For lawyer and former teacher Jo Carol Nesset-Sale, the renewed spotlight on pregnancy discrimination against teachers鈥攕parked by attention to presidential candidate Elizabeth Warren鈥檚 experiences as a teacher in the early 1970s鈥攊s both personal and instructive.
As a young teacher herself that same school year, Nesset-Sale鈥攖hen with the married name of LaFleur鈥攕ued the Cleveland school district over a policy that required her to go on unpaid leave at the four-month point of her pregnancy and not return until at least three months after her child was born.
Her case, along with those of two other teachers, went to the U.S. Supreme Court, which in 1974, in Cleveland Board of 91制片厂视频 v. LaFleur, ruled 7-2 that restrictive maternity-leave policies violated the due-process clause of the 14th Amendment to the U.S. Constitution.
In part inspired by her own Supreme Court experience, she went to law school and launched a successful career as a lawyer and mediator. She lives in Athens, Ga., where at 72 she runs a small law firm.
The case that bears her name is considered by some to be an underrecognized legal landmark that continues to have social鈥攁nd political鈥攔esonance.
鈥淚 think many young people are shocked to hear that back in the day that this was what happened to women who became pregnant,鈥� Nesset-Sale told 91制片厂视频 Week in a phone interview. 鈥淵ou were essentially put out to pasture.鈥�
The issue of employment bias against pregnant teachers has drawn new attention in the wake of intense scrutiny to Warren鈥檚 narrative of being ousted from her teaching job when as a teacher she became visibly pregnant.
Nesset-Sale considers herself an admirer and supporter of Warren, and she is inclined to believe the senator鈥檚 account that pregnancy was the underlying reason she was forced out of her job as a speech therapist at a New Jersey school in 1971. Warren also has sometimes said publicly that she left because she lacked the proper certification to continue without further education courses.
Warren has recently pushed back against characterizations by conservatives that her account of being forced out because of her pregnancy was not backed up by fact. She told CBS News in early October that she had not yet revealed her pregnancy when her contract with the Riverdale, N.J., school district was renewed. And she dismissed a 2007 interview in which she did not mention being ousted when discussing her teaching stint by saying that when she became a U.S. Senate candidate in 2012, she 鈥渙pened up more about different pieces in my life, and this was one of them.鈥�
Nesset-Sale said Warren鈥檚 account of being ousted because of her pregnancy 鈥渟ounds absolutely plausible and likely to me. Those were the rules of the day, and most women were taught not to make waves, and could not afford to make waves.鈥�
Transitions at School
Nesset-Sale has provided at least two detailed recollections of her own experience. One was in the 1988 book The Courage of Their Convictions: Sixteen Americans Who Fought Their Way to the Supreme Court, by Peter Irons. The other was in a 2006 scholarly article in The Georgetown Journal of Gender and the Law.
She grew up in Richmond, Va., attending school there as the district struggled to integrate after Brown v. Board of 91制片厂视频 in 1954. She graduated from the College of William and Mary, in Williamsburg, Va., in 1968 and soon moved to Cleveland with her first husband, who was from there.
After pursuing a degree in social work, she found the job too bureaucratic and shifted to education, ending up in 1970 at Patrick Henry Junior High School in the Cleveland system.
In the 1970-71 year, her first full year teaching at the school, she taught English the first semester but then was asked to take over the 鈥渢ransition鈥� class, which served 7th grade girls at risk of dropping out for a variety of reasons, even pregnancy. The opening occurred because the class鈥檚 teacher herself became pregnant.
During that winter, Jo Carol LaFleur learned she had become pregnant. When word reached the principal, she was summoned to his office and directed to fill out papers to take her maternity leave. She told the principal that because her baby wasn鈥檛 due until well into the summer, she intended to finish the school year. She pointed out that the transitions class had pregnant students and had already lost one teacher that year. The principal did not budge, and the young teacher involuntarily went on leave.
She has said she got no support from her teachers鈥� union or from the local office of the American Civil Liberties Union. She eventually found help from the Women鈥檚 Equity Action League, which connected her with a Cleveland lawyer named Jane M. Picker.
Competing Physician Testimony
The case went to U.S. District Court in Cleveland that same spring. The school district defended its policy, which had been enacted in 1952. The superintendent from that time testified on behalf of the district and said that visibly pregnant teachers were subject to humiliation by students, who might giggle about the condition. This was reflective of an attitude pervading many such policies that a visibly pregnant teacher in the classroom was an emblem of sexuality.
The school district also called a male obstetrician, who stressed the medical complications of pregnancy and discussed the dangers a pregnant teacher might face from, say, the pushing and shoving typical in a school hallway. The district鈥檚 lawyer even suggested that a virtually all-black urban school鈥攏early all of Patrick Henry Junior High鈥檚 2,200 students were African-American鈥攎ight pose extra dangers to the pregnant teacher.
Her lawyer called a female obstetrician who was in her 70s and believed most pregnant women could work until they were ready to deliver. Asked whether pregnant teachers could climb school stairs, the doctor said yes, that it was beneficial, but they just should not run up or down staircases.
The federal district judge ruled against the teacher and upheld the district鈥檚 policy, reaching back to a 1908 Supreme Court decision that took a paternalistic and protectionist stance on the differences between the sexes.
When the case was appealed to the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, the new mother brought her young son, who had been born in July 1971. In the elevator, they met and exchanged pleasantries with an older man who turned out to be Tom Clark, a retired Supreme Court justice who was serving on the three-judge panel that heard her case.
In a 2-1 decision, with Clark in the majority, the 6th Circuit panel held the school district鈥檚 policy to be arbitrary and unreasonable, and to violate the equal-protection clause of the 14th Amendment. The school district appealed to the high court, which took up the case along with one other from Cleveland and one from Chesterfield County, Va., in which another federal appeals court had upheld the local school district鈥檚 pregnancy-leave policy.
In the Supreme Court, the teachers gained support from such disparate sources as the Nixon administration, the teachers鈥� unions, and the national office of the ACLU. The ACLU鈥檚 brief was signed by, among others, the head of its then-new Women鈥檚 Law Project, Ruth Bader Ginsburg.
The school district, in its Supreme Court brief, reiterated its arguments suggesting that pregnant teachers were a risk to themselves and to the school. 鈥淐hildren today, nurtured 鈥� by the violence of television programs and their reactions to the world around them, must be taught by able-bodied, vigorous teachers,鈥� the district said.
On Jan. 21, 1974, the Supreme Court issued its decision in favor of LaFleur, with an opinion written by Justice Potter Stewart. The opinion was based not on the 14th Amendment鈥檚 equal-protection clause but on its due-process clause, which had been central to the court鈥檚 then-recent decisions upholding a woman鈥檚 right to terminate a pregnancy or to use contraception.
鈥淏y acting to penalize the pregnant teacher for deciding to bear a child, overly restrictive maternity leave regulations can constitute a heavy burden on the exercise of these protected freedoms,鈥� Stewart wrote.
鈥淲hile it might be easier for the school boards to conclusively presume that all pregnant women are unfit to teach past the fourth or fifth month or even the first month, of pregnancy, administrative convenience alone is insufficient to make valid what otherwise is a violation of due process of law,鈥� Stewart added.
A Law Professor鈥檚 Analysis
The LaFleur decision helped many teachers as most districts quickly dropped their restrictive pregnancy leave policies. But some feminists and others were disappointed the court did not analyze the case within a framework of gender equality.
The high court soon issued a number of decisions in public-sector and private-sector workplace pregnancy cases that declined to protect pregnant employees under the equal-protection clause or the Civil Rights Act of 1964. Congress responded with respect to Title VII by enacting the Pregnancy Discrimination Act of 1978, which added pregnancy-bias to the federal employment statute.
Deborah Dinner, an associate professor at Emory University law school, has written that the Supreme Court鈥檚 LaFleur decision 鈥渄eserves a far more prominent place in our constitutional history and canon than the case now holds.鈥�
鈥淧erhaps the most significant meaning of the decision is one not recognized at the time but that is visible in hindsight,鈥� Dinner wrote in a 2010 article in the Yale Journal of Law and Feminism. 鈥�Cleveland Board of 91制片厂视频 v. LaFleur contained a nascent recognition of the relationship between women鈥檚 rights to sex equality and to reproductive liberty.鈥�
In an interview, Dinner said she had also been thinking about the LaFleur case in light of the public attention to Warren鈥檚 account of her teaching experience, though she stressed that she knew no more about the facts of Warren鈥檚 experience than anyone else not directly involved.
鈥淭he context of these pregnancy-dismissal policies is that they were routine and widespread across the country,鈥� Dinner said. 鈥淢y default intuition about any teacher who says she was fired for this at the time is that she was correct.鈥�
Dinner said even the Pregnancy Discrimination Act has not eradicated all forms of workplace bias against pregnant women. But the LaFleur decision was particularly important to public education, as it gave unions, policymakers, and female teachers the impetus to change such restrictive, protectionist policies.
鈥楢 Joyous Circumstance鈥�
In January 1972, while the case was still pending in the lower courts, Nesset-Sale became eligible to return to Patrick Henry Junior High. (Per the district鈥檚 return policy, that was the first semester that began after her son had turned 3 months old.) But she was informed that there were no openings for a teacher with her qualifications.
She was offered openings in two of the Cleveland鈥檚 district most dangerous schools, but she passed those up in favor of a teaching at Lakewood High School, in a diverse Cleveland suburb. That鈥檚 where she was at work when the Supreme Court ruled in her favor in January 1974.
She was called to the school office because a radio station wanted her reaction. She didn鈥檛 take the call because she didn鈥檛 know the upshot or the scope of the ruling. Instead, she called Picker, her lawyer, who didn鈥檛 have many details but told her they had won. She did 鈥渙ne grand j茅t茅 after another鈥� back to her classroom, she said.
At Picker鈥檚 urging, she decided to go to law school, first in Cleveland while she continued to teach, and later as a full-time law student at the University of Utah, after she and her family had moved to Salt Lake City. In her constitutional law class, her own case was featured in a textbook, and classmates asked her to sign it.
She became a public defender, and later a private lawyer specializing in mediation and legal ethics. She moved in 1994 from Utah to Georgia, where she still works at her small firm in Athens.
鈥淔or many of us, the greatest satisfaction we have is continuing to do the job we chose for ourselves,鈥� Nesset-Sale said. 鈥淧regnancy is not an illness but a joyous circumstance. I could not let that discrimination go unchallenged.鈥�
