Paul A. Stern v. Tarrant County Hospital District v. George J. Luibel

ALVIN B. RUBIN, Circuit Judge,

with whom

CLARK, Chief Judge, POLITZ, TATE, and JOHNSON, Circuit Judges, join dissenting:

The majority opinion refuses to prevent a state agency from discriminating against osteopathic physicians in favor of allopathic physicians in defiance of state law. In so doing, it disregards both the plain language of the fourteenth amendment and the historic reasons for its enactment, for the equal protection clause forbids, and was intended to forbid, a state to purposefully and arbitrarily deny to one class of persons the protection of a state law that it affords to another class of persons.

The majority, in addition, accords to the conclusions of a board of directors of a hospital district the same deference it extends to the enactments of a state legislature. It attaches the same presumptive validity to the decisions of every state agency, however petty or limited in its jurisdiction, that is extended to formal enactments of state statutes. In so reasoning, the majority disregards findings of fact directly contrary to the conclusion it reaches and fails to heed the mandate of rule 52(a) of the Federal Rules of Civil Procedure, adroitly sidestepping the rule’s applicability by labeling the facts on review as “legislative” rather than “adjudicative.” I must, therefore, respectfully dissent.

I.

The fourteenth amendment forbids any state to “deny to any person within its jurisdiction the equal protection of the laws.” The amendment was not needed to ensure that the states provide equal protection of federal laws, for the text of the original Constitution makes federal law the supreme law of the land, “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” 1 The equal protection clause was needed and was intended to assure that the states afford to all persons the equal protection of their *1062 own laws. The Supreme Court certainly takes this view, for in Monroe v. Pape, it said of section 1983:

It is abundantly clear that one reason the legislation was passed was to afford a federal right in federal courts because, by reason of prejudice, passion, neglect, intolerance or otherwise, state laws might not be enforced and the claims of citizens to the enjoyment of rights, privileges, and immunities guaranteed by the Fourteenth Amendment might be denied by the state agencies. 2

The majority seizes upon the single word “and” in this passage from Monroe and then asserts that federal equal protection is denied only when a state’s failure to enforce its laws also constitutes a denial of a right, privilege or immunity secured by the Constitution. This is an unwarranted and unprecedented reading. The fourteenth amendment forbids the states either to “make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” or to “deprive any person of life, liberty, or property, without due process of law” or “to deny to any person within its jurisdiction the equal protection of the laws.” The sentence from Monroe v. Pape was not intended to limit the shield of the civil rights legislation to state action that denies both equal protection and citizenship privileges and immunities. Indeed, as that opinion continues, “It is no answer that the State has a law which if enforced would give relief. The federal remedy is supplementary to the state remedy____” 3

“It was not the unavailability of state remedies but the failure of certain states to enforce the laws with an equal hand that furnished the powerful momentum behind the ‘force bill,’ ” Monroe v. Pape 4 continues. “While one main source of the evil — perhaps the leading one — was the Ku Klux Klan,” the Court states, “the remedy created was not a remedy against it or its members but against those who representing a state in some capacity were unable or unwilling to enforce a state law____ There was, it was said, no quarrel with the state laws on the books. It was their lack of enforcement that was the nub of the difficulty.” 5 As Senator Howard, one of the sponsors of the amendment, stated, the purpose of the equal protection clause was to prohibit the states from

denying to [any person] the equal protection of the laws of the State. This [clause] abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another. 6

Before adoption of the fourteenth amendment, the states were not required by the Constitution to provide either due process or equal protection. The Bill of Rights, Chief Justice Marshall wrote in 1833, was “intended solely as a limitation on the exercise of power by the government of the United States, and is not applicable to the legislation of the states.” 7 The thirteenth amendment, which prohibited involuntary servitude, had been adopted in 1868. Some states responded by enacting laws that discriminated, either explicitly or implicitly, against the former slaves, for example, by the use of grandfather clauses. Many states also enforced apparently neutral laws in a discriminatory manner: crimes that were explicitly forbidden by state law were condoned when committed by whites against blacks.

To combat both kinds of discrimination, Congress enacted, over the veto of President Andrew Johnson, the first civil rights *1063 laws. There was doubt, however, whether Congress had the power to adopt these laws, and President Johnson had given the unconstitutionality of the legislation 8 as one reason for his veto. “Immediately pressing to [the fourteenth amendment] sponsors was the desire to provide a firm constitutional basis for the already enacted civil rights legislation.” 9 Congress sought, in addition, to amend “the Constitution to place repeal beyond the accomplishment of a simple majority in a future Congress.” 10

While a major purpose of the equal protection clause was to prevent discrimination against blacks, it was not, as we know, confined to requiring equal treatment of the races for it assures equal protection of the laws to all “persons.” Thus, the purpose of the equal protection clause of the fourteenth amendment was to forbid both kinds of unequal state action: the enactment of discriminatory laws and the discriminatory administration or enforcement of laws that were not themselves discriminatory.

The jurisprudence, however, has been concerned almost entirely with discriminatory laws, that is, with determining whether laws that are nondiscriminatory on their face are discriminatory in fact and whether classifications expressly drawn by state laws are constitutional. These cases continue to be considered writ-worthy by the Court.

The fact that the legal contest has been concentrated in this area should not, however, cause us to neglect consideration of the amendment’s plain, but “majestically unconfined,” 11 language. In 1880, when the history and purpose of the fourteenth amendment were known to every justice, the Supreme Court interpreted the equal protection clause to prohibit discriminatory application of state law by a judge who excluded blacks from a jury because, in part, this was “outside his authority and in direct violation of the spirit of the State statute. That statute gave him no authority, when selecting jurors ... to exclude all colored men merely because they were colored. Such an exclusion was not left within the limits of his discretion.” 12

While that case involved the criminal portions of the Civil Rights Acts and racial discrimination, its rationale was not based on the later-developed differential scrutiny theory but on the simple thesis that it was a denial of equal protection for a state agent to discriminate against a class of people in violation of state law. Similarly, in dicta, a circuit court sitting in Alabama in 1871 said in United States v. Hall: 13

[T]he fourteenth amendment not only prohibits the making or enforcing of laws which shall abridge the privileges of the citizen, but prohibits the states from denying to all persons within its jurisdiction the equal protection of the laws. Denying includes inaction as well as action, and denying the equal protection of the laws includes the omission to protect, as well as the omission to pass laws for protection.

A state official who intentionally treats two classes of people differently in the face of a valid state law that implies equal treatment violates the equal protection guarantee. A century ago in Yick Wo v. Hop kins, 14 the Court held unconstitutional the administration of a municipal ordinance that denied “a particular class of persons,” Chinese laundry owners, permits that were *1064 granted to others who were not Chinese. The ease presented here involves an even more egregious denial of equal protection — intentional discrimination in defiance of a state law that exacts, not merely implies, equal treatment. The majority opinion agrees that Texas law requires two classes of persons, doctors holding the M.D. degree and doctors holding the D.O. degree, to be treated alike. The majority opinion agrees that the Tarrant County Hospital District has violated that law and, at least inferentially, accepts the conclusion that this discrimination between the two classes of persons is purposeful. This, I submit, is enough to make the Hospital District’s action a denial of equal protection.

The majority opinion relies upon a lengthy quotation from Snowden v. Hughes. 15 But it fails to include another statement of the Snowden court that directly conflicts with the rationale the majority opinion espouses. At the outset of its discussion of the equal protection clause in Snowden, the Supreme Court said:

The unlawful administration by state officers of a state statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination. 16

“This [discrimination] may appear on the face of the action taken with respect to a particular class or person,” the Court continued, “or it may only be shown by extrinsic evidence showing a discriminatory design to favor one individual or class over another not to be inferred from the action itself____” 17 Snowden himself did not qualify for the equal protection guarantee because he did not even allege “a purposeful discrimination between persons or classes of persons.” 18 “So far as appears the [Illinois State] Board’s failure to certify petitioner was unaffected by and unrelated to the certification of any other nominee,” 19 the Court said. Absent such purposeful discrimination between classes of persons, the Illinois State Board’s action was not a denial of equal protection of the law.

The majority’s reliance on the opinion in Oyler v. Boles, 20 a discriminatory prosecution case, is no more justified. As the majority’s quotation notes, and disregards, the Supreme Court there held that selective law enforcement “is not in itself a federal constitutional violation” unless “the selection was deliberately based upon an unjustifiable standard such as [but, I suggest, not limited to] race, religion, or other arbitrary classification.” 21

The scope and applicability of the equal protection clause are, of course, determined by federal standards. The validity of the Texas statute being unchallenged, discrimination in its administration violates the federal constitution.

II.

The majority opinion starts with a bland statement of law: rational state action does not violate the equal protection clause simply because it violates a state anti-discrimination statute. The action of the Tarrant County Hospital District is not so innocuous. Stating the rule in this fashion begs the questions put by this case: whether there is in fact a rational basis for the state action and whether a subordinate state agency acts rationally when it defies state law and discriminates against one class of persons while favoring another.

The state or a state agency may, without denying equal protection, make a distine *1065 tion between two classes of persons if the purpose of making the distinction is lawful and the distinction is rationally related to a legitimate state purpose. Once, however, the state adopts a statute affirmatively requiring that two classes of persons be treated alike, a state agency may not decree either lawfully or rationally that, despite what the legislature says, it is still going to discriminate. I suggest that it is ;per se not only unlawful, but arbitrary and capricious, hence not rational, for a state agency intentionally to create a discriminatory classification forbidden by a valid state law.

The state did not grant Tarrant County Hospital District any discretion to consider, with respect to a physician’s qualifications, the nature of the physician's medical degree, allopathic or osteopathic. This case, therefore, presents a situation distinguishable from that typically found in “selective enforcement” cases. In such cases, state law often accords state agencies, such as zoning or liquor licensing boards, a great deal of discretion. This case is different. To prevail on equal protection grounds, the plaintiff here need only show that (1) he is a member of a class of persons who have been discriminated against on the basis of their membership in that class; (2) members of other classes, otherwise similarly situated, have been treated differently; and (3) the discriminatory treatment was purposeful.

The actions of the Tarrant County Hospital District were patently discriminatory and were taken in violation of a state statute that denied it any discretion. Its actions obviously did not further what the state legislature had determined to be a legitimate state purpose. The District purposefully denied to osteopaths the protection of the law it granted to allopaths. 22 In so doing it denied plaintiffs the equal protection of state law, and this in turn constituted a violation of the constitutional guarantee of equal protection.

The majority concedes the “seeming logical force” 23 of this analysis by what first year law students will recognize as the slippery slope argument: to accept the thesis might lead to dread consequences. Violation of a state equal rights amendment might be a federal constitutional violation. That contention, however, portends no disaster. Purposeful discrimination by a state agency against a class of persons in order to favor another class in deliberate disregard of a valid state law — even (or perhaps especially) an equal rights law — constitutes a denial of equal protection.

The action of the Tarrant County Hospital District was not merely a violation of state law that might be remedied in the state courts. It was also a violation of the Constitution. A federal court, district or appellate, cannot ignore its duty simply because an alleged constitutional violation may also be contrary to state law or because the constitutional claim may require the court “to engage in a complex and extended analysis” 24 of a “typically broad and vague state law.” 25

III.

The majority opinion rests on the premise that the Hospital District acted rationally in pursuit of a legitimate state purpose. Rationality, however, is not a purely subjective judgment. “Rational” means “based on reason.” Reason rests on facts. The action of the Hospital District was, as the district court found, unreasonable. Based on testimony adduced before it, not merely on conjecture as to possible reasons for the District’s action, the court concluded that, for purposes of admission to practice in the hospital, no significant differences existed between the post-graduate training of allopaths and osteopaths.

As the majority opinion notes, the district court found that the Hospital District’s dif *1066 ferent treatment of allopaths and osteopaths was not founded on a “reasonable basis such as professional and ethical qualifications for the common good of the public or the hospital itself.” 26 “It is conceded,” the majority states, “that the facts allow only the conclusion that allopathic and osteopathic training programs have similar course requirements and content, and that graduates face identical testing and licensing requirements.” 27 And it adds, “[w]e find no fault with the district court opinion in this respect.” 28 Nevertheless, the majority opinion ignores all of these facts on the basis that, if the legislature might validly have discriminated against osteopaths, the Hospital District may do so — without regard to the facts.

The majority opinion does not even mention Fed.R.Civ.P. 52(a), which requires that the facts found by a district court are to be accepted on appeal unless clearly erroneous. Whether there is a rational basis for treating differently two classes of persons must, I submit, turn on the facts distinguishing these classes as shown by the evidence. The majority seeks to justify its disregard of the evidence and the fact findings by asserting that the validity of the discrimination against osteopaths is to be determined by something called “legislative” facts rather than “adjudicative” or historical facts. But “legislative” facts, it turns out, are not facts at all. They are, in this instance, assumptions utilized to uphold the state agency’s disregard of the facts. District courts are apparently not to take evidence when the actions of inferior state agencies are challenged, but are instead only to determine whether there is “any conceivable basis for the [agency’s] implicit legislative judgment.” 29 The agency’s mind having been made up, neither the agency nor the court is to be confused by the facts, and the court is to evaluate only the agency lawyer’s post-hoc suggestion of a conceivable basis that might have been in the agency’s mind — even if it was not.

Even when factual findings are of constitutional importance and an appellate court is not bound by rule 52(a), the appellate court undertakes to review the facts independently. The Supreme Court and this court do not hypothesize but determine the facts from the evidence. 30

We have repeatedly rejected the suggestion that the actions of a federal administrative agency might be validated on the basis of rationalizations developed by counsel. 31 While we presume valid and accord deference to determinations made by state legislatures, 32 we do so at least in part because the legislature is the highest state law-making agency, elected by a democratic process, enacts statutes in a deliberative manner, and its enactments become law only if approved by the state’s highest executive or reenacted by a substantial majority over his veto. In New Orleans v. Dukes, 33 this deference was extended to a municipal ordinance, adopted in legislative fashion, in which the city’s objective in enacting the ordinance was clearly identified. But as Justice Powell said in dissenting from the Court’s opinion in Schweiker v. Wilson, 34 “The deference to which legis *1067 lative accommodation of conflicting interests is entitled rests in part upon the principle that the political process of our majoritarian democracy responds to the wishes of the people.” No similar deliberations are exacted of appointed state agencies and no similar deferential presumption of constitutionality attends their actions. Deference of this extreme sort is hardly due to the decision of a hospital board, a majority of whose members are allopathic physicians, made without hearings or evidence, to exclude osteopathic physicians. Instead, it seems to me, we should view such self-serving decisions with at least some measure of skepticism.

Justice Powell has said, “when a legislative purpose can be suggested only by the ingenuity of a government lawyer litigating the constitutionality of a statute, a reviewing court may be presented not so much with a legislative policy as its absence.” 35 Moreover, at least one fact that is undoubtedly legislative cannot be ignored: The Texas state legislature has declared unlawful what its creature, the Tar-rant County Hospital District, has chosen to do. Even if this is not decisive, it is a fact that must be considered in determining both the rationality of the District’s actions and whether its actions are to be accorded the deference given a state legislature’s deliberate enactments.

The majority opinion puts the Constitution at the mercy of every petty state agency if only its lawyers can submit a thesis, unsupported by factual evidence, that might support constitutionality. The opinion cannot be supported by the Supreme Court decision in Hayman v. City of Galveston, 36 for evidence of the kind here presented was not in the record before that Court.

The opinion in Hayman, moreover, rested at least in part on the conclusion that the action of the Galveston Hospital Board in discriminating against osteopaths did not violate the Texas constitutional provision that forbids any preference to “be given by law to any schools of medicine.” 37 The Court found that the state constitutional limitation was directed only to the qualifications of those to be admitted to medical practice in the state and did not limit consideration of medical practitioners’ qualifications to practice in a state hospital. 38

Since Hayman significant changes have occurred in the education, training, and licensing of osteopaths and in Texas law. That state action was not arbitrary under facts existing a half century ago does not make it rational today. The decision of a panel of this court in Berman v. Florida Medical Center, Inc. 39 is no more confining, for that case dealt with a private hospital and did not involve state action.

IV.

The fourteenth amendment forbids the state and its agencies to discriminate against any class of persons. It is a bulwark against prejudice, against state action that condemns without rational basis. The clause was adopted to assure not only that states enact nondiscriminatory laws but also that they administer state law equally and fairly. The majority opinion refuses to apply the literal mandate of the Constitution and ignores the history that led to its enactment. It condones the bigotry of an allopathic-dominated state hospital district that refuses to be bothered by either the state law, the federal constitution, or the facts.

. U.S. Const, art. VI, cl. 2.

. 365 U.S. 167, 180 , 81 S.Ct. 473, 480 , 5 L.Ed.2d 492, 500 (1961) (emphasis added).

. Id. at 183 , 81 S.Ct. at 482 , 5 L.Ed.2d at 503 .

. 365 U.S. 167, 174-75 , 81 S.Ct. 473, 477 , 5 L.Ed.2d 492, 498 (1961) (emphasis added).

. Id. at 176 , 81 S.Ct. at 478 , 5 L.Ed.2d at 499 (added in original).

. 6 C. Fairman, History of the Supreme Court of the United States — Reconstruction and Reunion 1864-88, at 1925 (1971) (emphasis added).

. Barron v. Mayor and City Council of Baltimore, 32 U.S. (7 Pet.) 243, 8 L.Ed. 672 (1833).

. See Schnapper, Affirmative Action and the Legislative History of the Fourteenth Amendment, 71 Va.L.Rev. 753, 785-86 (1985).

. Congressional Research Service, Library of Congress, The Constitution of the United States of America — Analysis and Interpretation 1470 (1973).

. Congressional Research Service, supra note 5, at 1471.

. Ex Parte Virginia, 10 Otto 339 , 100 U.S. 339, 348 , 25 L.Ed. 676 (1880) (emphasis added).

. 26 F.Cas. 79, 81 (C.C.S.D.Ala.1871) (No. 15,-282).

. 118 U.S. 356, 374 , 6 S.Ct. 1064 , 1073, 30 L.Ed.2d 220 , 228 (1886).

. Id.

. 321 U.S. 1 , 64 S.Ct. 397 , 88 L.Ed. 497 (1944).

. Id. at 8 , 64 S.Ct. at 401 , 88 L.Ed. at 502 (emphasis added).

. Id., 64 S.Ct. at 401 , 88 L.Ed. at 502 (citations omitted).

. Id. at 10 , 64 S.Ct. at 402 , 88 L.Ed. at 504 .

. Id., 64 S.Ct. at 402 , 88 L.Ed. at 504 .

. 368 U.S. 448 , 82 S.Ct. 501 , 7 L.Ed.2d 446 (1962).

. Id. at 456 , 82 S.Ct. at 506 , 7 L.Ed.2d at 453 .

. Cf. Ex Parte Virginia, 10 Otto 676 , 100 U.S. 339, 348 , 25 L.Ed. 676 (1880).

. Majority opinion, p. 1059.

. Majority opinion, p. 1059 n. 2.

. Majority opinion, p. 1059.

. Stern v. Tarrant County Hosp. Dist., 565 F.Supp. 1440, 1454 .

. Majority opinion, p. 1060.

. Majority opinion, p. 1060.

. Majority opinion, p. 1060.

. Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485 , 104 S.Ct. 1949 , 80 L.Ed.2d 502 (1984); Jones v. Diamond, 636 F.2d 1364 , 1370 & n. 7 (5th Cir.1981); see also Cousins v. City Council, 466 F.2d 830 , 837 (7th Cir.), cert. denied, 409 U.S. 893 , 93 S.Ct. 85 , 34 L.Ed.2d 151 (1972).

. See, e.g., United States v. New Orleans Public Service, 723 F.2d 422, 428-29 (5th Cir.1984).

. See, e.g., Home Depot, Inc. v. Guste, 773 F.2d 616 (1985).

. 427 U.S. 297, 304 , 96 S.Ct. 2513, 2517 , 49 L.Ed.2d 511, 517 (1976).

. 450 U.S. 221, 243 , 101 S.Ct. 1074, 1087 , 67 L.Ed.2d 186, 203 (1981); cf. Regents of the University of California v. Bakke, 438 U.S. 265, 309 , 98 S.Ct. 2733, 2758 , 57 L.Ed.2d 750, 783 (1978); see also Kramer v. Union Free School Dist., No. 15, 395 U.S. 621, 639 , 89 S.Ct. 1886, 1895-96 , 23 L.Ed.2d 583, 596 (1969) (Steward, J. dissenting).

. Schweiker v. Wilson, 450 U.S. 221, 243 , 101 S.Ct. 1074, 1087 , 67 L.Ed.2d 186, 203 (1981).

. 273 U.S. 414 , 47 S.Ct. 363 , 71 L.Ed. 714 (1927).

. Tex. Const, art. 16 § 31.

. 273 U.S. at 418 , 47 S.Ct. at 364 , 71 L.Ed. at 417 .

. 600 F.2d 466 (5th Cir.1979).