Mandatory Retirement Is Age Discrimination
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It was disheartening to read “Older Doesn’t Mean Wiser” (Op-Ed, Oct. 26) by Gerhard Casper and Saunders Mac Lane, wringing their hands at the prospect that on Jan. 1, 1994, tenured professors at universities, like almost everybody else, will be spared the ignominy and injustice of mandatory retirement. These two scholars, who should know better, trot out a tired array of arguments. None of these arguments are backed by hard facts. Innovations in education, we are told, generally come “from young faculty members”; older ones are stuck with “what they learned when they were young.” This has not been my experience, and as far as I know, there is no empirical basis for such statements. Older people, the writers tell us, cannot keep up with the “rapid progress of research”; they are left behind because “ideas in the sciences, social sciences and humanities wear out faster than ever before.” Certainly, new ideas and findings on aging and gerontology seem to have passed Mr. Casper and Mr. Mac Lane completely by. Their conception of the abilities of people in the “golden years” is a sad mishmash of unscientific and outmoded stereotypes. The writers say if the new law goes into effect, American professors, “like Federal judges,” would have “lifetime tenure.” It is a telling example. Federal judges have had lifetime tenure for more than 200 years. Their work is arduous and demanding. Should we have retired John Marshall, Louis D. Brandeis, Oliver Wendell Holmes, Felix Frankfurter, Hugo L. Black and William J. Brennan Jr. at 70? Indeed, the Federal judiciary is a kind of natural experiment, which goes a long way to prove that mandatory retirement robs our institutions of talent. Aging is an enormously variable process, and fixing retirement at 70 is arbitrary. Mandatory retirement at 70, according to Mr. Casper and Mr. Mac Lane, “is uniform and nondiscriminatory.” The same could be said for shooting everybody over 70. It is no comfort to a vigorous teacher and researcher, deprived of career, job and position against his or her will, to be told that the same dreadful thing is happening to everybody else born in the same year. This brings me to what is probably the main point. Mandatory retirement is rank injustice. The central issue is civil rights. Mandatory retirement may be uniform; it is certainly not nondiscriminatory. Indeed, age discrimination is exactly what it is. The same magnificent social movement that led to rules against race and gender injustice has added another category: age. I do not mean to put age discrimination on a par with race and sex discrimination. It is nonetheless an evil, all the worse because people of good will do not yet see it as one. Of course, people had to be educated about race and sex discrimination, and still do. It is a monstrous wrong to send into job oblivion men and women whose only crime is a willingness to work and too many candles on their birthday cake. There is a growing sense that mandatory retirement is wrong, and it has been abolished for all except a handful of people. The exception for tenured professors will die a natural death in 1994. In more than a dozen states, it is already dead, and the sky has not fallen in. Twenty years from now, Mr. Casper and Mr. Mac Lane will blush to read the article that they wrote in 1990. LAWRENCE M. FRIEDMAN Stanford, Calif., Oct. 26, 1990 The writer is the Marion Rice Kirkwood Professor of Law at Stanford University. More : query.nytimes.com |