tend to follow the power, money trail.