NEALON, District Judge.
In this civil rights action plaintiff, Esther L. Feinerman, attacks the constitutionality of certain sections of the Pennsylvania Veterans' Preference Act of 1945, Pa. Stat. Ann. tit. 51 § 492.2 et seq. Plaintiff contends that the provision of the Act granting a ten-point bonus to the score of any veteran receiving a passing grade on the state civil service examination discriminates against non-veterans generally and women, particularly, in violation of the due process and equal protection clauses of the 14th Amendment to the United States Constitution.
The jurisdiction of the Court is invoked under 28 U.S.C. sections 1343, 2284 and 42 U.S.C. § 1983. Since plaintiff seeks to restrain the enforcement of a State statute, a three-judge District Court was assigned to hear the action in conformity with the provisions of 28 U.S.C. sections 2281 and 2284. See Phillips v. United States, 312 U.S. 246, 85 L. Ed. 800, 61 S. Ct. 480 (1941). The case came on for hearing on May 26, 1972, from which the following facts appear.
The plaintiff has been employed as an Information Writer II, a position in the classified service, on provisional status in Pennsylvania's Department of Education since November 16, 1970. On September 18, 1971, she took and passed the Civil Service Examination conducted by the State Civil Service Commission, receiving a grade of 91.57. Only one other applicant taking the test received a higher raw score. However, because of the application of the ten-point bonus granted by the Veterans' Preference Act, five other applicants, all veterans, had higher final ratings and were placed ahead of plaintiff on the employment list. Pursuant to Section 601.3.1 of the Rules of the State Civil Service Commission, the names of the three eligibles having the highest final rating were certified by the Director of the Commission to the appointing power to fill the position of Information Writer II. Since plaintiff's name was not among the three so certified, she was notified on February 2, 1972, that she would have to leave her employment.
The granting of ten-point bonuses to veterans is made in accordance with § 3 of the Veterans' Preference Act which provides
"Whenever any soldier shall successfully pass a civil service appointment or promotional examination for a public position under the Commonwealth . . . such soldier's examination shall be marked or graded an additional ten points above the mark or grade credited for the examination, and the total mark or grade thus obtained shall represent the final mark or grade of such soldier, and shall determine his standing on any eligible or promotional list, certified or furnished to the appointing or promoting power."
Pa. Stat. Ann. tit. 51 § 492.3
According to § 2 of the Act, the bonus for veterans is given in recognition of "the discipline and experience represented by his military training and for the loyalty and public spirit demonstrated by his service for the preservation of his country." Pa. Stat. Ann. tit. 51 § 492.2. Plaintiff asserts, first, that the right to public employment is a fundamental "right" or fundamental "interest" which, when affected by veterans' preference must be justified by a compelling state interest. Secondly, she argues in the alternative that even if public employment is not deemed to be a fundamental interest, the preference for veterans constitutes discrimination in public employment on non-merit factors bearing no rational relationship to job qualification in violation of the equal protection clause of the 14th Amendment. Moreover, plaintiff further complains that because of the acute disproportion between men and women in the Armed Forces, preference for the veteran results principally for the benefit of men and, therefore, indirectly discriminates against women on the basis of sex. Finally, § 7 which provides for preference in civil service employment for wives and widows of veterans without making a similar provision for husbands and widowers, is attacked as creating a classification which discriminates against men. Inasmuch as the issues raised by plaintiff require different forms of analysis, her claims will be considered separately.
An essential element of any analysis involving the equal protection clause requires a determination of the appropriate standard to be used by which to gauge the constitutionality of a given statute. The traditional equal protection standard looks to the reasonableness of the classification in light of its possible intended purposes. Shapiro v. Thompson, 394 U.S. 618, 22 L. Ed. 2d 600, 89 S. Ct. 1322 (1969). The classification must bear some rational relationship to a legitimate end and will be set aside as violative of the Equal Protection clause only if based on reasons totally unrelated to that goal. McDonald v. Board of Election Commissioners, 394 U.S. 802, 22 L. Ed. 2d 739, 89 S. Ct. 1404 (1969). Under this test, the party challenging the constitutionality of a statute has the burden of proving that the statute denies him equal protection and it will not be set aside if it is reasonably related to some permissible legislative or administrative purpose. McGowan v. Maryland, 366 U.S. 420, 6 L. Ed. 2d 393, 81 S. Ct. 1101 (1961); Madden v. Kentucky, 309 U.S. 83, 88, 84 L. Ed. 590, 60 S. Ct. 406 (1940); Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 55 L. Ed. 369, 31 S. Ct. 337 (1911).
However, in recent years a stricter standard of review has emerged in cases where a classification is either based upon "suspect" criteria or involves a "fundamental" right or "fundamental" interest. Such a classification will be held to be invalid unless it is shown to be necessary to promote a "compelling" state interest. Shapiro v. Thompson, supra. The compelling state interest test requires:
"(a) . . . that the challenged classification be strictly relevant to whatever purpose is claimed by the state to justify its use, and also that it be the fairest and least restrictive alternative evidently available for the pursuit of that purpose ('necessity'); and (b) . . . that the infringement of fundamental interests resulting from the classifications use be outweighed by the claimed state purpose ('compellingness')."
Michelman, The Supreme Court 1968 Term -- Forward: On Protecting the Poor Through the Fourteenth Amendment, 83 Harv. L. Rev. 7, 20 n. 34 (1969); see also Developments in the Law -- Equal Protection, 82 Harv. L. Rev. 1065, 1124, 1125 (1969). Plaintiff would have the court apply the stricter equal protection standard here, contending that the right to be fairly considered for public employment is a fundamental interest and any classification affecting the right must be justified by a compelling state interest.
Before proceeding further, it would be well to put plaintiff's position in its proper context. Plaintiff is only claiming that she has a right to be fairly considered for public employment; she is not claiming that without veterans' preference, she would be entitled to a position. According to plaintiff's complaint, under Sec. 601 of the Rules of the Civil Service Commission, the Director of the Commission certifies to the appointing power the names of three eligibles who appear highest on the eligible list. The appointing power then reviews the relative merits of the candidates and selects a person for appointment from the list of three eligibles, not necessarily the eligible with the highest score. It is true that under Section 4 of the Act, if one of the three names is a veteran, he must be given an absolute preference and that preference may be given to a veteran who has passed the exam even though his name does not appear on the certified list. Pa. Stat. Ann. Tit. 51 § 492.4. However, if all three eligibles are veterans, the appointing power theoretically could select the applicant with the lowest score. Hence, the appointing power has discretion to make its own appointment, taking into consideration other factors besides the applicant's raw score on the test. In addition, it would be possible for the appointing power to refuse to make any appointment from the eligible list if, for example, in the opinion of the appointing power, the character of the applicant was less than desirable. See Pa. Stat. Ann. Tit. 71 § 741.501; Commonwealth ex rel. Graham v. Schmid, 333 Pa. 568, 578, 3 A. 2d 701 (1938). Consequently since no one, including veterans, is "entitled" to public employment as the result of scoring highest in the test, plaintiff has only been denied the opportunity to be considered equally with veterans.
While it was once true that the state possessed all the rights of a private employer and, therefore, encountered no restrictions under the 14th Amendment in the area of public employment, see Heim v. McCall, 239 U.S. 175, 60 L. Ed. 206, 36 S. Ct. 78 (1915), it is no longer the case. In recent years, this right-privilege distinction which served as a limitation on the substantive and procedural due process due an employee in the public sector has been seriously eroded, if not rejected. See e.g. Pickering v. Board of Education, 391 U.S. 563, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968); Greene v. McElroy, 360 U.S. 474, 3 L. Ed. 2d 1377, 79 S. Ct. 1400 (1959); Slochower v. Board of Higher Education, 350 U.S. 551, 100 L. Ed. 692, 76 S. Ct. 637 (1956); Wieman v. Updegraff, 344 U.S. 183, 97 L. Ed. 216, 73 S. Ct. 215 (1952). See generally, Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 Harv. L. Rev. 1439 (1968). For example, a state may not condition public employment upon the surrender of a constitutional right. See Keyishian v. Board of Regents, 385 U.S. 589, 17 L. Ed. 2d 629, 87 S. Ct. 675 (1967); Shelton v. Tucker, 364 U.S. 479, 5 L. Ed. 2d 231, 81 S. Ct. 247 (1960); Wieman v. Updegraff, 344 U.S. 183 supra. Nor may the state in determining whom to admit to public employment, classify individuals as eligible or ineligible where the basis of such classification is "arbitrary or discriminatory." Slochower v. Board of Higher Education, 350 U.S. supra. However, while it is one thing to say that public employment may no longer be subject to unlimited conditions in a due process sense, it is another to say that the abstract right to be fairly considered for public employment is a fundamental right for purposes of equal protection analysis. The concepts used and the cases applicable in making an equal protection analysis are quite different from those used in answering a due process question. None of the cases cited above, nor any brought to our attention by plaintiff have held that there is a bare fundamental right to public employment. All of the cases which have talked of the need for compelling state interests in connection with state employment practices have either involved other constitutional rights, such as first amendment freedoms, or have dealt with the exclusion or dismissal of people from public employment on arbitrary grounds without proper due process procedures.
Moreover, those fundamental rights which have been recognized by the Supreme Court for application of the stricter equal protection standard are those which tend to penalize the exercise of a right expressly safeguarded by the Constitution, e.g. Sherbert v. Verner, 374 U.S. 398, 10 L. Ed. 2d 965, 83 S. Ct. 1790 (1963) (free exercise of religion); Reynolds v. Sims, 377 U.S. 533, 12 L. Ed. 2d 506, 84 S. Ct. 1362 (1964) (right to vote); McLaughlin v. Florida, 379 U.S. 184, 13 L. Ed. 2d 222, 85 S. Ct. 283 (right to be free from racial discrimination); Shapiro v. Thompson, supra (right to travel). These cases represent a recognition of established constitutional rights which are to be given "no less protection than the Constitution itself demands." Shapiro v. Thompson, 394 U.S. supra at 642 (Stewart, J., concurring). As was pointed out in Koelfgen v. Jackson, Civ. Action 4-71-314, 355 F. Supp. 243, (D. Minn. Sept. 20, 1972), a case which recently upheld the constitutionality of a similar veterans' preference statute in Minnesota:
"[Courts] should be reluctant to find a right to be 'fundamental,' unless it is clearly set out in the Constitution. By so finding, the Court subjects legislation affecting that right to much closer scrutiny, a situation which invites conflict between the courts and the legislature. This type of conflict should be avoided except when a right which is clearly at the foundation of our system of government is involved. Only then should the legislature's considered judgment be subject to the 'compelling state interest' test. The 'right to be fairly considered for public employment,' as the term is used by the plaintiffs, clearly is not such a 'fundamental right.'"