Nevertheless the teachers yielded to the insistence of their principals and retired. They could have sued their employers, the school districts, for violation of the federal law, but they did not and it is now too late. The EEOC, however, argues that the state itself violated the age discrimination law by failing to repeal the offending provision of the school code immediately or at least to notify every school district that the provision was invalid and unenforceable, and is therefore liable to the teachers. The EEOC advances two theories of the state's liabil- ity. It does not separate them clearly in its presentation, but they are analytically distinct.
Indirect employment is a more limited theory of liability than aiding and abet- ting.
A consultant who advised an employer on how to get rid of its older employees without creating evidence of a violation of the age discrimination law would be an aider and abettor but not an indirect employer, for he would not control the employment relationship, as the hos- pitals in the Sibley and Doe cases did. It would make no difference in this case. Comity and common sense preclude us from indulging such an assumption. Had the state insisted, in defiance of the supremacy clause, that the school districts comply with the preempted provision of the state's school code on pain of losing state aid, this would have been active aiding and abetting, though a competently counseled school district would have told the state to go fly a kite. It is not our case.