Petition — Tyler v. Vickery

| Supreme Court, U. &

FILED

JAN 20 1976

No. 7§-/0 26

DAK, JR., CLERK

Supreme Court of the Hnited States

October Term, 1975

EUGENE WILSON TYLER, Petitioner,

v.

TRAMMELL E. VICKERY, ET AL., Respondents

RALPH BANKS, /R., Petitioner

Vv.

TRAMMELL E. VICKERY, ET AL., Respondents.

JAMES E.C. PERRY, ETAL., Petitioners,

v.

EDWARDS. SELL, /R., ET AL., Respondents.

PETITON FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

RAY P. McCLAIN

ARMAND DERFNER

P.O. Box 608

Charleston, S. C. 29402

OF COUNSEL:

JOHN H. RUFFIN, JR.

C.B. KING

THOMAS M. JACKSON

BOBBY L. HILL

MARVIN S. ARRINGTON

BENJAMIN SPAULDING

SARAJANE LOVE

LAUGHLIN McDONALD

NEIL BRADLEY

52 Fairlie Street, N.W.

Atlanta, Georgia 30303

MELVIN L. WULF

E. RICHARD LARSON

22 East 40th Street

New York, N. Y. 10016

COUNSEL FOR PETITIONERS

INDEX

Page

Cs bids ddddec tiveness Che iv 2

Ds wt oecnurees0006 40s tush biedwientaees danas 2

I Pe eae Se Pee re re ee Te 2

Constitutional and Other Provisions Invoived.............. 3

ee a iid e's 6. nd wns eves bekoulsslriseel 4

PeRNSOS Tor GPRS GOO TRS 6 dco c'n 0 0c ccveessceuenes 7

CD oo 600 kN Gate nes v9 Oks 0084 en ees 15

Appendix

Opinion of the United States Court of Appeals

Gat GD Free ae ode ocbws So be Oeulessesikod la

GuGar GH CS 0 0 ici aCe eine dans we ee eke 23a

Opinion of the United States District Court

for the Northern District of Georgia.............. 24a

Opinion of the United States District Court

for the Northern District of Georgia,

SOON GA. 6 6. i's Oa Vite hak be otsiswwelnens cbWen 33a

Opinion of the United States District Court

for the Northern District of Georgia,

Veen GO, Vee ce Ceceweceacuracecnteadceeers 35a

Opinion of the United States District Court

for the Northern District of Georgia,

Banks v. Miller (Vickery). ..........0cceeseevees 44a

TABLE OF CITATIONS

Page

Cases: :

Adickes v. S.H. Kress andCo., 398 U.S. 144 (1970)....... 14

Albemarle Paper Co. v. Moody, U.S. __,

eee 7,8,9, 10, 11

Alexander v. Louisiana, 405 U.S. 625 (1972) ...........4.. 13

Allen v. City of Mobile, 331 F. Supp. 1134

(S.D. Ala. 1971), aff’d per curiam, 466

Pe CT, UE os cco eseecccecescececcencs 11

Arnstein v. Porter, 154 F.2d 464 (2d Cir. 1946)........... 13

Avery v. Georgia, 345 U.S. 559:(1953)........0e cece eee 13

Baker v. Columbus Municipal Separate School

District, 462 F.2d 1112 (Sth Cir 1972) ...........005. 10

Bridgeport Guardians, Inc. v. Members of

Bridgeport Civil Service Com’n, 482 F. 2d

SEL WIPE o's Seiibecfecesscsccccccccced 6,10

Carter v. Gallagher, 452 F. 2d 315 (8th Cir.

1971) mod. 452 F. 2d 327 (1972)(En banc),

cert. denied, 406 U.S. 950 (1972) .... 2... . cece eee eee 8

Castro v. Beecher, 459 F.2d 725 (1st Cir. 1972)....... 8,9, 10

Chance v. Board of Examiners, 458 F.2d 1167

A ee eee 8,9, 10

Coleman y. Alabama, 389 U.S. 22 (1967)(per

Pie ei eee nen eeecoecccoceseces 13

Dandridge v. Williams, 397 U.S. 471 (1970).............. 11

Davis v. Washington, 512 F.2d 956 (D.C. Cir.),

cert. granted, U.S. , 46 L.Ed.2d

stir See Set eGE EWS seocavesseccoccees 8

Douglas v. Hampton, 512 F.2d 976 (D.C. Cir. 1975)... .5,8,9

Foster v. Sparks, 506 F.2d 805 (Sth Cir. 1975)............ 13

Fuentes v. Shevin, 407 U.S. 67 (1972) ......... 000 aes 14, 15

G. Juldig v. Aiello, 417 U.S. 484 (1974). ... 2.2.0.2. 0 2 eee 11

Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975)........ 11

Goss v. Lopez, 419 U.S. 565 (1975) ..........-005. 8, 14,15

Griggs v. Duke Power Co., 401 U.S. 424 (1971) ........ 7,8,9

i i i EE os ccc cc ccocseseecees 13

James v. Valtierra, 402 U.S. 137 (1971) .......... 0c e ees 11

Jefferson v. Hackney, 406 U.S. 535 (1972). ..........0055 11

Jones v. Georgia, 389 U.S. 24 (1967)(per curiam).......... 13

McDonnell Douglas Corp. v. Green, 411 U.S. 792

EE en eee 10

Norris v. Alabama, 294 U.S. 587 (1935). ........ 0.00 e ee 13

Palmer v. Thompson, 403 U.S. 217 (1971). ..........004. 13

Page

Police Department of the City of Chicago

BR SR) eer 10

Poller v. Columbia Broadcasting Company,

ee es a cat od dels Keb sccdvebbceces 13

POSS VU. TERE, Gare ees FE COUPE 0 cd cscdccocewecscbeces 10

Rogers v. International Paper Co., 510 F. 2d

— SE ey ae 5

Sartor v. Arkansas National Gas Corp., 321.

A oe EEG ee eee de as See eee 13

Schware v. Board of Examiners, 353 U.S. 232

Ne Se OE i es cd sw cin da eeen 14

Snowden v. Hughes, 321 U.S. 1 (1943)..............005. 13

Swain v. Alabama, 380 U.S. 202 (1965)................. 13

Turner v. Fouche, 396 U.S. 346 (1970) ................. 13

United States v. North Carolina, 400 F. Supp.

343 (E.D.N.C. 1975)(three-judge court) ........... 10,12

Walston v. County School Board, 492 F.2d 919

Sy PS b hehe eo backed eknasseeansede 8,9,10

Constitutional Provisions:

Re SS occ cccccceeerse eee leh beoercecees 8

i Mis tees eubeue saeteeus 3,6,9,11,14

Statutes:

United States Code

och canted atcbnedsabuknale 2

BR ree Lae 4

Sins 6656 baamhadenteandces ceed 4

eT ns Sonia ccentesduveddaveduonnl 4

Seba cbensdsadesudereeseons 3,4

Other Authorities:

American Psychological Association, Standards

for Educational and Psychological Tests and

I cS au se caclchcd tcc doekabenel 4,11

Code of Federal Regulations, Title 29,

Se OY ON 5 4 ck whidenetubess veedersoce neue 10

Gunther, The Supreme Court, 1971 Term - -

Forward: In Search of Evolving Doctrine

on a Changing Court: A Model for a Newer

Equal Protection, 86 HARV. L. REV. 1 (1972) ...... 10

Moore’s Federal Practice, par. 56.15[4].......-....5+- 13

Anpreme Court of the Hnited Ptates

October Term, 1975

No.

EUGENE WILSON TYLER, Petitioner,

V.

TRAMMELL E. VICKERY,

JESSIE G. BOWLES, JAMES

LANGFORD, EDWARDS. SELL,

and T. HEYWARD VANN, Respondents.

RALPH BANKS, |R., Petitioner,

v.

TRAMMELL E. VICKERY,

JESSIE G. BOWLES, JAMES

LANGFORD, EDWARD S. SELL,

and T. HEYWARD VANN, Respondents.

JAMES E. C. PERRY, JACK LaSONDE, MARVIN

NATHANIEL CLARK, BEN THOMAS COLE, JACQUELIN

DIANNE BENNETT, MELVIN ROBINSON, RONALD

STEWARD, MARVIN MANGHAM, jJR., CECIL PACE,

THOMAS F. BINGLEY, THULANT WALTER GCABSHE,

JOSEPH ARRINGTON, OLIN L. ALEXIS and TIMOTHY

SOLOMON, _ individually and on behalf of all others similarly

situated and the NATIONAL BAR ASSOCIATION, INCOR-

PORATED, Petitioners,

Vz

EDWARD S. SELL, JR., T. HEYWARD VANN, TRAMMELL

E. VICKERY, SCOTT S. EDWARDS, JR., and JESSIE G.

BOWLES, individually and in their official capacities as Exam-

iners of the Georgia State Board of Bar Examiners, BARBARA

J. PRICE, THERON BURGESS, BEN P. AXSON, and

HILLARY H. MANGUM, individually and in their offical capa-

cities as Clerk of the Superior Court of Fulton, DeKalb,

Chatham and Richmond Counties, Georgia, respectively, and as

representatives of all other Clerks of Georgia Superior Courts

similarly situated, Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioners pray that a writ of certiorari issue to review

the judgment of the United States Court of Appeals for the

Fifth Circuit entered in the above-styled cases.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Fifth Circuit in these consolidated cases is reported at

517 F.2d 1089 and is appended hereto at la. The denial of

the petition for rehearing and suggestion for rehearing en banc

is noted at 521 F.2d 814 and 815, and is appended hereto at

23a. The opinion of the United States District Court for the

Northern District of Georgia is unreported and is appended

hereto at 24a. The opinions of the district court defining the

class, and granting partial summary judgment in /yler v.

Vickery and Banks v. Miller (Vickery) are also unreported and

appended hereto at 33a, 35a and 44a, respectively.

JURISDICTION

The opinion of the United States Court of Appeals for

the Fifth Circuit was entered on August 20, 1975. A timely

petition for rehearing and suggestion for rehearing en banc was

denied on September 26, 1975. By order of Mr. Justice Powell,

Circuit Justice, the time for petitioning for a writ of certiorari

to review the judgment below was extended to and including

January 20, 1976. This Court has jurisdiction to review the

judgment below under 28 U. S. C.§1254(1).

QUESTIONS PRESENTED

1. Whether the equal protection clause of the fourteenth

amendment to the constitution requires that a state-imposed

occupational selection test that has a-marked, undisputed

adverse impact on minority applicants, be demonstrated to be

related to job performance.

2. Whether it was error to grant summary judgment

for respondents on the Court’s bare conclusion that the test

“appeared” to relate to part of one aspect of job performance,

where petitioners offered evidence that the respondents had

not proved that the test was job-related in fact.

3. Whether evidence that the state officials had for

many years excluded a disproportionately high percentage of

black applicants for the bar, and had never investigated the

reasons for this rate of exclusion, established a prima facie case

of purposeful discrimination in violation of the equal protec-

tion clause of the fourteenth amendment, thus requiring a trial

on the merits.

4. Whether the due process clause of the fourteenth

amendment requires that an applicant be given an opportunity

to challenge errors in the test score assigned to him.

CONSTITUTIONAL AND OTHER PROVISIONS INVOLVED

United States Constitution, Amendment Fourteen:

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof,

are citizens of the United States and of the State where-

in they reside. No State shall make or enforce any law

which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State de-

prive any person of life, liberty, or property, without

due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

United States Code, Title 42, Section 1983:

Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State or

Territory, subjects, or causes to be subjected, any citizen

of the United States or other person within the juris-

diction thereof to the deprivation of any rights, priv-

ileges, or immunities secured by the Constitution and

laws, Shall be liable to the party injured in an action at

law, suit in equity, or other proper proceedings for

redress.

STATEMENT OF THE CASE

Petitioners brought these actions in the federal district

court pursuant to 42 U.S.C. §§1981 and 1983, founding juris-

diction on 28 U.S.C.§§1331, 1343(3) and 1343(4). Each action

challenged the practices of the bar examiners of the State of

Georgia as racially discriminatory and arbitrary, in violstion of

the equal protection and due process clauses of the fourteenth

amendment. One case, Perry v. Sell, was certified by the

district court as a class action on behalf of all unsuccessful black

applicants and all future black applicants. 33a. The district

court granted respondents’ motion for summary judgment in

all of the consolidated cases. On appeal, a majority of the

court of appeals affirmed the order granting summary judg-

ment, one judge dissenting.

In evidence presented in opposition to the motion for

summary judgment, petitioners showed that the Georgia bar

examiners had, for many years, consistently failed a higher

proportion of black applicants than white, including failing all

forty-one black applicants on the July, 1972,exam;! therefore,

petitioners argued, the bar examiners had a heavy burden of

justification to support the use of a testing procedure that

created, intentionally or unintentionally, such a markedly

adverse impact on minority applicants. Petitioners argued

that the respondents could meet their burden of justification

only by reference to scientifically established methods of

evaluating the relation of test scores to occupational perfor-

mance. These scientific testing standards impose two principal

requirements: (1) that a test, such as a bar examination, be

demonstrated to be related to job perfromance, either by

correlation of test scores with ratings of actual job performance

(criterion-related validity, the preferred method), or by com-

parison of items and elements of the test with a comprehensive

analysis of the elements of the job (content validity), and (2)

that the passing score selected has a demonstrable relation to

the purpose of the test.’

1. This group of applicants included graduates of the following !aw schoots:

Harvard (two), Yale (two), Emory (three), Columbia (one), Duke (one), University of

Virginia (one), Notre Dame (one), and University of Georgia (one).

2. Some of these standards are set forth in Guidelines for employment testing

issued by the Equal Employment Opportunity Commission, 29 C.F.R.$1607, and are

described in more detail in American Psychological Association, Standarés for Education-

al and Psychological Tests and Manuals (1974). See Albemarle Paper Co. v. Moody,

__US.___, 45 L.Ed2d 280, 304 n.29.

The testimony offered on the motion for summary judg-

ment showed a sharp dispute on the issues of validity of the

test. The bar examiners testified as to their testing procedures,

and both petitioners andrespondents presented expert witnesses

to evaluate those procedures.’ With respect to the job-related-

ness of the test, expert witnesses for both petitioners and

respondents agreed that a criterion-related analysis of ihe bar

examination was feasible, although no such study has been

done.* Respondents’ expert witness testified that a bar exam-

ination should have “content validity.”> Petitioners’ expert

witness testified that “criterion-related validity” (a more rigor-

ous standard) ought to be demonstrated, and that the record

in these cases does not even establish that the bar examination

has “content validity.” With respect to the passing score, all

bar examiners testified that they set the passing score of “70”

purely as a matter of judgment. Respondents’ expert testified

that judgment alone is not a satisfactory basis for setting a

passing score. Petitioners’ expert witness added (1) that an

empirical study was necessary to establish that the passing

score used was not racially discriminatory, and (2) that the

passing score adopted by defendants represents a significantly

different standard of performance from year to year. Respon-

dents offered no reply to this expert testimony concerning the

passing score.

Petitioners also contended that they had established a

prima facie case of purposeful discrimination by the respondent

bar examiners by showing, among other factors, that a dispro-

portionate percentage of black applicants had been failed by the

bar examiners for many years. Finally, petitioners asserted that

3. For discovery purposes, one expert witness for petitioners was deposed,

and one expert witness for respondents was deposed. Petitioners’ witness also filed

two affidavits. The testimony referred to in this paragraph comes from those sources,

and from the depositions of the respondent bar examiners.

4. Criterion-related test validation has generally been held, both professionally

and judicially, to be the preferred method of showing job-relatedness. Douglas v.

Hampton, 512 F.2d 976, 986 (D.C. Cir. 1975); Rogers v. International Paper Co., 510

F.2d 1340, 1349 (8th Cir. 1975).

5. An examination has “content validity” when “the behaviors demonstrated

in testing constitute a representative sample of behaviors to be exhibited in a’’ job. “An

employer cannot justify an employment test on grounds of content validity if he cannot

demonstrate that the content universe includes ali, or nearly all, important parts of the

job.” A.P.A. Standards, supra note 2, pp. 28, 29.

they were denied due process of law in that they had no oppor-

tunity for a hearing or review of any kind of the assignment of a

failing grade to an applicant. Petitioners presented substantial

evidence of arbitrariness in grading that supported the need for

a hea: ing, including variation from year to year of the level of

test achievement associated with a grade of ‘70’, with no

explanation by the bar examiners for such variations.

The majority of the court below rejected the principal

contention of the petitioners -- that the user of a test that pro-

duces discriminatory results must prove the job-relatedness of

the test -- and held that the equa! protection clause of the

Constitution requires nothing more than ‘hat an examination

“test skills and knowledge which have a ‘logical, apparent

relationship’ [not a demonstrated one] to those necessary”’ to

the job. 14a, 517 F.2d at 1101° All expert testimony was

held to be, as a matter of law, irrelevant to evaluation of the

constitutional claim. With respect to the issue of purposeful

discrimination, the majority below held that direct proof of an

opportunity to discriminate against black applicants was an

essential element of petitioners’ prima facie case. 5a, 517 F.2d

at 1093. Although respondents conceded that the bar

examiners’ staff had information making possible the identi-

fication of applicants by race, the majority accepted the testi-

mony of the examiners and of one member of their staff that

the examiners never scrutinized this information until all grades

were submitted. /dem. On the issue of procedural due process,

the majority held that re-examination was a satisfactory sub-

stitute for a hearing. 16a,517 F.2d at 1103.

Judge Adams, in dissent, appeared to adopt a standard of

review more stringent than a bare “rational relation” test, yet

less severe than requiring a showing of a compelling state

interes. for invidious discrimination resulting from uninten-

tional conduct.’ He concluded, 22a, 517 F.2d at 1108:

6 The majority asserted, incorrectly, that petitioners had conceded this prop-

osition. Petitioners conceded, in their brief, only the limited proposition “that the bar

examination does have a logical, apparent relationship to some aspects of legal knowl-

edge, and legal knowledge is certainly one ingredient of practicing law.” (Brief of

Appellants, p. 23, emphasis supplied.)

7. This is the standard of review described in Bridgeport Guardians, Inc. v.

Members of Bridgeport Civil Service Com’n, 482 F.2d 1333, 1336-37 (2d Cir. 1973),

cited in the dissenting opinion. 20a, 517 F.2d at 1106.

Plaintiffs in this case have established what amounts to

an exclusion from job opportunities of a disproportionate

number of blacks. These facts call for a stricter standard

of review that the standard the majority approves today.

Of even more significance, in a case of this importance

where one of the key factors in determining illegality will

be the evaluation of motive, it seems particularly inap-

propriate to employ the device of summary judgment.

Summary judgment may be used only when no genuine

issues of fact remain unresolved.

The dissenting judge also thought that professional validation

standards should be considered in evaluating the bar examina-

tion, 21a, 517 F.2d at 1107:

The EEOC guidelines for employment testing and the

principles enunciated in Griggs v. Duke PowerCo., —

both of which require a validation of a suspect employ-

ment test — are at least persuasive as to the criteria to be

applied to the Georgia bar examination under the facts

of this case. As plaintiffs point out, the examination here,

although not administered by an “employer” for the

purpose of hiring, is for all practical purposes an

employment test. The applicant who fails it may not, in

any respect, be employed to practice law within the state.

The dissenter finally found that petitioners have proved a suf-

ficient case of purposeful discrimination to avoid summary

judgment. 20a, 517 F.2d at 1106.

REASONS FOR GRANTING THE WRIT

This Court should grant certiorari because the judgment

below is in sharp conflict with the principles governing tests

that control access to employment as announced in several

opinions of this Court, A/bemarle Paper Co. v. Moody __ U.S.

__, 45 L.Ed.2d 280 (1975); Griggs v. Duke Power Co., 401

U.S. 424 (1971), and as construed by all the five other courts

of appeals that have considered the issue.' The judgment below

was particularly erroneous in applying decisions of this Court

governing disposition of cases on a motion for summary

judgment. The majority opinion also conflicted with decisions

of this Court setting forth the circumstances in which hearings

are required by due process of law, most recently expressed

in Goss v. Lopez, 419 U.S. 565 (1975).

1. Every other court construing the burden on a public

agency, which uses a test shown to have an adverse

impact on minority applicants, has adopted a

heavier burden of justification than that used by

the majority below.

In recent years, this Court has twice set forth the

standards of review against which discriminatory tests must be

measured. In Griggs v. Duke Power Co., 401 U.S. 424 (1971),

the Court held that if “an employment practice which operates

to exclude Negroes cannot be shown to be related to job per-

formance, the practice is prohibited.’’ 401 U.S. at 431. Specif-

ically, the Court noted, a test user has “the burden of showing

that any given requirement must have a manifest relationship

to the employment in question.”” 401 U.S. at 432.

Last Term, in A/bemarle Paper Co. v. Moody, supra___

U.S. _, 45 L.Ed.2d at 304, the Court further refined the

burden placed upon test users, stating

“that discriminatory tests are impermissible unless

shown, by professionally acceptable methods, to be

‘predictive of or significantly correlated with important

elements of work behavior which comprise or are relevant

to the job or jobs for which candidates are being tested.’”’

. Douglas v. Hampton, 512 F.2d 976 (D.C. Cir. 1975), Davis v. Washington,

§12 F.2d 956 (D.C. Cir.), cert. granted. U.S._._., 46 L.Ed.2d 37 (1975); Walston v.

County School Board, 492 F.2d 919 (4th Cir. 1974); Castro v. Beecher, 459 F.2d 725

(Ist Cir. 1972); Chance v. Board of Examiners, 458 F.2d 1167 (2d Cir. 1972); Carter v.

Gallagher, 452 F.2d 315 (8th Cir. 1971) mod. 452 F.2d 327 (1972) (en banc), cert.

denied, 406 U.S. 95 (1972). All these cases were noted by the majority below, which

declined to follow them. 8a, n.6;517 F.2d at 1096 n.6.

Although Griggs and Albemarle were decided under

Title Vil of the Civil Rights Act of 1964, the five courts of

appeals which have resolved testing issues under the Four-

teenth Amendment have all placed a similar if not more strin-

gent burden upon test users.

Only the majority below, allowing an ‘‘apparent relation-

ship’’ between test results and job performance, has refused to

require a test user to prove the existence of a positive relation-

ship between test results and job performance. The majority

below recognized that the Griggs standard was applicable. 9a,

11a; 517 F.2d at 1097, 1099.

Petitioners submit, however that the Griggs standard was

improperly applied here on summary judgment. Therefore,

the judgment should be vacated and this case remanded for a

trial on the merits, where the complicated questions of the

proper standard for validating tests for access to professional

employment may be explored in full.

There is a clear confiict among the circuit courts of

appeal as to the proper standard of justification required of a

public agency using an employment test that has a dispropor-

tionate, adverse effect on minority applicants, whether that

effect be intentional or unintentional. With the exception of

the case under review, the courts of appeals have uniformly

required a substantial showing of the relationship between job

performance and both the content of the test and the passing

score on the test. In Douglas v. Hampton, 512 F.2d 976, 981

(D.C. Cir. 1975), the court of appeals declared that the Fifth

Amendment required that the government, to meet the Griggs

standard, ‘‘must meet the heavy burden of proving that the

practice ‘bear[s}] a demonstrable relationship to successful

performance for the jobs for which it was used.” Similar

language has been used by all the other courts of appeals:

Walston v. County School Board of Nansemond County, 492

F.2d 919, 924 (4th Cir. 1974)(per Associate Justice Clark,

retired)(“‘clear and convincing evidence’’)(teachers); Chance

v. Board of Examiners,, 458 F.2d 1167, 1176 (2d Cir. 1972)

(‘‘a heavy burden of justifying’? examinations)(teachers);

Castro v. Beecher, 459 F.2d 725, 732, 733 (Ist Cir. 1972)(the

employer must show “convincing facts establishing *** the

substantial congruence of employment requirements to job

Ee

10.

performance”). This Court in McDonnell Douglas Corp. v.

Green, 411 U.S. 792,802 1.14 (1973), cited the Chance and

Castro cases with approval. It is also clear that, even if the con-

tent of a professional examination is properly job-related,

there must be a showing that the passing score is related accur-

ately to professional competence. United States v. State of

North Carolina, 400 F.Supp. 343, 350 (E.D.N.C. 1975)(three-

judge court). See also Walston v. County School Board of

Nansemond County, supra, 492 F.2d at 925; Baker v.

Columbus Municipal Separate Schoo/ District, 462 F.2d

1112, 1114 (Sth Cir. 1972).2

The question, in terms of equal protection analysis, “‘is

whether there is an appropriate governmental interest suitably

furthered” by the action creating the classification. Police

Department of the City of Chicago v.Mosley, 408 U.S. 92, 95

(1972). Petitioners submit simply that the state must demon-

strate a ‘fair and substantial” relationship between the test,

as administered, and performance in the job for which the

test is a requirement, Reed v. Reed, 404 U.S. 71 (1971).3 The

state does not meet this standard by showing no more than

“a logical, apparent relationship to some aspects’’ of one part

of the job. Users of tests with an adverse impact on minority

groups bear a more strict burden of justification under the

constitution. Cf. Bridgeport Guardians, Inc. vy. Members of

Bridgeport Civil Service Com’n, 482 F.2d 1333, 1336-37

(2d Cir. 1973).

The courts have uniformly recognized, as did this Court

in Albemarle Paper Co. v. Moody, supra,____U.S. at__, 45

L.Ed.2d at 304, that there are “professionally acceptable

methods” for the evaluation of occupational selection tests.

Where there exist such accepted scientific methods for test

evaluation, the state is required to present evidence from this

scientific community to establish a “fair and substantial rela-

tionship” between the testing instrument and the occupational

a These three cases all involved misuse of the National Teacher Examinations

prepared by the Educational Testing Service.

3. For a discussion of some of this Court’s decisions requiring substantial

relation between the means adopted by the state and the state's asserted purposes, see

Gunther, The Supreme Court, 1971 Term-Forward: In Search of Evolving Doctrine on a

Changing Court: A Model for a Newer Equal Protection, 86 HARV. L. REV. 1(1972).

17.

performance.* There are a number of reasons why the state

must have more of a burden than an “appearance”’ of a relation-

ship between test and occupational performance. First and

most important, is the fact that a test that “appears” related to

the requirements of a job often is not in fact related to job

performance.

“So-called ‘face’ validity, the mere appearance of validity,

is not an acceptable basis for interpretative inferences

from test scores.”

*eeeE

“The writing of items in terms used in a particular job. . .

may give an appearance of relevance while contributing

nothing to content validity, or indeed any useful validity

information.”’ >

This approach of “face” validity has been uniformly rejected

in the testing profession and has never before been accepted by

any court; yet the majority below adopted this as the yard-

stick by which the Fourteenth Amendment measures occu-

pational tests.6 Second, as a matter of policy, to establish

radically different standards for evaluating state licensing tests

4. The presence of scientific, professionally accepted methods for evaluating

the tests whose administration is producing a marked adverse result for black applicants

is an important factor distinguishing this case from cases of “minimal scrutiny” relied

upon by the majority below. This is not a case where the adverse classification is the

result of political action resolving the conflicting claims of a “myriad of potential reci-

pients,”’ such as Jefferson v. Hackney, 406 U.S. 535 (1972); Geduldig v. Aiello, 417 U.S.

484 (1974); or Dandridge v. Williams, 397 U.S. 471 (1970). Nor is this a case where

the democratic political process itself competes with the claim of invidious discrim-

ination ,as in James v. Valtierra, 402 U.S. 137 (1971). In such cases, the courts are asked

to balance competing political claims. In the instant case, by contrast, the burden of

judicial review is relatively narrow and well-defined, and the courts are becoming increas-

ingly familiar with the relevant techniques.

5. American Psychological Association, Standards for Educational and Psycho-

logical Tests (1974), pp. 26, 29; cf. Albemarle Paper Co. v. Moody, supra,__U.S. at__,

45 L.Ed.2d at 304n.29.

6. Even in Allen v. City of Mobile, 331 F. Supp. 1134, 1141 (S.D. Aja. 1971),

aff'd per curiam, 466 F.2d 122 (Sth Cir. 1972), on which the majority below relied,

“face” validity was not accepted. There, the test user had offered expert testimony that

the test in question had “content validity.” It is doubtful that summary judgment would

have been granted on the record in these cases if respondents were anyone but lawyers

and bar examiners. See Goldfarb v. Virginia State Bar, 421 U.S. 773, 787, 788 (1975),

rejecting the contention that the legal profession is immune from anti-trust regulation.

12.

used indirectly by public and private employers would be to

invite a shift in discriminatory testing from the hiring stage to

the licensing stage in occupational selection. Third, it is clearly

established, both as a matter of professional opinion and of

judicial opinion, that even when a test is job-related, the test

user must additionally demonstrate that the passing score is

suitably related to the purpose of the test. United States v.

State of North Carolina , 400 F.Supp. 343, 350 (E.D.N.C. 1975)

(three judge court). The court here simply found that the

questions on the test appeared to relate to knowledge required

of lawyers, and gave no consideration whatever to the manner

in which the passing score was set. 30a-32a, 36a-37a, 46a-47a.

It was particularly inappropriate to grant summary judg-

ment to the respondent bar examiners. Expert witnesses for

both sides testified that, as a professional matter, the bar

examination should have scientifically established validity

in relation to the job of a practicing attorney. Petitioners’

witness unequivocally testified that validity was not established

on the record here. All expert witnesses criticized the manner

in which respondents set their passing score. The district court

never considered the question of the passing score in any of its

opinions. The majority below undertook, for the first time on

appeal, to resolve this question in favor of the bar examiners’

untested judgment, in contradiction to the testimony of the

expert witnesses for both parties. 15a, 517 F.2d at 1102. On

this record, the job-relatedness of the test as adminsitered and

of the passing score could not be resolved on summary

judgment.

2. Summary judgment should not have been granted

on the basis of respondents’ testimony in rebuttal

to petitoners’ primafacie case of purposeful

discrimination.

The decision of the majority below also conflicts with

this Court’s decisions concerning both (1) the necessary

elements to make out a prima facie case of intentional discrim-

ination, and (2) the rebuttal necessary to negate all issues of

material fact on summary judgment. The majority below

required proof of opportunity to discriminate; it did not

13.

dispute that all other necessary elements were proved by peti-

tioners. Many of this Court's decisions as to proof of a prima

facie case of purposeful discrimination by administrative

officials have discussed the factor of opportunity. See, e.g.,

Alexander y, Louisiana, 405 U.S. 625, 630-32 (1972), and cases

there cited. These cases typically rested on a showing of

Statistical discrimination as to the selection of a single jury

venire, plus an opportunity to discriminate. When the statis-

tical evidence of discrimination has been consistent over a long

period of time, however, this Court has never required proof

of opportunity as a necessary element of a prima facie case of

racially discriminatory conduct. See Swain v. Alabama, 380

U.S. 202, 205-209 (1965), as discussed in Foster y. Sparks,

506 F.2d 805, 829 (Sth Cir. 1975). See also Turnerv. Fouche,

396 U.S. 346, 360 (1970); jones v. Georgia, 380 U.S. 24, 25

(1967) (per curiam); Coleman v Alabama, 389 U.S. 22, 23

(1967) (per curiam); Avery v. Georgia, 345 U.S. 559, 562-63

(1953); Patton v. Mississippi, 332 U.S. 463, 468-69 (1947);

Snowden. v. Hughes, 321 U.S. 1, 8-9 (1943); Hill v Texas,

316 U.S. 400, 405-06 (1942); Norris v. Alabama, 294 U.S.

587, 594-96, 598 (1935).

There are three additional reasons that summary

judgment as to purposeful discrimination was not available to

defendants on this record. First, under this Court’s decision in

Poller v. Columbia Broadcasting System, 368 U.S. 464, 473

(1962), as the dissenting judge below noted, the importance of

evaluating the motive of witnesses on the question of purpose-

ful discrimination makes summary judgment inappropriate.’

Second, summary judgment is a particularly inappropriate

method for evaluating the credibility of witnesses. Sartor v.

Arkansas National Gas Corp., 321 U.S. 620, 628-29 (1944);

Arnstein v. Porter, 154 F.2d 464, 469-72 (2d Cir. 1946). Since

the plaintiffs nad established the necessary elements of their

case without defendants’ testimony, defendants’ testimony,

even where uncontradicted and unimpeached, was not entitled

to unquestioned belief on a motion for summary judgment.

Cf. 6 Moore’s Federal Practice par. 15[4], text at n.53. Third,

7. The majority below cited Palmer v. Thompson, 403 U.S. 217 (1971), for the

proposition that motive is not relevant if opportunity to discriminate is not proved.

Palmer is inapposite, however. since it held that motive is not relevant when there is no

disproportionate adverse impact. !n these cases, the adverse impact upon the plaintiffs

and their class is undisputed.

14.

the majority below held that the examiners’ opportunity to

learn the identity of candidates was conclusively precluded by

the testimony of the examiners and one of the employees of

the Board of Bar Examiners. The information identifying

applicants is, for much of the relevant time, in the hands of

other agents of the Board of Bar Examiners who presented no

testimony in any form before the district court; furthermore,

the examiners conceded that they had examined this informa-

tion after grading papers. Since not all possible witnesses had

testified that respondents had no opportunity to learn the

identity of applicants, respondents were not entitled to

summary judgment. Adickes v. S. H. Kress and Co., 398 U.S.

144, 157-58 (1970).

3. Due process of law is not satisfied by reexamination,

with no opportunity for a hearing to challenge

errors.

As the majority in the court of appeals recognized, this

Court has held that due process definitely applies to admission

to the bar [17a, 517 F.2d at 1103]:

“A State cannot exclude a person from the practice

of law or from any other occupation in a manner or for

reasons that contravene the Due Process or Equal Pro-

te tion Clause of the Fourteenth Amendment.” Schware

Board of Examiners, 353 U.S. 232, 238-39 (1957).

In a long line of cases, most recently culminating inGoss

v. Lopez, 419 U.S. 565 (1975), this court has held that due

process of law requires “some form of notice and hearing -

formal or informal”. Fuentes v. Shevin, 407 U.S. 67, 90n.21.

“TA]s long as a property deprivation is not de minimis,

itsgravity is irrelevant to the question whether account

must be taken of the Due Process Clause.”

** *& *

15.

“the length and consequent severity of a depriv-

ation, while another factor to weigh in determining the

appropriate form of hearing, ‘is not decisive of the basic

right’ to a hearing of some kind. Fuentes v. Shevin, 407

U.S. 67, 86 (1972).” [419 U.S. at 576.]

The Goss case held that when a student was suspended from

public school for a period of ten days or less he has the right to

a hearing, albeit somewhat less formal than in most contexts.

The majority below held that a deiay of six months or more to

an applicant who is improperly failed on the bar examination,

does not invoke the right to a hearing. It is difficult to imagine

a deprivation that is more clearly not de minimis than the denial

of the right to practice for six months or more a profession for

which one has studied long years. The decision below is thus

squarely in conflict with Goss, and the long line of cases cited

therein.

CONCLUSION

For the foregoing reasons the petition for a writ of

certiorai to the United States Court of Appeals for the Fifth

Circuit should be granted.

Respectfully submitted,

RAY P. McCLAIN

ARMAND DERFNER

P.O. Box 608

Charleston, S. C. 29402

LAUGHLIN McDONALD

NEIL BRADLEY

52 Fairlie Street, N.W.

Atlanta, Georgia 30303

16.

MELVIN L. WULF

E. RICHARD LARSON

22 East 40th Street

New York, N. Y. 10016

COUNSEL FOR PETITIONERS

OF COUNSEL:

JOHN H. RUFFIN, JR.

C.B. KING

THOMAS M. JACKSON

BOBBY L. HILL

MARVIN S. ARRINGTON

BENJAMIN SPAULDING

SARAJANE LOVE

- la -

TYLER v. VICKERY 7387

Eugene W. TYLER, Plaintiff-Appellact.

v.

Trammell E. VICKERY et al.

Defendants Appellees.

Ralph BANKS, Jr., Plaintiff-Appellant,

v.

Trammell E. VICKERY et al.,

Defendants- Appellees.

James E. C. PERRY et al.,

Plaintiffs Appellants,

v.

Edward S. SELL, Jr., et al.

Defendants- Appellees.

No. 74-3413.

United States Court of Appeals,

Fifth Circuit.

Aug. 20, 1975.

A class action was instituted on be-

half of all blaek persons who had taken

and failed the Georgia bar examination,

contending that the examination was un-

constitutional on due process and equal

protection grounds. The United States

District Court for the Northern District

of Georgia, at Atlanta, William C. O’Kel-

ley, J., granted summary judgment hold-

ing the examination constitutional, and

plaintiifs appealed. The Court of Ap-

peals, Dyer, Circuit Judge, held, inter

alia, that the bar examination was not

intentionally discriminatory, that it was

not inherently discriminatory by virtue

of the disproportionate number of black

applicants for admission to the bar who

failed it, and that the failure to provide

any procedure for review of a failing

grade at the behest of the examinee did

not constitute a denial of due process of

law.

Affirmed.

Adams, Circuit Judge, dissented and

filed opinion.

1. Federal Civil Procedure @=2481

In view of undisputed evidence of

anonymity of grading process, allega-

tions in class action brought on behalf of

all black persons who had taken and

failed the Georgia bar examination, to

effect that bar examiners utilized exami-

nation as device to purposefully discrimi-

nate against prospective black attorneys

on basis of race, presented no genuine

issue of material fact which would re-

quire trial, and summary judgment was

therefore properly entered against plain-

tiffs. U.S.C.A.Const. Amend. 14; Fed.

Rules Civ.Proc. rule 56(c), 28 U.S.C.A.

2. Constitutional Law @=208(1)

Discriminatory motivation, even if

proved, is not in itself a constitutional

violation, and becomes so only when it is

given opportunity to manifest itself in

discriminatory conduct. U.S.C.A.Const.

Amend. 14.

3. Federal Civil Procedure @=2470.2

In opposing motion for summary

judgment, party is entitled not only to

have facts viewed in iight most favor-

able to it but also to all reasonable infer-

ences which may be drawn from these

facts; inferences nonmoving party seeks

to draw, however, must be reasonable.

Fed.Rules Civ.Proc. rule 5&(c), 28 U.S.

C.A.

4. Federal Civil Procedure #2481

In suit in which plaintiff contended,

inter alia, that Georgia bar examiners

utilized bar examination as device to

purposefully discriminate against pro-

spective biack attorneys on basis of race,

Syllabi and Key Number Classification

COPYRIGHT © 1975, by WEST PUBLISHING CO.

The Synopses, Syliabi and Key Number Ciassifi-

cation constitute.no part of the opinion of the court. INDEXED

- 2a -

T388 TYLER v. VICKERY

inference that use by black applicants of

“Black English” idiom presented viable

opportunity for examiners to engage in

overt racial discrimination against blacks

was unreasonable as matter of law and

therefore insufficient basis upon which

to deny motion for summary judgment

against plaintiffs. Fed.Rules Civ.Proc.

rule 56(c), 28 U.S.C.A.

5. Federal Civil Procedure 2470.2

In determining, for purposes of con-

sidering motion for summary judgment,

whether factual inference which party

seeks to draw is a reasonable one, court

need not ignore existence of other evi-

dence of record which tends to make

that inference more or less plausible.

Fed.Rules Civ.Proc. rule 5é6(c, e, f), 28

U.S.C.A.

6. Constitutional Law #215

Traditional equal protection analysis,

not standards developed by Equal Em-

ployment Opportunity Commission for

employment testing covered by title VI

of Civil Rights Act of 1964, was proper

standard for judging allegations that

Georgia bar examination inherently de-

nied equal protection of the law to black

applicants because of much greater rate

at which they failed examination; there

was therefore no basis for a holding that

bar examination was required to be pro-

fessionally validated or that bar examin-

ers were required to demonstrate una-

vailability of alternative means of mea-

suring professional competence. Civil

Rights Act of 1964, § 701 et seq. as

amended 42 U.S.C.A. § 2000e et seq.;

U.S.C.A.Const. Amend. 14.

7. Constitutional Law @=208(1)

Hallmark of rational classification is

not merely that it differentiates, but

that it does so on basis having fair and

substantial relationship to purposes of

classification. U.S.C.A.Const. Amend.

14.

8. Constitutional Law 215

“Rational relationship” test was

properly applied to judge contention that

Georgia bar examination inherently de-

nied equal protection of law to black ap-

plicants because of greater rate at which

they failed examination, despite conten-

tion that “compelling state interest” test

was proper because disproportionate

passing rate of black and white appli-

cants on examination served to create

suspect classification based on race such

as is needed to trigger strict judicial

scrutiny. U.S.C.A.Const. Amend. 14.

9. Constitutional Law #215

Otherwise legitimate classification

does not become constitutionally suspect

merely because greater number of racial

minority fall in group disadvantaged by

classification. U.S.C.A.Const. Amend.

14.

10. Civil Rights @=13.13(3)

Statistical evidence of disparate ra-

cial impact alone may establish prima

facie case of racial discrimination, shift-

ing to defendant burden of demonstrat-

ing that invidious discrimination was not

among reasons for his action.

ll. Attorney and Client #4

State has legitimate and substantial

interest in excluding from practice of

law those persons who do not meet its

standard of minimal competence.

12. Attorney and Client #6

Georgia bar examination tests skills

and knowledge which have logical, ap-

parent relationship to those necessary in

practice of law.

13. Constitutional Law @=208(1)

While party defending classification

subject to strict judicial scrutiny must

demonstrate that state has no other

- 3a -

TYLER v. VICKERY T3898

available alternative which impinges less

on protected interest involved, focus of

rational relationship test is not whether

state has superior means a\ lable to ac-

complish its objectives, but whether

means it has chosen is reasonable one.

U.S.C.A.Const. Amend. 14.

14. Attorney and Client #6

Georgia bar examination was not ir-

rationally administered because its out-

come depended heavily on subjective

grading judgments of »*«aminers.

15. Federal Civil Procedure ¢=2481

In action in which plaintiffs alleged

that Georgia state bar examination ille-

gally discriminated against blacks, argu-

ments that examiners should uniformly

be required to use model answers and

predetermined standards in grading

were merely suggestions for improve-

ment and did not raise fact issue as to

whether examination itself was rational.

Fed.Rules Civ.Proc. rule 56, 28 U.S.C.A.

16. Attorney and Client 6

In proceeding in which plaintiffs

contended that Georgia state bar exami-

nation works to discriminate against

blacks, irrationality of examination was

not shown by practice of board of law

examiners in the grading failing papers

falling close to passing mark or in com-

paring examination results with law

school records as informal check of ex-

aminers’ performance.

17. Attorney and Client o€

It was not irrational for law exam-

iners to compare results of bar examina-

tion with law school records as one infor-

mal, after-the-fact means of judging

quality of examination. ’

18. Attorney and Client #6

Georgia bar examination had ration-

al relationship to applicant’s fitness to

practice law and was not inherently dis-

criminatory against blacks by virtue of

mere fact that examination was failed

by much higher percentage of black than

whites. U.S.C.A.Const. Amend. 14.

19. Constitutional Law @=287

Primarily because unqualified right

to retake examination at its next regu-

larly scheduled administration both satis-

fied purpose of hearing and afforded its

protection, black applicants for admission

to practice of law were not denied due

process by virtue of fact that they were

denied any procedure for review of fail-

ing grade in bar examination. U.S.C.A.

Const. Amend. 14.

20. Constitutional Law 2 305(2)

While opportunity to be heard is

generally considered fundamental com-

ponent of due process, entitlement to

rehearing does not automatically flow

from finding that procedural due process

is applicable. U.S.C.A.Const. Amend. 14

21. Constitutional Law @a251

Whether due process requires partic-

ular procedure in given situation must

be determined by balancing individual's

interest in avoiding loss which lack of

procedure inflicts upon him against in-

terest which government seeks to ad-

vance by denying it. U.S.C.A.Const.

Amend. 14.

Appeals from the United States Dis-

trict Court for the Northern District of

Georgia.

Before GEWIN, DYER and ADAMS,°

Circuit Judges.

DYER, Circuit Judge:

This appeal presents a broad-based

challenge to the constitutionality of the

* Of the Third Circuit, sitting by designation.

- 4a-

T3990 TYLER v. VICKERY

Georgia bar examination on due process

and equal protection grounds. This suit

before us, which has been certified by

the district court as a class action on

behalf of all black persons who have tak-

en and failed the Georgia bar examina-

tion and have not been admitted to the

practice of law in Georgia, as well as all

black persons who will take the exami-

nation in the future, resuits from the

consolidation of several suits brought by

black individuals who have been unsuc-

cessful on the examination.

Summarized briefly, the Georgia bar

examination i: a two-day test adminis-

tered biannually by the Georgia State

Board of Bar Examiners (the Board), a

group of five practicing lawyers appoint-

ed by the Georgia Supreme Court. Since

February, 1972, the examination has

been composed one-half of essay ques-

tions prepared and graded by the bar

examiners, and one-half of the multiple

choice Multistate Bar Examination

(MBE), prepared and graded by the Na-

tional Corference of Bar Examiners

(NCBE), and administered simultaneous-

ly to bar examinees in a majority of

states. Following grading, the scores on

the essay and MBE portions of the ex-

amination are combined into a final

grade according to one of three formulas

recommended by the NCBE and selected

by the Board. It has also been the prac-

tice of the Board, prior to final certifica-

tion of the examination results, to con-

vene and regrade failing papers which

meet certain criteria such as falling close

to the minimum passing score of 70, re-

ceiving a passing grade from a certain

minimum number of examiners, or being

recommended for regrading by an exam-

iner. As a result of this reconsideration,

a previously failing grade is on occasion

raised to a passing score. No other re-

view of a grade is provided.

The central focus of this litigation

cleariy is that black applicants as a class

have traditionally experienced particular

difficulty in passing the Georgia bar ex-

amination. This unfortunate situation

reached a nadir in July, 1972, when each

of the 40 black applicants taking the ex-

amination failed. On the February and

July, 1973, examinations, slightly more

than one-half the black applicants were

unsuccessful, as compared to a failure

rate of roughly one-fourth to one-third

among white examinees.

Appellants’ challenges to the constitu-

tionality of the bar examination fall into

three major areas. They claim: 1) that

the examiners have used the bar exami-

nation to purposefully discriminate

against black applicants on the basis of

race; 2) that the bar examination inher-

ently violates the fourteenth amend-

ment’s equal protection clause because of

the highly disparate passing rates of

black and white applicants; and 3) that

the examination violates due process be-

cause there is no procedure for review of

a failing grade.

Following extensive discovery by both

sides which lasted several months, the

district court granted summary judg-

ment tw appellees on each of these

claims. After careful consideration of

the record, we conclude that that court

was correct in holding that there were

no genuine issues of material fact to be

resolved and that appellees were entitled

to judgment as a matter of law. We

therefore affirm its judgment.

I. INTENTIONAL DISCRIMINATION

{1} Appellants’ first major contention

is that the bar examiners utilize the ex-

amination as a device to purposefully

discriminate against prospective black

attorneys on the basis of race. The dis-

trict court found this allegation to be

- Sa -

TYLER v. VICKERY T3081

“totaliy without factual foundation,” and

hence appropriate for summary disposi-

tion. We agree that it presents no genu-

ine issue of material fact which would

require a trial.

{2] In so holding, we are mindful of

the Supreme Court’s admonition that

“summary procedures should be used

sparingly . . . where motive and

intent play leading roles.” Poller v. Co-

lumbia Broadcasting System, 1962, 368

U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d

458. However, discriminatory motiva-

tion, even if proved, is not in itself a

constitutional violation, Palmer ev.

Thompson, 1971, 403 U.S. 217, 91 S.Ct.

1940, 29 L.Ed.2d 438, and becomes so

only when given the opportunity to man-

ifest itself in discr.minatory conduct.

Accordingly, appellees undertook to ne-

gate the materiality of intent as an issue

of fact in this case not merely by deny-

ing racial animus but also by affirma-

tively demonstrating their inability to

discover an applicant’s race before grad-

ing had been completed.

The bulk of the evidence on this point

was introduced through the deposition of

Estes, an employee of the Georgia Su-

preme Court serving as Administrative

Assistant to the Board, and the official

primarily responsible for implementing

the procedures designed to insure ano-

nymity in the grading process. The sub-

stance of Estes’ testimony was that

I. It was Estes’ practice to open the container

and begin matching narnes and numbers while

the examiners were engaged in regrading.

This matching was limited solely to numbers

which the examiners had previously certified

as having passed the examination; none of

those not certified as passing were matched,

whether the examination paper was being re-

graded or not. Moreover, the examiners were

not notified of the status of any examinee until

a decision had been reached on ail papers.

while applicants are seated alphabetical-

ly and identified by name cards in the

examination room, examination papers

are identified and graded by number

only. These numbers are drawn at ran-

dom on individual cards by the appli-

cants, who write their names on the

cards and place them in sealed envelopes.

These envelopes are then collected,

sealed in a container in the examination

room, and kept in the container in his

custody throughout the grading process.'

This testimony, which was uncontradict-

ed? was sufficient to show the absence

of any genuine issue of material fact as

to the examiners’ direct access to infor-

mation concerning an examinee’s race

during grading. Fed.R.Civ.P. 5&(c).

Despite the examiners’ inability to di-

rectly discover an applicant’s race, appel-

lants contend that a fact issue regarding

intentional racial discrimination is infer-

entially raised by the deposition of Dr. J.

L. Diilard, linguist and author of Black

English: Its History and Usage in the

United States (1972). According to Dr.

Dillard, many black persons tend to

speak an English variant, characterized

by structures such as the pre-verbal use

of “been”, which has been coined Black

English. While all formal education,

and in particular that at predominantly

black institutions, attempts to inculcate

Standard English usage rather Black

English, Dr. Dillard opined that a person

2. Appellants attempted to counter this testi-

mony with, for example, evidence that the “A”

envelopes in which names and numbers were

sealed were not completely opaque. But this

evidence in no way speaks to the fact that the

“A” envelopes were placed in another sealed

container in the examination room. Thus, any

person wishing to look into these envelopes

for discriminatory purposes would have to ex-

amine them individually in the examination

room, in full view of Board officials, exam

monitors, and the examinees.

- 6a -

7392 TYLER v. VICKERY

who had spoken this dialect during his

youth might revert to it under situations

of extreme time pressure, such as during

a bar examination. From this testimony

appellants wish us to draw the twin fac-

tual inferences that black applicants uti-

lized a 1) unique and 2) recognizable

writing style on the examination, provid-

ing the bar examiners with the opportu-

nity to intentionally discriminate against

black examinees, and hence raising a

fact issue as to whether they had actual-

ly done so.

[3] In opposing a motion for summa-

ry judgment, a party is entitled not only

to have the facts viewed in the light

most favorable to it but also to all rea-

sonable inferences which may be drawn

from these facts. Harvey v. Great At-

lantic & Pacific Tea Co., 5 Cir. 1968, 388

F.2d 123, 124-25; Liberty Leasing Co. v.

Hillsum Sales Corp., 5 Cir. 1967, 380 F.2d

1013, 1014-15. The inferences the non-

moving party seeks to draw, however,

must be “reasonable,” and it is in this

respect that we find Dr. Dillard’s deposi-

tion insufficient to controvert appellees’

properly supported motion for summary

judgment.

{4] A major reason is that the deposi-

tion itself directly contradicts both infer-

ences appellants would have us draw

from it. In response to questioning by

appellees’ counsel regarding the racial

uniqueness of Black English, Dr. Dillard

testified that the incidence of the dialect

was not limited to blacks, but was, in his

words, “a major factor that differenti-

ates so-called Southern dialect.” He spe-

3. Appeliants also contend that Black English

may result in overt discrimination even if the

examiner does not recognize its use as a racial

characteristic but merely reacts negatively be-

cause he conceives it to be incorrect. As this

claim is equally susceptible to ail of the other

reasons we cite for concluding that no materi-

cifically testified that some southern

whites would use similar or identicai

grammatica! construction and that for

those whites who had learned this patois

in their youths, “[t]he trends of reversion

are the same, of course.” On the issue

of the dialect’s racial recognizability, Dr.

Dillard testified that it was highly un-

likely that an individual untrained in lin-

guistics would recognize the use of Black

English as a “black” characteristic, or

indeed as anything other than incorrect

standard English? Both of these obser-

vations, which are in direct contradiction

to the use of Dr. Dillard’s linguistic theo-

ries which appellants wish to make in

this lawsuit, in our view render the in-

ference that Black English presents a

viable opportunity for the Board to en-

gage in overt racial discrimination un-

reasonable as a matter of law.

[5] Two other factors support this

conclusion. First, in determining wheth-

er a factual inference a party seeks to

draw is a reasonable one, we need not

ignore the existence of other evidence of

record which tends to make that infer-

ence more or less plausible. First Na-

tionl Bank v. Cities Service Co., 1968, 391

U.S. 253, 284-86, 88 S.Ct. 1575, 20

L.Ed.2d 569. Here, such relevant record

evidence is the MBE, which has com-

prised one-half of the Georgia bar exam-

ination since February, 1972. The sig-

nificance of the MBE, as a multiple

choice test, is that its scores are immune

to any variation arising from the use of

Black English‘ After perusing the

al issue of fact exists on this claim, we need

not address ourselves to its intrinsic merits.

4. Dr. Dillard specifically testified that a back-

ground in Black English would have no ad-

verse effect on an educated individual's com-

prehension of even very difficult standard Eng-

lish.

MBE results, the district court observed

that on the July, 1972 examination,

when each of the 40 black applicants

failed, only one passed the MBE but

failed the examination as a whole. It

also noted that the results on subsequent

examinations were comparable and that

the director of testing of the NCBE had

testified that it would be impossible for

a state board of examiners to set the

cutoff score so as to _ intentionally

achieve this result. Obviously, these

facts also tend to seriously undercut the

inference that the difficulty of black ap-

plicants on the examination is due to

language bias arising from the use of

Black English. In the words of the Su-

preme Court in First National, supra,

they “conclusively show that the facts

upon which [appellants relied} to support

[their] allegation were not susceptible of

the interpretation which [they] sought to

give them.” 391 U.S. at 289, 88 S.Ct. at

1593.

Finally, this is not a case where the

substitution of speculative inferences for

the “specific facts showing that there is

a@ genuine issue for trial” demanded by

Rule 56(e) is to be treated indulgently.

See Smith v. Local 25, Sheet Metal

Workers, 5 Cir. 1974, 500 F.2d 741, 749.

Fed.R.Civ.P. 56(f) requires that a party

unable to show facts essential to his op-

position present to the court the reasons

for its inability to produce such evidence.

Here there was not only no request for

further discovery, but the record affirm-

atively shows that appellants were fur-

nished with the examination papers writ-

ten by all applicants on the July, 1972

examination. Thus, were there more

& Appellants zlso argue that we may find the

bar examiners guilty of “intentional” discrimi-

nation merely for having continued to adminis-

ter the examination with knowledge of its ad-

verse impact on black applicants. This is of

. VICKERY T3383

than surmise to the asserted connection

between Black English and the poor

showing of black bar applicants, appel-

lants had both the means and the duty

to bring the pertinent facts forward.

Their failure to do so cannot be con-

strued as creating a fact issue precluding

summary judgment.®

Il. INHERENT DISCRIMINATION

Appellants’ second contention is that,

irrespective of intent, the Georgia bar

examination inherently denies equal pro-

tection of the laws to black applicants

because of the much greater rate at

which they fail the examination. The

two major issues that we must resolve in

connection with this claim are: 1) the

standard of judicial review which is ap-

plicable when only disparate perform-

ance by race has been shown, and 2)

whether a material issue of fact remains

that the applicable standard had been

satisfied. As is frequently the case in

equal protection suits, the first issue

largely controis the second.

The district court determined that the

appropriate standard of review was the

“rational relationship” test, and that the

Georgia bar examination satisfied this

norm as a matter of law. For reasons

that shall appear, we agree with the dis-

trict court’s ultimate conclusion on both

points.

{6} Appellants’ primary suggestion is

that we should not view the Georgia bar

examination within the framework of

traditional equal protection analysis at

all, but should instead apply by analogy

the standards developed by the Equal

Employment Opportunity Commission

course no more than a sophisticated restate-

ment of the claim that the bar examination is

inherently unconstitutional, which we treat in

Part Il, infra.

T3984 TYLER v. VICKERY

for employment testing covered by Title

VII of the Civil Rights Act of 1964 as

amended, 42 US.C.A. § 2000e (EEOC

guidelines). As construed by tne Su-

preme Court in Griggs v. Duke Power

Co., 1971, 401 U.S. 424, 91 S.Ct. 849, 28

L.Ed.2d 158, Title VII precludes the use

of testing procedures which dispropor-

tionately exclude protected minorities,

regardless of intent or motivation, unless

they are “demonstrably a reasonable

measure of job performance.” Id. at

436, 91 S.Ct. at 856. Under the perti-

nent EEOC guidelines, which we have

recognized to be a highly persuasive in-

terpretation of Title VII, United States

v. Georgia Power Co., 5 Cir. 1973, 474

F.2d 906, 913,

{tJhe use of any test which adversely

affects hiring, promotion, transfer or

any other employment or membership

opportunity of classes protected by Ti-

tle VII constitutes discrimination un-

less: (a) the test has been validated

and evidences a high degree of utility

as hereinafter described, and (b) the

person giving or acting upon the re-

sults of the particular test can demon-

strate that alternative suitable hiring,

transfer or promotion procedures are

unavailable for his use.

29 C.F.R. § 1607.3 (1974). Since it is

undisputed that the Georgia bar exami-

nation has a greater adverse impact on

black applicants than on whites and has

never been the subject of a professional

validation study, acceptance of appel-

lants’ suggested standard of review

would inexorably compel the conclusion

that the examination is unconstitutional.

6 Douglas v. Hampton, D.C.Cir. 1975, 512 F.2d

976; Davis v. Washington, D.C.Cir. 1975, 512

F.2d 956; Walston v. County School Board, 4

Cir. 1974, 492 F.2d 919; United States v. Ches-

terfield County School Dist., 4 Cir. 1973, 484

F.2d 70; Castro v. Beecher, | Cir. 1972, 459

Title VII does not apply by its terms,

of course, because the Georgia Board of

Bar Examiners is neither an “employer,”

an “employment agency,” nor a “labor

organization” within the meaning of the

statute. 42 U.S.C.A. § 2000e. Nonethe-

less, appellants argue that it is appropri-

ate to look to Title VII and its imple-

menting guidelines to flesh out the four-

teenth amendment equal protection

guarantee both because the statute and

the amendment share the common goal

of interdicting racial discrimination and

because the bar examination is in reality

an “employment test;” indeed, they

point out that the stakes are much high-

er than in an ordinary employment test-

ing situation because failure results not

in the loss of a specific job opportunity

but in denial of the right to practice law

in an entire state.

Quite understandably, appellees take

the position that whether or not the bar

examination meets the standards of a

facially inapplicable statute is simply ir-

relevant to its constitutionality. This

observation would ordinarily be all the

discussion the point would warrant.

However, as authority for their argu-

ment that Title VII and the fourteenth

amendment should be equated, appel-

lants have cited to us a number of

Courts of Appeals decisions from other

Circuits which have utilized the four-

teenth amendment to apply Title VII

and the EEOC guidelines virtually ver-

batim to employment tests administered

by various public agencies. We have

given these decisions careful considera-

tion, but on close analysis we conclude

F.2d 725: Chance v. Board of Examiners, 2

Cir. 1972, 458 F.2d 1167; Carter v. Gallagher,

8 Cir. 1971, 452 F.2d 315, mod. 1972, 452 F.2d

327 (en banc), cert. denied, 406 U.S. 950, 92

S.Ct. 2045, 32 L.Ed.2d 338.

- 9a -

TYLER v. VICKEK: T3%

there are several fundamental reasons

why their principles cannot be extended

to reach the Georgia bar examination as

appellants suggest.

The first of these reasons is that,

viewed in the perspective of their some-

what unique factual context, the cuses

on which appellants rely do not necessar-

ily stand for the sweeping propositions

for which they cite them. The courts

which have treated the fourteenth

amendment and Title VII as embodying

fungible standards have done so only in

the narrow context of employment tests

administered by governmental entities

such as police and fire departments.

This is significant because Title VII, as

originally enacted, provided a specific

exemption from the Act’s requirements

for governmental units. Thus, in suits

involving challenges to the personnel

practices of public agencies, courts were

frequently confronted by the anomaious

situation of a public employer who was

theoretically free to engage in selection

practices which would be clearly illega!

for a private employer under Title VII.

But prior to the time of appellate deci-

sion in each of these cases but Carter v.

Gallagher, supra, this anomaly had been

potentially removed by Congress’ enact-

ment of the Equal Employment Oppor-

tunity Act of 1972, Pub.L. 92-261, 86

Stat. 108, which deleted the governmen-

tal exemption from Title VII and clearly

expressed Congressional intent to reach

the employment practices of the agencies

in question; however, direct Title VII

relief was still barred by the fact that

the complaints had been filed prior to

the 1972 amendments to the Act.

The response of some courts was to

bridge this gap by virtually incorporat-

ing Title VII and the EEOC guidelines

into the fourteenth amendrrent. What-

ever the justification for this approach in

these narrow circumstances, we think it

overly simplistic to read these decisions,

as appellant would have us do, as au-

thority for the general proposition that

Title VII and the equal protection clause

should be read interchangeably whenev-

er the goals to be served are the same

and the subject matter is at least argu-

ably related, particularly when the deci-

sions have not been read so broadly by

the Circuits that rendered them.’.

A second important consideration is

that the cases on which appellants rely

do not state the controlling law of this

Circuit, but are in fact contrary to it.

We confronted the issue of testing for

public employment in Allen v. City of

Mobile, 5 Cir. 1972, 466 F.2d 122, which

involved a challenge to the constitution-

ality of a written test used by the Mo-

bile, Alabama police department as part

of its requirements for promotion to the

rank of sergeant. The district court sus-

tained this test despite a showing of de-

monstrabie adverse impact on blacks. In

doing so, it recognized the relevance of

Griggs’ holding that tests which disad-

vantage minorities should be job-related,

but declined to use this as a springboard

to apply the full panoply of EEOC

guidelines to a test falling outside the

scope of Title VII; it specifically refused

to require that the test be professionally

validated. Instead, the court personaliy

examined the challenged test and con-

cluded that the skills it measured, such

as reading and comprehension, memory,

note-taking and verbal skills, were useful

attributes for a policeman, particularly

one in @ supervisory position. Based on

this conclusion, it upheld the test on the

ground that “[ijt bears a rational rela-

tionship to the ability to perform the

7. See note 9, infra.

- 10a -

7336 TYLER v. VICKERY

work required.” Allen v. City of Mobile,

S.D.Ala.1971, 331 F.Supp. 1134, 1146.

On appeal, the sole issue was whether

the district court had applied the correct

legal standard in dealing with the test.

We affirmed per curiam, on the basis of

the district court’s order and decree.

Moreover, Judge Goldberg’s dissenting

opinion removed any remaining doubt

that, in affirming, we squarely confront-

ed and rejected the contention that Title

VII and its implementing EEOC guide-

lines were applicable to testing outside

the scope of the Act. In an exhaustive

opinion, Judge Goldberg argued that the

majority had erred in declining to follow

precisely the cases on which appellants

rely and in refusing to hold, as had they,

that Title VII standards may be applied

by analogy through the fourteenth

amendment.

Thus, were the precise issue decided by

the cases on which appellants rely before

us today, we would be compelled to re-

ject their holdings on the authority of

our decision in Allen. See McClure v.

First Nat’) Bank, 5 Cir. 1974, 497 F.2d

490, 492. Needless to say, this fact aiso

makes appellants’ cases somewhat less

than persuasive authority in this Circuit.

However, even were we not con-

strained by Allen, we would view a sub-

sequent Supreme Court decision, which

declined the opportunity to equate the

equal protection clause and Title VII in

a similar situation, as the most per-

suasive authority on the proper relation-

ship between the Act and the fourteenth

amendment. In Geduldig v. Aiello, 1974,

417 U.S. 484, 94 S.Ct. 2485, 41 L.Ed.2d

256, the Supreme Court dealt with the

question of whether the California Un-

employment Compensation Disability

Fund could, consonantly with the equal

protection clause, exclude disabilities as-

sociated with normal pregnancy from

the fund’s coverage. While this state-

administered plan was outside the scope

of Title VII, as is the Georgia bar exami-

nation, this precise issue was the subject

of an EEOC regulation promulgated pur-

suant to Title VII, which stated in perti-

nent part that “. . payment under

any . . . temporary disability plan

. . ., formal or informal, shall be ap-

plied to disability due to pregnancy or

childbirth on the same terms and condi-

tions as they are applied to other tempo-

rary disabilities.” 29 C.F.R. § 1604.-

10(b)4 1974)

The Supreme Court, however, conclud-

ed that since normal pregnancy is an

objectively identifiable physical condi-

tion, distinctions involving pregnancy do

not constitute sex-based classifications

unless they are shown to be mere pre-

texts for invidious discrimination against

one sex or the other. By applying the

rational relationship test, the Court then

found that California’s exclusion of such

disabilities from the fund’s coverage was

consistent with the equal protection

clause. But perhaps more significant

than its holding is the fact that, in

reaching its conclusion that “this case is

thus a far cry from cases . . . in-

volving discrimination based on gender

as such,” Id. at 496 n. 20, 94 S.Ct. at

2492, the Court felt it necessary neither

to distinguish nor even to mention the

EEOC’s contrary view under Title VII,

even though under appellants’ suggested

analysis the EEOC guideline would have

conclusively established that the exclu-

sion of pregnancy related disabilities

constituted illegal sex discrimination. In

our view, the unmistakable import of the

Supreme Court’s method of analysis is

that a constitutional challenge to a

method of classification must be decided

by constitutional standards, and that

while the EEOC guidelines are entitled

- lla -

TYLER v. VICKERY T3971

to great deference in determining what

Congress intended to accomplish through

Title VII, Albemarle Paper Co. v. Moody,

1975, —— U.S. —, 95 S.Ct. 2362, 44

LEd.2d —, they do not carry similar

weight in interpreting the minimum

commands of the fourteenth amendment.

Our reading of this decision is in ac-

cord with recent decisions of other Cir-

cuits. As might be expected, the contin-

uing viability of the EEOC temporary

disability guidelines following Geduldig

was drawn into question by a number of

employers who argued essentially the

other side of the coin appellants urge

here; i. e., since differing treatment of

pregnancy-related disabilities is not in-

vidiously discriminatory for the purposes

of the equal protection clause, neither

should it be considered discriminatory

for the purposes of Title VII. To date,

this contention has been considered by

the Second, Third, and most recently, the

Fourth Circuits; all have rejected the

facile equation of Title VII and the four-

teenth amendment. As the Second Cir-

cuit put it:

Title VIi is legislation of this na-

ture, designed to prohibit a broad

spectrum of discriminatory evils which

Congress deemed would have such an

adverse effect. There is no require-

ment that the discriminatory practices

forbidden by this statute should be

limited to practices violative of the

Equal Protection Clause. Practices

forbidden by Title VII and the EEOC

guidelines issued thereunder may,

nonetheless. be able to survive Equal

Protection attack.

& Although not necessary to our reliance on

them, each of these decisions also found the

EEOC guidelines on treatment of pregnancy

related disabilities to be a valid interpretation

of Title VII.

Communications Workers of America v.

American T. & T., 2 Cir. 1975, 513 F.2d

1024, 1031 (emphasis added). Accord,

Wetzel v. Liberty Mutual Ins. Co., 3 Cir.

1975, 511 F.2d 199, cert. granted, ——

U.S. ——, 95 S.Ct. 1989, 44 L.Ed.2d 476;

Gilbert v. General Electric Co., 4 Cir.

1975, —— F.2d ——.* This is of course

the crux of our refusal to measure the

constitutionality of the Georgia bar ex-

amination by Title VII standards.’

{7] But because we find no basis for

holding that a bar examination must be

professionally validated or that bar ex-

aminers are required to demonstrate the

unavailability of alternative means of

measuring professional competence, see

29 C.F.R. § 1607.3 (1974), does not mean

that the “job-relatedness” of an exami-

nation has no relevance to its constitu-

tionality. The hallmark of a rational

classification is not merely that it differ-

entiates, but that it does so on a basis

having a fair and substantial] relationship

to the purposes of the classification.

Reed v. Reed, 1971, 404 U.S. 71, 92 S.Ct.

251, 30 L.Ed.2d 225. What we do hold,

however, is that the necessary relation-

ship must be determined by constitution-

al, not statutory, standards."*

{8,9} Assuming we find that tradi-

tional methods of equal protection analy-

sis are applicable, appellants alternative-

ly contend that the correct standard of

review is not the “rational relationship”

test relied on by the district court, but

the “compelling state interest” test uti-

lized when state action creates a racial

or other “suspect classification” or im-

pinges on a judicially-declared “funda-

%. Significantly, two of the Circuits on whose

decisions appellants rely are among the three

which have refused to equate Title VII and the

fourteenth amendment in interpreting Gedul-

dig

1@. See text accompanying note 11, infra.

- l2a -

7398 TYLER v. VICKERY

mental interest.” The gravamen of

their argument is that the disproportion-

ate passing rates of black and white ap-

plicants on the examination serve to cre-

ate the classification based on race which

is needed to trigger strict judicial scruti-

ny. The difficulty with this position,

however, is that it stands in the face of

a clear body of law holding that an oth-

erwise legitimate classification does not

become constitutionally “suspect” simply

_ because greater numbers of a racial mi-

nority fall in the group disadvantaged by

the classification. Jefferson v. Hackney,

1972, 406 U.S. 535, 92 S.Ct. 1724, 32

L.Ed.2d 285; James v. Valtierra, 1971,

402 U.S. 137, 91 S.Ct. 1331, 28 L.Ed.2d

678. Cf. Geduldig v. Aieilo, supra (preg-

mancy not necessarily a sex-based classi-

fication even though only women may

become pregnant).

James, for example, concerned the

constitutionality of a California constitu-

tional provision which required approval

by referendum for low-income housing

projects. One of the plaintiffs’ primary

strategies in attacking this constitutiona!

provision was to attempt to bring it

within the ambit of Hunter v. Erickson,

1969, 393 U.S. 385, 89 S.Ct. 557, 21

L.Ed.2d 616, which only two years before

had struck down a city charter amend-

ment requiring voter approval of certain

antidiscrimination ordinances on the

ground that the amendment created a

classification based on race. The James

plaintiffs argued, successfully at the

three-judge court level, that the Califor-

nia provision likewise created a racial

classification because of the high statisti-

cal correlation between the poor and ra-

cial minorities. The Supreme Court,

however, rejected the analogy and re-

versed, stating:

Unlike [Hunter], it cannot be said

that California's Article XXXIV rests

on “distinctions based on race.” Id., at

391, 89 S.Ct. [557] at 561. The Article

requires referendum approval for any

low-rent public housing project, not

only for projects which will be occu-

pied by a racial minority. And the

record here would not support any

claim that a law seemingly neutral on

its fact is in fact aimed at a racial

minority. Cf. Gomiilion v. Lightfoot,

364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d

110 (1960). The present case could be

affirmed only by extending Hunter,

and this we decline to do.

402 U.S. at 141, 91 S.Ct. at 1333.

Likewise, in Jefferson v. Hackney, su-

pra, the Court brushed aside the “naked

statistical argument” that it was uncon-

stitutional to fund an AFDC program at

a lower percentage of recognized need

than other categories of assistance be-

cause of the higher percentage of minor-

ity recipients in the AFDC category with

the observation that

[t]he acceptance of appellants’ consti-

tutional theory would render suspect

each difference in treatment among

the grant classes, however lacking in

racial motivation and however other-

wise rational the treatment might be.

Few legislative efforts to deal with

the difficult problems posed by current

welfare programs could survive such

scrutiny, and we do not find it re-

quired by the Fourteenth Amendment.

406 U.S. at 548—49, 92 S.Ct. at 1732.

Appellants seek to avoid the thrust of

these decisions by arguing that they are

distinguishable as “social welfare” deci-

sions. Noting that the Supreme Court

has frequently held that states are to be

allowed greater latitude in formulating

economic and social welfare policy than

in other areas, Geduldig, supra, 417 U.S.

at 495, 94 S.Ct. 2485; Dandridge v. Wil-

- l3a -

TYLER v. VICKERY T3998

liams, 1970, 397 U.S. 471, 486-87, 90

S.Ct. 1153, 25 L.Ed.2d 491 they remind

us that the right to practice law in Geor-

gia is not a resource which the state may

either conserve or allocate. However,

this purported distinction misses the

point. The difference between economic

and socia] welfare cases and others lies

in the precision with which the state is

required to draw classifications in seek-

ing to achieve its objectives, and not in

the amount of adverse impact on minori-

ty groups which is permissible before an

otherwise legitimate classification be-

comes constitutionally “suspect.”

Thus, for example, 2 state may consti-

tutionally presume that widows are more

im need of financial assistance than wid-

owers when legislating a property tax

exemption, Kahn v. Shevin, 1974, 416

U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189,

or that AFDC recipients require a lower

percentage of need than those in other

categories of assistance, Jefferson v.

Hackney, supra, despite the fact that

these classifications are demonstrably

both over- and underinclusive; however,

a state may not similarly assume that

men make better estate administrators

than women in the sole interest of elimi-

nating a class of contests for letters of

administration. Reed v. Reed, supra.

But, no one would seriously contend that

any economic resource, however, scarce,

could be conserved by denying its bene-

fits outright to a racial or other suspect

minority. See Shapiro v. Thompson,

1969, 384 U.S. 618, 633, 89 S.Ct. 1322,

1330, 22 L.Ed.2d 600 (“The saving of

welfare costs cannot justify an otherwise

invidious classification.”) However,

since Georgia bar examinees are not

judged on the basis of broad generaliza-

tions, but rather on the basis of individu-

alized determinations of whether each

applicant possesses the minimal compe-

tence required to practice law, the “so-

cial welfare” distinction simply has no

significance in this case.

[10] The foregoing of course does not

mean that any facially neutral method

of classification automatically escapes

more than minimal judicial scrutiny. An

apparently neutral scheme may be mere-

ly a subterfuge for invidious discrimina-

tion, Gomillion v. Lightfoot, 1960, 364

U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110, or

may be discriminatorily applied, Yick Wo

v. Hopkins, 1886, 118 U.S. 356, 6 S.Ct.

1064, 30 L.Ed. 220. Moreover, in appro-

priate cases this Court has held that stz-

tistical evidence of disparate racial im-

pact alone may establish a prima facie

case of racial discrimination, shifting to

the defendant the burden of demonstrat-

ing that invidious discrimination was not

among the reasons for his actions. Com-

pare Bing v. Roadway Express, Inc., 5

Cir. 1971, 444 F.2d 687 with Robinson v.

City of Dallas, 5 Cir. 1975, 514 F.2d 1271

[1975]. However, we need not decide if

this is a case where “statistics . ..

tell much, and Courts listen,” Alabama v.

United States, 5 Cir. 1962, 304 F.2d 583,

586, aff'd per curiam, 371 U.S. 37, 83

S.Ct. 145, 9 L.Ed.2d 112, because of our

prior conclusion that appellees have

carried their burden under Fed.2.Civ.P.

56 of demonstrating the absence of any

genuine issue of material fact regarding

intentional racial discrimination. Thus,

even were we to assume that the burden

of proof has shifted, it must also be

deemed to have been met.

Since the Georgia bar examination

does not establish a constitutionally sus-

pect racial classification and no claim is

made that a fundamental interest is.in-

volved, there is no legal basis for apply-

ing the compelling state interest test and

the proper standard of review becomes

the rational relationship test utilized by

- lé4a -

71400 TYLER v. VICKERY

the

Examiners, 1957, 353 U.S. 232, 77 S.Ct.

762, 1 L.Ed.2d 796 as authority for its

standard of review, erred in failing to

apply what they term the somewhat

stricter burden of rationality exemplified

by more recent decisions such as Reed v.

Reed, supra, on the ground that the ra-

cia] discrimination involved in this case is

even more highly suspect than the gen-

der-based discrimination in Reed.

Appellants’ argument for invoking

Reed is, of course, specious. As the Su-

preme Court succinctly stated in Jeffer-

son, supra, 406 U.S. 535, 547, 92 S.Ct.

1724, 1732: “The standard of judicial re-

view is not altered because of appellant’s

unproved allegations of racial discrimina-

tion.” This is not to say that Reed has

no relevance to this appeal; however, its

significance is of little comfort to appel-

lants. In our view, Reed and related

decisions such as Frontiero v. Richard-

son, 1973, 411 U.S. 677, 93 S.Ct. 1764, 56

L.Ed.2d 583, serve to reemphasize the

desirability and relative relationality, at

least outside the area of economic and

social welfare programs, of classifica-

tions which act directly upon the quality

they purport to measure as compared to

classifications which attempt to achieve

their intended objectives through indi-

rection, often by the use of ill-fitting

and stereotyped generalizations. Since,

as we have previously noted, the Georgia

bar examination provides an individual,

anonymous determination of each appli-

cant’s present competence to practice

law, it comports with this aspect of the

teaching of Reed and its progeny. Ac-

cordingly, the existence of these inter-

vening decisions in no way denigrates

the district court’s reliance on the Su-

preme Court’s earlier statement in

Schware, supra, 353 U.S. 232, 239, 77

S.Ct. 752, 756, 1 L.Ed.2d 796, that “{a]

state can require high standards of qual-

ification such as good moral character or

proficiency in its law, before it admits

an applicant to the bar, but any quailifi-

cation must have a rational connection

with the applicant’s fitness or capacity

to practice law,” as its source of authori-

ty for the appropriate standard of re-

view.

Appellant’s final argument regarding

inherent discrimination is that, even if

we should find the district court adopted

the correct standar of review, it im-

properly resolved disputed issues of fact

in reaching its conclusion that the bar

examination possesses a rational connec-

tion with an applicant’s fitness to prac-

tice law. This contention is simply de-

void of merit.

*11,12]) Appellants concede, as they

must, that the state has a legitimate and

substantial interest in excluding from

the practice of law those persons who do

not meet its standards of minimal com-

petence and that the Georgia examina-

tion, as presently constituted, tests skills

and knowledge which have a “logical,

apparent relationship” to those necessary

to the practice of law.

While appellants valiantly argue oth-

erwise, these facts are sufficient in

themselves to establish the rationality of

the bar examination in the constitutional

sense. If a state has the right to insist

on a minimum standard of legal compe-

tence as a condition of licensure, it

would seem to follow a fortiori that it

may require a demonstration of such

competence in an examination designed

to test the fundamental ability to recog-

nize and deal with legal principles.

Another important indicium of ration-

ality is that the Georgia bar examination

satisfies the two criteria of a rational

- 15a -

TYLER +. VICKERY 7ie1

examination we identified in Armstead

v. Starkville Municipal Separate School

Dist., 5 Cir. 1972, 461 F.2d 276, in which

we held the Graduate Record Examina-

tion to be an unconstitutional method for

selecting primary and secondary school

teachers. There we suggested that a ra-

tionally supportable examination should

1) be designed for the purpose for which

it is being used, and 2) utilize a cutoff

score related ‘to the quality the examina-

tion purports to measure. The Georgia

bar examination meets both qualifica-

tions. Both the essay and MBE portions

of the examination are designed solely to

assess the lega! competence of bar exam-

imees; and while the minimum passing

score of 70 has no significance standing

alone, it represents the examiners’ con-

sidered judgments as to “minimal compe-

tence required to practice law,” the pre-

cise quality (he examination attempts to

measure."!

[13] The disputed fact issues which

appellants claim necessitate a trial, such

as whether the bar examination covers a

sufficiently broad domain of subject

matter or tests an adequate range of

legal skills, are at botton only claims

that the examination could be improved.

While the difference between minimal

and strict scrutiny is necessarily a mat-

ter of degree, this argument overlooks

one of the most fundamental! distinctions

between the two standards of review—

the relevance of the availability of alter-

native means. While a party defending

a classification subject to strict judicial

scrutiny must demonstrate that the state

has no other available alternative which

impinges less on the protected interest

11. See also Baker v. Columbus Municipal Sep-

arate School Dist., 5 Cir. 1972, 462 F.2d 1112,

1114-15. While appellants suggest that there

is language in Baker which indicates that strict

scrutiny is generally applicabie to qualifying

involved, see, e. g., Shelton v. Tucker,

1960, 364 U.S. 479, 488, 81 S.Ct. 247, 5

L.Ed.2d 231, the focus of the rational

relationship test is not whether the state

has superior means available to accom-

plish its objectives, but whether the

means it has chosen is a reasonable one.

Viewed from this perspective, appellants’

asserted “fact issues” are simply not ma-

terial.

[14,15] The same observation applies

to appellants’ contentions that the bar

examination is irrationally administered

because its outcome depends so heavily

on the subjective grading judgments of

the examiners. Since subjective, as op-

posed to objective, grading is a necessary

corollary to the administration of essay-

type questions, an attack on subjective

grading per se must perforce include the

allegation that the use of essay examina-

tions is itself irrational. This contention

has uniformly been rejected by the

courts whch have considered it, for rea-

sons succinctly articulated in an unre-

ported opinion granting partial summary

judgment in one of the consolidated ac-

tions comprising this appeal. There the

court said:

The relevant question must then be

whether the passing of an examination

made up of subjective, essay-type

questions has a rational connection

with the applicant’s ability to practice

law in the State of Georgia. It is

beyond question that it does. While

plaintiff would apparently favor a

more objective type of examination,

much of an attorney’s actual work

once admitted into practice involves

the analysis of complicated fact situa-

examinations, the basis of our holding there

was the affirmance of an explicit finding of

purposeful racial discrimination. For this rea-

son, the compelling state interest test was the

appropriate standard of review in Baker.

- l6a -

74a TYLER v. VICKERY

tions and the application thereto of ab-

stract legal principles. Both in legal

practice and with these essay-type

questions, recognition of the legal

problem presented and well-reasoned

explication of the relevant considera-

tions is of utmost importance.

Banks v. Miller, Civil No. 15876 (N.D.Ga.,

August 11, 1972) (footnote omitted). Ac-

cord, Whitficld v. Illinois Board of Law

Examiners, 7 Cir. 1974, 504 F.2d 474,

477; Feldman v. State Board of Law

Examiners, 8 Cir. 1971, 438 F.2d 699,

702; Chaney v. State Bar of California,

9 Cir. 1967, 386 F.2d 962, 964, cert. de-

nied, 1968, 390 U.S. 1011, 88 S.Ct. 1262,

20 L.Ed.2d 162. Appellants’ further ar-

guments that the examiners should uni-

formly be required to use model answers

and pre-determined standards in grading

are again merely suggestions for im-

provement, and do not raise a fact issue

as to whether the examination itself is

rational.

{16} Finally, we flatly reject appel-

lants’ contentions that the Berrd’s prac-

tice of regrading failing papers falling

close to the passing mark, or of compar-

ing examination results with law school

records as an informal check on the ex-

aminers’ performance, is evidence of the

irrationality of the examination. We

fully agree with the statement in appel-

lees’ brief that “(t]he Constitution does

not require a perfect test nor should it

require the examiners to act as if the

test were perfect.” Indeed, it is curious

logic to condemn the examiners for uti-

lizing practices designed to recognize the

inherent limitations of testing and for

attempting to give the benefit of the

doubt to applicants who may have been

adversely affected by those limitations.

Similarly, we see no infirmity in the fact

that the standards for determining

which papers are to be regraded are not

fixed and immutable and may deyend in

part upon the exercise of an examiner's

discretion.

[17,18] Nor do we find it irrational

for the examiners to compare examina-

tion results with law school records as

one informal, after-the-fact means of

judging the quality of the examination.

Since Georgia as well as other states re-

quires graduation from law school or its

equivalent as a prerequisite to taking

the bar examination, a requirement

which appellants do not challenge here,

it is certainly reasonable to assume that

legal training is highly instrumental! in

developing the qualities that comprise

“minimal competence to practice law”

and that the overall performance of

graduates of various institutions bears

some logical relevance to how well the

examination is measuring these qualities.

The fact remains, of course, that each

applicant’s examination is graded. with-

out knowledge of his particular legal

background. Accordingly, we have no

hesitancy in affirming the district court’s

holding that the Georgia bar examina-

tion “has a rational relationship to an

applicant’s fitness to practice law.

Ill. DUE PROCESS REVIEW

[19] In addition to the equal protec-

tion claims we have previously discussed,

appellants also contend that the failure

to provide any procedure for review of a

failing grade at the behest of the exami-

nee constitutes a denial of due process of

iaw. The district court’s view was that

such review is not constitutionally re-

quired, pmmarily because an unqualified

right to retake the examination at its

next regularly scheduled administration

both satisfies the purposes of a hearing

and affords it protection. We agree.

- 17a

TYLER v. VICKERY 7483

The safeguards of the due process

clause are of course available to a failing

bar applicant. As the Supreme Court

stated in Schware, supra:

A State cannot exclude a person

from the practice of law or from any

other occupation in a manner or for

reasons that contravene the Due Proc-

ess or Equal Protection Clause of the

Fourteenth Amendment.

585 U.S. at 238-39, 77 S.Ct. at 756.

[20] While the opportunity to be

heard is generaily considered a funda-

mental component of due process, en-

titlement to a hearing does not automat-

ically flow from a finding that procedur-

al due process is applicable. See, e. g.,

North American Cold Storage Co. v. Chi-

cago, 1908, 211 U.S. 306, 29 S.Ct. 101, 53

L.Ed. 195. As the Supreme Court ob-

served in Hannah v. Larche, 1960, 363

U.S. 420, 442, 80 S.Ct. 1502, 1515, 4

L.Ed.2d 1307:

“Due process” is an elusive concept.

Its exact boundaries are undefinable,

and its content varies according to spe-

cific factual contexts. —

Whether the Constitution requires that

a particular right obtain in a specific

proceeding depends upon a complexity

of factors. The nature of the alleged

right involved, the nature of the pro-

ceeding, and the possible burden on

that proceeding, are all considerations

which must be taken into account.

{21} In the first instance, whether

due process requires a particular proce-

dure in a given situation must be deter-

mined by balancing the individual’s in-

terest in avoiding the loss which lack of

the procedure inflicts upon him against

the interests which the government

seeks to advance by denying it. Gold-

berg v. Kelly, 1970, 397 U.S. 254, 262-6,

90 S.Ct. 1011, 25 L.Ed.2d 287. In argu-

ing that this balance should be struck in

favor of allowing a failing bar examinee

a hearing, appellants rely heavily on an

applicant’s undoubted interest in pursu-

ing his chosen profession. But such re-

liance misses the mark. While this in-

terest is admittedly a weighty one in

determining whether due process protec-

tions are applicable, see Atlanta Attrac-

tions, Inc. v. Massell, N.D.Ga.1971, 332

F.Supp. 914, aff'd, 5 Cir. 1972, 463 F.2d

449, it militates similarly in favor of a

hearing only if hearings are demonstra-

bly more efficacious means of safeguard-

ing that interest than the unqualified

right of reexamination which Georgia

currently provides. We think they are

not.

First, since regularly scheduled exami-

nations are held every six months, and

each administration of the examination

produces scores of unsuccessful appli-

cants who would be entitled to hearings,

we think it unlikely that providing a

hearing would afford significantly quick-

er relief to an erroneously failed appli-

cant than would the right to retake the

examination at its next administration.

Second, we think it likewise unlikely

that a hearing would be significantly

more effective in exposing grading er-

rors than would reexamination. At a

hearing, the issue of course would not be

whether the examiner had given an ap-

plicant the “correct” grade, but rather

whether either a mechanical error had

been made in computing the grade or

the grade given by the examiner was

arbitrary, capricious, and without foun-

dation. Since “it is not to be presumed

that powers conferred upon the adminis-

trative boards will be exercised arbitrari-

ly,” Douglas v. Noble, 1923, 261 U.S. 165,

170, 43 S.Ct. 303, 305, 67 L.Ed. 590, we

may presume that such errors are infre-

quent. Even making the generous as-

- 18a -

Tie TYLER v. VICKERY

sumption that one out of every hundred

applicants who take the examination fail

when they should have passed due to

arbitrary grading, the probability that

the same individual would be the victim

of error after two reexaminations is lit-

erally one in a million." Since the hear-

ing process is itself susceptible to error,

we see little advantage to it on this

score.

The one area in which a hearing would

appear to be a superior remedy to reexa-

mination is in removing whatever stigma

may attach to an individual from having

previously failed the bar examination in

the rare case where the failure was un-

justified. Such undeserved stigma, how-

ever, is not only rare but far rernoved

factually from that occasioned by the

public “posting” as a drunkard which

was involved in Wisconsin v. Constanti-

neau, 1971, 400 U.S. 433, 91 S.Ct. 507, 27

L.Ed.2d 515; but more important, it alse

presents entirely different issues than

those involved when an individual is de-

nied admission to the bar on the ground

of moral unfitness. See Willner ¥. Corm-

mittee on Character and Fitness, 1963,

873 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d

224. Wi.ile an adverse determination on

character and fitness tends to exert a

continuing detrimental effect on an indi-

vidual’s opportunity to be admitted to

practice, unless and until rebutted, fail-

ure on a bar examination does not stig-

matize an individual as “incompetent,”

but merely indicates that he did not

demonstrate minimai competence on a

particular examination. Upon reexami-

nation, such an individual is entitled to

have his paper graded by the same stan-

dards as those of everyone else, and if he

passes, to be admitted on precisely the

same basis as an applicant who had not

previously taken the examination. For

these reasons, we consider the “liberty

interest” a failing examinee has at stake

to be a minor, if not a non-existent one.

Cf. Sims v. Fox, 5 Cir. 1974, 505 F.2d

857, 862-64 (en banc).

In contrast, we find the interests

which the state seeks to advance by sub-

stituting reexamination for a hearing to

be substantial. The most important of

these interests is, of course, avoidance of

the administrative burden which a hear-

ing requirement would entail. Since, as

we have noted, scores of applicants fail

the Georgia bar examination each time it

is given, and all examiners are involved

in the grading of each paper, the result

of requiring a hearing would be the im-

position of what the Seventh Circuit has

described as “an intolerable burden upon

the bar examiners,” Whitfield v. Illinois

Board of Bar Examiners, 7 Cir. 1974,

504 F.2d 474, 478, especially when one

considers that bar examiners are not

full-time administrators but practicing

attorneys. While such administrative

concerns are not in themselves control-

ling, they are certainly relevant, Richard-

son v. Perales, 1971, 402 U.S. 389, 406, 91

S.Ct. 1420, 28 S.Ct. 842, and become par-

ticularly so when the gains to be realized

through the imposition of an additional

administrative burden are as minimal as

they are here. Moreover, as Whitfield,

supra, has observed, the initiation of a

hearing requirement as a supplement to,

rather than as a substitute for, the right

of reexamination (as we are certain ap-

pellants view their due process claim)

might result in unfair disadvantage to

those applicants taking the examination

for the first time.

12. See Comment, Review of Failing Bar Examinations: Does Reexamination Satisfy Due Process?,

52 Bos.U.L.Rev. 286, 301 N. 115.

TYLER v. VICKERY 7405

Finally, in weighing the “complexity

of factors” which serve to shape the con-

tours of the process which is due here,

we co not write on a clean slate. The

precise issue before us has been con-

sidered squarely by one Circuit, Whit-

field, supra, 504 F.2d 474, 477-79; infer-

entially by another, Chaney v. State Bar

of California, 9 Cir. 1967, 386 F.2d 962,

967, cert. denied, 1968, 390 U.S. 1011, 88

S.Ct. 1262, 20 L.Ed.2d 162; and in dic-

tum by a third, Feldman v. State Board

of Law Examiners, 8 Cir. 1971, 438 F.2d

699, 708 n. 6. All have concluded, as

we, that a hearing is not required.

tion that the balance we have struck is

the proper one.

Accordingly, since the record reveals

no disputed issues of material fact and

the applicable principles of law clearly

demonstrate that appellees are entitled

to prevail, the district court’s award of

summary judgment to appellees is

Affirmed.

ADAMS, Circuit Judge (dissenting):

Since I believe the majority decision

rests upon a tenuous resolution of pivot-

al factual issues in a troublesome area of

the law where residual doubts at this

stage of the proceedings should be re-

solved in favor of the plaintiffs, I must,

with deference to the comprehensive

opinion of the majority, dissent.

a

My dissent is based in large measure

on the nature of the uncontradicted facts

1. The fourteenth amendment provides in part:

“nor shall any State deny to any

person within its jurisdiction the equai protec-

tion of the laws.”

which plaintiffs have advanced te estab-

lish a case of racial discrimination viola-

tive of the equal protection clause of the

fourteenth amendment!

The central focus of this litigation is

that black applicants as a class have for

a period of years experienced a severely

disproportionate number of failing marks

on the Georgia bar examination. As the

majority opinion candidly concedes, this

situation reached a nadir in July, 1972,

when wach of the 40 black applicants

failed; and continued in February and

July, 1973, when more than one-half the

black applicants were unsuccessful, com-

pared to a failure rate of one-fourth to

one-third among white examinees.

b.

The administration of a state policy

that is neutral on its fact but which re-

sults in unequal application to those enti-

tled to be treated alike is not in itself a

denial of equal protection. Rather, it

must be demonstrated that there is

present an element of purposeful dis-

crimination. Such purposeful discrimi-

nation, however, may be evidenced by a

systematic, long-continued pattern of un-

equal results.?

A colorable case of purposeful racial

discrimination is set forth where sus-

tained de facto discrimination is shown

together with the absence of an investi-

gation, or indeed any effort, by the ad-

ministrators of the state program in

question to ascertain whether the seem-

ingly purposeful discrimination is inten-

tional in fact or is explainable by the

circumstances.’ This is so because a pre-

2. Snowden v. Hughes, 321 U.S. 1, 8-9, 64 S.Ct,

397, 88 L.Ed. 497 (1943).

3. Hill v. Texas, 316 U.S. 400, 404, 62 S.Ct.

1159, 86 L.Ed. 1559 (1942); Hawkins v. Town

of Shaw, 437 F.2d 1286, 1288 (5 Cir. 1971),

- 20a -

1406 TYLER v. VICKERY

sumption of racial inferiority is simply

not permissible.‘

c.

Guard. Inc. v. Members of

Bridgeport Civil Service Comm’n® was a

suit by nearly all the black policemen of

the City of Bridgeport who had not

passed a particular civil service examina-

tion. The Second Circuit held that the

defendants had a heavy burden to meet

the plaintiffs’ prima facie case of invidi-

ous discrimination in view of a practice

that resulted in a disparity of substantial

magnitude between the hiring of whites

and blacks. This Court has stated that

“{wJhenever the effect of a law or policy

{use by school district of a 1,000 cut-off

score in the National Teachers Examina-

tion as a condition of employment] pro-

duces... a (significant] racial

distortion it is subject to. strict

scrutiny.” *

Based on a fair reading of the plead-

ings and the depositions here—with all

inferences resolved in favor of the plain-

tiffs, as required on summary judg-

ment—it would appear that the defend-

ants have not met their burden of dis-

proving purposeful discrimination in the

application of the Georgia bar examina-

tion.

The plaintiffs have raised the question

whether black examinees, although ini-

tially anonymous, can be racially identi-

fied by graders of the essay portion of

modified en banc on other grounds, 461 F.2d

1171 (1972); see Armstead v. Starkville Mu-

nicipal Separate School Dist., 461 F.2d 276,

279-280 (5 Cir. 1972).

4 Brown v. Allen, 344 U.S. 443, 471, 73 S.Ct.

397, 97 L.Ed. 469 (1953).

& 482 F.2d 1333, 1337 (2d Cir. 1973).

@ Baker v. Columbus Municipal Separate

School District, 462 F.2d 1112, 1114 (5 Cir.

1972).

the examination because of the use of

“Black English.” As the majority prop-

erly points out, proof of identification of

bar examinees by race may be difficult.

However, the difficulty of proof does not

eliminate its possibility. Surely such dif-

ficulty, without more, should not bar, in

the context of this case, affording the

plaintiffs the opportunity of offering

any such evidence at trial.

In addition, the use of the objective

MBE in combination with the essay ex-

amination raises a question of the

weight accorded each when the examin-

ers come to the point of ascertaining

final grades. Also, the selection of cut-

off scores, especially when such seiection

is not subject to review, may be arbi-

trary. The legality of such decisions

may not properly be resolved by mere

reference to the good faith judgment of

the bar examiners.’

d.

The reliance by the district court and

the majority on Schware v. Board of Bar

Examiners* would wzppear to be mis-

placed. Schware dealt with the case of

a single, white law school graduate de-

nied the right to take the New Mexico

bar examination on the ground that he

was “morally unfit.” The Supreme

Court decided that the New Mexico bar

examiners did not have a rational basis

for denying the plaintiff that right. The

Court was not called upon to consider

7. Id. at 1114. I do not mean by this statement

to impugn the integrity of the examiners.

Rather, I suggest only that it is not appropri-

ate to foreclose an attempt by plaintiffs to

establish this fact.

8 353 U.S. 232, 77 S.Ct. 752, 1 LEd2d 796

(1957).

- 2la -

TYLER v. VICKERY T4H

the question whether more than a ra-

tional basis for denying admission to the

bar examination to Schware was re-

quired.

e.

The EEOC guidelines for employment

testing ® and the principles enunciated in

Griggs v. Duke Power Co.“—both of

which require a validation of a suspect

employment test—are at least persuasive

as to the criteria to be applied to the

Georgia bar examination under the facts

of this case. As plaintiffs point out, the

examination here, although not adminis-

tered by an “employer” for the purpose

of hiring, is for all practical purposes an

employment test. The applicant who

fails it may not, in any respect, be em-

ployed to practice law within the state.

Moreover, the philosophy underlying

the Civil Rights Act would appear to

encompass this type of examination. As

the Supreme Court pointed out in

Griggs: “Under the Act, practices, pro-

cedures, or tests neutral on their face,

and even neutral in terms of intent, can-

not be maintained if they operate to

‘freeze’ the status quo of prior discrimi-

natory employment practices.” "'

The majority declares that Allen v.

Mobile™ does not permit the Griggs

standard to be applied in an area other

than that to which the Civil Rights Act

is expressly directed. In Allen this

Court, without referring to Griggs or the

EEOC guidelines, affirmed per curiam

the decision of the district court judge,

® Interpreting and implementing Title VII of

the Civil Rights Act of 1964 as amended, 42

U.S.C.A. § 2000e.

1@ 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158

(1971).

Il. Id at 430, 91 S.Ct. at 853.

12% 466 F.2d 122 (5 Cir. 1972), cert. denied, 412

U.S. 909, 93 S.Ct. 2292, 36 L.Ed.2d 975 (1973).

reached after trial, that an alleged dis-

criminatory written test used for pro-

moting police officers was reasonably or

rationally job-related. Judge Goldberg

dissented on the ground that the distvict

court, and the majority in affirming the

district court, had misconstrued the stan-

dard Griggs required.“ Neither the per

curiam affirmance of the trial court’s

holding in itself nor the per curiam as

clarified by the dissent warrants a rejec-

tion out of hand of any utilization what-

ever of either the Griggs’ standard or

the EEOC guidelines.

f.

Nor do I believe that the recently de-

cided Geduldig v. Aiello,“ reiied on by

the majority, is in any way controlling.

The facts and governing law of Geduldig

are substantially distinguishable from

those here. The California unemploy-

ment compensation disability fund,

which is supplementary to the state’s

workmen’s compensation program, ex-

cludes from its coverage disabilities re-

sulting from normal pregnancy and

childbirth. The Supreme Court, in re-

viewi” zg the exclusion of pregnancy and

childbirth coverage, did not apply EEOC

directives on pregnancy because no in-

vidious discrimination was perceived. A

state social welfare program necessarily

must draw a line somewhere, the Su-

preme Court stated. The exclusion of

one disability was not suspect where oth-

er comparable disabilities were also ex-

cluded.“ The particular disability was

13. Id. at 126.

14. 417 U.S. 484, 94 S.Ct. 2485, 41 L-Ed.2d 256

(1974).

15. Compare James v. Valtierra, 402 U.S. 137,

91 S.Ct. 1331, 28 L.Ed2d 678 (1971) with

Hunter v. Erickson, 393 U.S. 385, 89 S.Ct. 557,

21 LEd.2d 616 (1969).

- 22a -

7408 TYLER v. VICKERY

— <<

sex-related but the decision to exclude it

from coverage, said the Supreme Court,

was not predicated on sex but on the

limited financial resources available in

the compensation fund. Such reasoning

is not apposite here.

g-

Plaintiffs in this case have established

what amounts to an exclusion from job

opportunities of a disproportionate num-

ber of blacks. These facts call for a

stricter standard of review than the

standard the majority approves today.

Of even more significance, in a case of

this importance where one of the key

factors in determining illegality will be

the evaluation of motive, it seerns partic-

ularly inappropriate to employ the device

of summary judgment.“ Summary

judgment may be used only when no

genuine issues of fact remain unresolved.

For all the reasons pointed out above,

I would reverse the grant of summary

judgment and remand the case to the

district court for a trial on the merits.

16. Poller v. Columbia Broadcasting System, 368 U.S. 464, 473, 82 S.Ct. 486, 7 L.Ed.2d 458

(1962)...

Adm. Office, U.S. Courts—West Publishing Company, Saint Paul, Minn.

- 23a -

United States Court of Appeals

Fifth Circuit

Office of the Clerk

September 26, 1975

TO ALL COUNSEL OF RECORD

No. 74-3413 - Eugene W. Tyler vs.

Trammell E. Vickery,

et al.***Ralph Banks,

Jr. vs. Trammell E.

Vickery, et al.***

James E. C. Perry, et

al. vs. Edward S. Sell,

JE., @t Oke

Dear Counsel:

This is to advise that an order has tHis

day been entered denying the petition() for

rehearing, and no member of the panel nor

Judge in regular active service on the Court

having requested that the Court be polled

on rehearing en banc (Rule 35, Federal

Rules of Appellate Procedure; Local Fifth

Circuit Rule 12) the petition() for rehear-

ing en banc has also been denied.

See Rule 41, Federal Rules of Appellate

Procedure for issuance and stay of the

mandate.

Very truly yours,

EDWARD W. WADSWORTH,

Clerk 7

By s/Clare F. Sachs

Deputy Clerk

- 24a -

[Filed June 27, 1974]

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

JAMES E. C. PERRY, et al.,

vs. C.A. No. 17688

EDWARD S. SELL, JR., et al.

RALPH BANKS, JR., C.A. No. 15867

vs.

TRAMMELL E. VICKERY, et al.

EUGENE W. TYLER,

vs. C.A. No. 15866

TRAMMELL E. VICKERY, et al.

ORDER

This is a class action for declaratory

and injunctive relief brought under the

Civil Rights Acts of 1866 and 1871, 42

U.S.C. §§1981, 1983, alleging that the

defendants, individual members of the

Georgia State Board of Bar Examiners and

certain other public officials, discrimina-

ted against black persons in the adminis-

- 25a -

tration of the Georgia bar examination.?

Federal jurisdiction is invoked pursuant to

28 U.S.C. §1343. The case is now before

the Court for consideration of defendants'

motion for summary judgment. Defendants

urge that there is no genuine question of

fact as to any material issue and there-

fore, pursuant to Fed.R.Civ.P. 56, judg-

ment should issue in their favor. In

ruling upon this motion the court will

examine each issue presented to determine

what, if any, issues require a trial for

resolution.

1. The named plaintiffs seek

declaratory and injunctive relief on

behalf of themselves and the following

class of persons: Those black law school

graduates who have taken and failed the

Georgia bar examination and have not

subsequently passed the examination or

otherwise been admitted to practice law

in Georgia. Also to be included within

the class are those black law school

graduates who will take the bar examination

in the future. Perry v. Sell, Civ. No.

17688 (N.D. Ga., Sept. 27, 1973).

- 26a -

I. INTENTIONAL DISCRIMINATION

The plaintifs allege that defendants

have purposely discriminated on the basis

of race against black applicants in the

grading of the Georgia bar examination.

From a review of the entire record, the

Court finds this accusation in the plead-

ings to be totally without factual founda-

tion.

The uncontradicted facts in the

record show that ail bar examination papers

are graded by number only. These numbers

are drawn on separate cards by the appli-

cants on the first day of the examination,

their names put thereon, and sealed in

envelopes by the examinees. Thereafter,

these cards, which match the identification

number used on the applicants’ examinations

with the name of each applicant, are kept

in a sealed container until grading is

completed. The depositions further verify

that the examiners do not have knowledge

of the identity or race of any applicant

during the grading process. The possibility,

as plaintiffs contend, of an examiner learn-

ing the name or race of an applicant by

looking at his application or name card has

no effect on the grading since an applicant's

number cannot be ascertained by this method.

Mere allegations by plaintiffs that an

Opportunity is presented in this procedure

to discover an examinee's name or race is

unsupported by any evidence of specific

- 27a -

2

facts or knowledge on their part.

Fed.R.Civ.P. 56 provides that when a

moving party supports its motion for

summary judgment by evidence, the opposing

party must then set forth evidence showing

a genuine issue of fact justifying a trial.

A party opposing the motion for summary

judgment "may not rest upon the mere

allegations or denials of his pleadings,

but his response, by affidavits or other-

wise. . . must set forth specific facts

showing there is a genuine issue for trial."

Fed.R.Civ.P. 56. Accordingly, as the

defendants’ evidence on the question of

the examiners' knowledge of an applicant's

identity has ‘not been contradicted by

plaintiffs, summary judgment for defendant

is proper on this issue.

II. ARBITRARINESS

Plaintiffs allege that defendants

2. Plaintiffs also allege that blacks

have a unique writing style which is easily

detected by the examiners. No factual

support is offered for this proposition and

the occurrence of such a fact has been

denied by each defendant. Furthermore,

since February, 1972, the Multistate Bar

Examination (MBE), adopted in Georgia,

has offered an objective assessment of an

examinee's legal knowledge. Of the forty

black persons who took the July, 1972

examination, only one passed the MBE but

failed the total examination. Similar

experiences have been found to exist on the

subsequent examinations. The Director of

[footnote continued to next page]

- 28a -

are granted undue discrection, allowing

arbitrary action, in the grading process.

No specific facts are given to support

this allegation. On the other hand, the

depositions of the examiners clearly demon-

strate to the Court that the examination

papers are fairly and carefully graded.

Each bar examiner grades all the applicants

on each essay question which he has devised.

The depositions show that each examiner

looks for the minimal competence which in

his judgment is a prerequisite to practice

law. Further, the effect of any uncon-

scious error in grading is greatly al-

leviated by the fact that several examiners

independently grade the essay portion of the

test which accounts for fifty percent of

the total examination. Although the final

decision to certify an applicant is a

matter of judgment, no facts are before

the Court to indicate that the judgment

is not exercised fairly and consistently.

III. INHERENT DISCRIMINATION

The plaintiffs' next contention is

that the bar examination, as presently

devised, inherently discriminates against

black applicants. In this regard, the

facts are undisputed that a greater per-

centage of black applicants fail the

examination than their white counterparts.

[footnote continued from preceding page]

testing for the National Conference of Bar

Examiners testified by deposition that it

would be impossible for a state board of

examiners to know where to set the passing

level to intentionally achieve this result.

OO EO

- 29a -

On the February, 1973 examination, 59 per-

cent of all black applicants failed the test

while only 34 percent of white applicants

failed. On the July, 1973 exam, 55 percent

of the black and 23 percent of the white

applicants failed the examination. Similar

disparities exist between the black and

white applicants for prior examinations.

All facts relating to the preparation

of the Georgia bar examination have been

set forth in the depositions of the examiners

(as to the essay portion). The method of

grading and the methods by which the cutoff

score is determined have beeneexplained at

length. The record presents no material

disputed facts. All that remains is for the

Court to determine, as a matter of law,

(1) whether the examination has a rational

relationship to an applicant's fitness to

practice law; and (2) whether any person

has been excluded on the basis of im-

permissible criteria. It is not this

court's function to pass independently on

the qualifications of applicants.

The attack upon the present examina-

tion system focuses on the fact that a

greater percentage of blacks, than whites,

fail the examination, thus its form and

content is inherently discriminatory and

must be justified. In this regard, it

was made clear in Schware v. Board of

Examiners, 353 U.S. 232 (1957), that

a state may establish high standards for

admission to the bar. Likewise, the

Courts have uniformly held that a state may

require that applicants meet certain pre-

requisites "which have a rational connec-

tion with the applicant's fitness or

capacity to practice law." Id. at 239.

- 30a -

The fact that a policy of high admission

standards falls somewhat disproportionately

upon blacks does not itself constitute a

violation of the fourteenth amendment,

unless the standards are shown to be arbi-

trary or applied differently to blacks.

Plaintiffs argue that since a dis-

proportionate number of black applicants

are unsuccessful in passing the bar examina-

tion, a presumption of discrimination

exists, which presumption is binding until

defendants offer a legal explanation. An

analogy is urged in the effect given

racial disparity in job qualifications.

In the area of employment examinations,

once de facto discrimination is shown, the

Courts place the burden on the employer

to prove that an examination is job related.

See Griggs v. Duke Powere Co., 401 U.S. 424

T1971). Without adopting such a test as

applicable to equal protection analysis,

this Court fails to find evidence before

the Court to support a factual issue that

the Georgia bar examination does not have a

reasonable reiationship with the practice

of law. On the contrary, defendants have

clearly shown that such a relationship does

exist. An examination made up, at least

in part, of hypothetical essay questions is

the recognized method by which to determine

whether to admit candidates to the bar.

Defendants demonstrate that the factors

looked for in the answers to the essay

questions test the applicant's ability

to apply basic legal principles to hypo-

thetical fact situations. This type of

exam has a rational relationship to an

applicant's fitness to practice law,

satisfying the traditional standard set

down in Schware.

POs 5 ns Alls Se i

cite Dias ete ae EO A ANT CR te LI Ae eA Rest En tte Mt al A en em

a... Lees eee

- 3la -

Other courts have also found this

relationship to exist. In Chaney v. State

Bar of California, 386 F.2d 962 (oth Cir.

1967), Similar arguments were made challeng-

ing a hypothetical essay type examination.

The Court stated:

[I]t seems patent on its face

that California has the right

to . . . use such a type of

examination in demonstration by

those seeking admission to its

Bar, as a qualification stan-

dard, that they have the capacity

to analyze general legal situations

and to make application thereto

of such general legal knowledge

as can be expected to be pos-~-

sessed by the graduates of accredi-

ted law schools. The existence

of this qualification certainly

has a rational connection with

the capacity to practice law,

for it inherently is the primary

basis of general legal service.

And of course there also is

involved in such an essay exami-

nation an indication as to the

possession or lack of knowledge

in the legal fields to which

the questions relate.

Id. at 964. A perusal of both the essay

and multi-state objective questions used

on past examinations further convinces the

Court of the strong relationship. Both

require an exercise of the analytical and

reasoning capacity of the applicant-~--~

necessary requirements for the practice of

law. Accordingly, summary judgment on the

- 32a -

issue of inherent discrimination is granted

in favor of the defendants.

IV. DENIAL OF DUE PROCESS

Plaintiffs also contend that because

there is no ascertainable standard with

which they can compare their performance

on the bar examination and no right of

administrative review they have been denied

their right to pursue their chosen profes-

sion without due process of law. It is

clear that no direct review of the grade

received on the examination is provided

for and the bar bar examiners refuse to

reconsider a grade. No factual issue

exists in this regard as it is merely a

question of law whether due process has

been denied in this procedure.

Bar examinations clearly do not lend

themselves to a review process. Allowance

of such would certainly result in shifting

and diverse standards. With a recognition

of this fact, provision has been made in

Georgia for the reexamination of the failing

applicant at the next regularly scheduled

examination. This Court finds that the

purpose of a hearing is better served by

a reexamination of the failing applicants.

Likewise, such a reexamination also affords

the protections provided by a hearing.

Accordingly, summary judgment is granted

in favor of the defendants in each case.

IT IS SO ORDERED this 27th day of

June, 1974.

s/William C. O'Kelley

William C. O'’Kelley

United States District

Judge

ne Lae ile ee eee mba ie eek Nes ae

2

)

|

:

2

)

- 33a -

[Filed Sep. 27, 1973]

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

JAMES E.C. PERRY, et al. ]

]Civil Action

Vs. ] No. 17688

]

EDWARD S. SELL, JR., et al. ]

ORDER

This is an action for declaratory and

injunctive relief against members of the

Georgia State Board of Bar Examiners and

certain other public officials alleging

racial discrimination in the admission of

black applicants to the Georgia Bar. The

plaintiffs have brought this action as a

class action under Rule 23 of the Federal

Rules of Civil Procedure. Presently before

the Court is the question of the scope of

the class to be represented by the named

plaintiffs.

The complaint requests relief on

behalf of the named plaintiffs and all

other black law school graduates who have

failed the Georgia bar examination and those

black law school graduates who will take

the examination in the future. This pro-

posed class would include black applicants

who have failed the Georgia bar examination

at one time, but who have subsequently

passed the exam. This Court feels that

the class as so defined is too broad,

since some of its members are now admitted

to practice law in Georgia.

- 34a -

Accordingly, the Court defines the

class to be represented by the named plain-

tiffs in this case as follows: Those black

law school graduates who have taken and

failed the Georgia bar examination ana

have not subsequently passed the examina-

tion or have not otherwise been admitted

to practice law in Georgia. Also included

are those black law school graduates who

will take the Georgia bar examination in

the future.

IT IS SO ORDERED this 27th day of

September, 1973.

s/William C. O'Kelley

William C. O'Kelley

United States District

Judge

- 35a -

[Filed Aug. 14, 1972]

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

EUGENE WILSON TYLER ]

] CIVIL ACTION

Vs. ]

] NO. 15866

TRAMMELL VICKERY, ET AL. ]

ORDER

Plaintiff has filed this civil suit

against the individual members of the

State Board of Bar Examiners charging

that defendants in their practices and

procedures, in particular their devising

of examinations and the grading thereof,

have discriminated against blacks and

against the plaintiff, a black man, on

the basis of race. The cause of action

is predicated on 42 U.S.C. §§1981 and

1983 and the Fourteenth Amendment. The

jurisdiction of this court is invoked

under 28 U.S.C. §1343. The action has

been submitted on defendants' motion for

summary judgment. Defendants argue that

there is no genuine question of fact as

to any material issue and that therefore

judgment should issue for the defendants.

In considering this motion the court will

examine each of the issues presented in

order to determine that [sic], if any,

issues, will require a trial for resolu-

tion.

- 36a -

I - ARBITRARY AND HYPOTHETICAL

QUESTIONS

Plaintiff alleges that the ques~

tions asked on the State Bar Examination

were arbitrary, hypothetical, and with-

out foundation in law or equity. It is

argued that these questions, because of

their arbitrary and hypothetical nature,

have no correct answer, and that thus

the grading thereof is arbitrary and ac-

cording only to the whim of the respon-

dents. Plaintiff asserts that the

grading thereof is based upon the exami-

ners' like or dislike of the reasoning

or the manner in which the answer is

given. Plaintiff claims that the type

of questions and the arbitrary grading

methods abridge his privileges and im-

munities, deny him equal protection of

the laws and deprive him of due process

of the law.

It is the opinion of this court that

the attack upon the hypothetical nature

of the questions cannot be sustained.

The defendants do not contest plaintiff's

contentions that the questions are essay-

type and hypothetical and, indeed, have

submitted as evidence copies of the exami-

nation which plaintiff failed to pass.

The abstract nature of the questions is,

however, fully justified by law.

The leading case in the area of the

qualifications which a state can permis-

sibly impose upon applicants to the bar

is Schware v. Board of Bar Examiners,

353, U.S. 232 (1957).

A State cannot exclude a person

from the practice of law or from any

- 37a -

other occupation in a manner or for

reasons that contravene the Due

Process or Equal Protections Clause

of the Fourteenth Amendment. A

State can require high standards of

qualification, such as good moral

character or proficiency in its law,

before it admits an applicant to

the bar, but any qualification must

have a rational connection with the

applicant's fitness or capacity to

ractice law.

U.S. at 239 (emphasis added;

citations omitted).

The relevant question must then be

whether the passing of an examination

made up of subjective, essay-type ques-

tions has a rational connection with the

applicant's ability to practice law in

the State of Georgia. It is beyond ques-

tion that it does. While plaintiff would

apparently favor a more objective type of

examination/!, most of an attorney's

actual work once admitted into practice

involves the analysis of complicated fact

situations and the application thereto of

abstract legal principles. Both in legal

practice and with these essay-type ques-

tions, secognition of the legal problem

ji In this regard it is interesting to

note that as of the February, 1972, bar

examination, a large part of the examina-

tion is now made up of objective, multi-

choice type questions which are compiled

by the National Testing Service and em-

ployed by numerous states as part of their

bar examinations.

- 38a -

presented and well-reasoned explication

of the relevant considerations is of

utmost importance.

A careful look at the examination

questions themselves leads the court to

conclude that, contrary to plaintiff's

assertions, the questions are based in

law and in equity. Supportive of the

State of Georgia's decision to employ

essay-type questions is the American Bar

Association's “Code of Recommended Stan-

dards for Bar Examiners," which states

that “The major portion of the bar exami-

nation should consist of questions in a

form of hypothetical fact problems re-

quiring essay answers." It is clear

then, that the use of essay questions in

Georgia Bar Examination is rationally

connected to an applicant's fitness to

practice law. Chaney v. State Bar, 386

F.2d 962 (9th Cir. 1967).

Plaintiff mounts a further attack

upon the essay-type questions in his

charge that such questions permit arbi-

trary and subjective grading which is

dependent upon the whim of the examiner

and upon the particular examiner which

happens to grade the paper, without

regard to correctness of the answer. If

the grading were done in a wholly arbi-

trary manner, it would be a violation of

the Due Process and Equal Protection

clauses of the Fourteenth Amendment.

Schware v. Board of Bar Examiners, supra.

On a motion for summary judgment,

the burden is on the moving party to

establish that there is no question of

fact as to any material issue. On the

issue of the grading of the examinations,

- 39a -

the defendants have presented no evi-

dence to establish that the grading is

not arbitrary or that respondents exer-

cise caution to insure that the grading

is as fair and uniform as possible.

With no evidence on this issue, the court

cannot rule that respondents have carried

the burden of showing that they are en-

titled to judgment as a matter of law on

this issue. Accordingly, the court holds

that the motion for summary judgment must

be denied on the question of the arbi-

trariness of the grading of the examina-

tions.

II - STATISTICS SHOWING SMALL

PERCENTAGE OF BLACK ATTORNEYS

PASSING THE BAR EXAMINATION

Plaintiff asserts that the bar exami-

nation discriminates against black appli-

cants. He alleges that while sixty per

cent of the white applicants passed the

June, 1971, bar examination, only fifteen

per cent (15%) of the black applicants

were successful on the examination. Fur-

ther, plaintiff alleges that of the

approximately 4,500 attorneys in Georgia,

only 1 1/2% thereof are black. It is

plaintiff's argument that these statis-

tics show racial discrimination in viola-

tion of 42 U.S.C. §1981l.

As is made clear in Schware, the

State of Georgia is free to establish

high standards for admission to the bar.

The fact that the high admission standards

may fall disproportionately upon blacks

does not constitute violation of §1981 or

of the Fourteenth Amendment, unless such

standards are arbitrary or are applied

more strictly to blacks than to other

- 40a -

applicants. The statistics, while they

may of course be introduced into evidence

on the issue of racially discriminatory

grading, do not of themselves establish

a prima facie case of violation of §1981

or the Pourteenth Amendment.

III - THE LACK OCF BLACK BAR

EXAMINERS

Plaintiff alleges that there has

never been a black member of the Board

of Bar Examiners and that such fact

constitutes racial discrimination per se.

The analysis of this allegation is

analogous to the court's treatment of

the issue of statistics. The fact, if

proved, that there are no black bar

examiners does not, of itself, establish

that there has been arbitrary and

racially discriminatory treatment of

applicants to the bar. An all-white

Board of Bar Examiners does not consti-

tute a per se violation of §1981 or of

the Fourteenth Amendment. It is true,

however, that proof of such allegation

might have some relevance to the question

whether the bar examiners have been arbi-

trary and racially discriminatory in the

grading of examinations.

IV - DENIAL OF RIGHT TO PRACTICE

IN FEDERAL COURT

Plaintiff alleges that the right to

practice in federal court is dependent

upon a license to practice in state court,

and that therefore the actions of the

defendants arbitrarily deprive him of a

federal privilege, in violation of the

Fourteenth Amendment.

- 4la -

However, although state bar admis-

sions are entitled to respect from the

federal courts, In Re Isserman, 345 U.S.

286 (1953), they are not conclusively

binding on the federal courts. In Re

Ruffalo, 390 U.S. 544 (1968). The

federal judiciary is just as autonomous

as the state courts where admission to

its own bar is concerned. See Theard v.

United States, 354 U.S. 278 (1957).

Defendants are thus not responsible

for plaintiff's not being admitted to

practice in federal district court. The

Local Rules of the United States District

Court for the Northern District of

Georgia, Rule 1, stating that any person

who is a member of the bar of the State

of Georgia shall be eligible for admis-

sion to practice in the federal court has

been adopted and enforced by this court,

not by defendants. Summary judgment must

therefore be granted to defendants on

this issue.

V - KNOWLEDGE BY EXAMINERS OF

NAMES OF EXAMINEES

Plaintiff alleges that the bar

examiners have access to the names and

numbers of all applicants during the

grading of the examinations. Defendants

have submitted evidence which tends to

refute this allegation.

An affidavit from Ben Estes, Admini-

strative Assistant to State Board of Bar

Examiners, sets forth in detail the pre-

cautions which are followed to insure

the secrecy of the identity of the

examinees. The examinations are marked

Only with the examination number, not the

- 42a -

name, of the applicant. The examination

numbers are drawn by the applicants on

the first day of the examination. Each

examinee then fills out a form with his

name, address and circuit and places the

form in the envelope which has his num-

ber on it. These envelopes are boxed

and taken to the State Treasurer's office

where they are locked in a vault until

the grading is complete. This evidence,

if not contradicted, would indicate that

bar examiners are not aware of the names

of the applicants whose papers they are

grading. Plaintiff has filed no brief

and no evidence to contradict this

affidavit.

Rule 56, Fed.R.Civ.P., provides that

if the moving party supports its motion

for summary judgment by evidence, the

party Opposing the motion must then set

forth specific facts showing that there

is a genuine issue of fact for trial.

As the evidence presented by the defen-

dants on the question of the examiner's

knowledge of the examinees’ names and

numbers has not been contradicted by the

plaintiff, summary judgment for the

defendants is proper on this issue and is

hereby granted.

VI - ALLEGATION THAT MANY BLACKS

DO NOT TAKE THE EXAMINATION

Plaintiff alleges that many blacks

do not take the bar examination because

of the high discriminatory action of the

defendants. Plaintiff, as he has taken

the bar examination, does not have stand-

ing to raise this issue.

Accordingly, the motion for summary

- 43a -

judgment is DENIED on the issue of the

allegedly arbitrary and racially dis-

criminatory grading of the bar examina-

tions. On all other issues presented by

the complaint, the motion for summary

judgment is GRANTED.

IT IS SO ORDERED.

This, the llth day of August, 1972.

s/Richard C. Freeman

RICHARD C. FREEMAN,

UNITED STATES DISTRICT JUDGE

- 44a -

[Filed Aug. 14, 1972]

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

RALPH BANKS, JR.

CIVIL ACTION

]

}

vs. }

] NO. 15867

HENRY J. MILLER, ET AL.

ORDER

Plaintiff has filed this civil suit

against the individual members of the

State Board of Bar Examiners charging that

defendants in their practices and procedures,

in particular their devising of examinations

and the grading thereof, have discriminated

against blacks and against the plaintiff,

a black man, on the basis of race. The

cause of action is predicated on 4? U.S.C.

§1983 and the Fourteenth Amendment. The

jurisdiction of this court is invoked under

28 U.S.C. §1343. The action has been sub-

mitted on defendants' motion for summary

judgment. Defendants argue that there is

no genuine question of fact as to any

material issue and that therefore judgment

should issue for the defendants. In con-

sidering this motion the court will examine

each of the issues presented in order to

determine what, if any, issues will require

a trial for resolution.

I - ARBITRARY AND HYPOTHETICAL

QUESTIONS

Plaintiff alleges that the questions

- 45a -

asked on the State Bar Examination were

arbitrary, hypothetical, and without

foundation in law or equity. It is argued

that these questions, because of their

arbitrary and hypothetical nature, have

no correct answer, and that thus the grad-

ing thereof is arbitrary and according

only to the whim of the respondents. Plain-

tiff asserts that the grading thereof is

subjective and is influenced by the defen-

dants' recognition of and prejudice against

the examination papers of black applicants.

It is the opinion of this court that

the attack upon the hypothetical nature of

the questions cannot be sustained. The

defendants do not contest plaintiff's con-

tentions that the questions are essay-~-

type and hypothetical and, indeed, have

submitted as evidence copies of the examina-

tion which plaintiff failed to pass. The

form and nature of the questions, however,

is fully justified by law.

The leading case in the area of the

qualifications which a state can permissibly

impose upon applicants to the bar is Schware

v. Board of Bar Examiners, 353 U.S. 2

A State cannot exclude a per-

son from the practice of law or

from any other occupation in a

manner or for reasons that contra-

vene the Due Process or Equal Pro-

tections Clause of the Fourteenth

Amendment. A State can require

high standards of qualification, such

as good moral character or profi-

ciency in its law, before it admits

- 46a -

an applicant to the bar, but an

qualification must have a rational

connection with the applicant's

fitness or capacity to practice

law.

353 U.S. at 239 (emphasis added;

citations omitted).

The relevant question must then be

whether the passing of an examination

made up of subjective, essay-type ques-

tions has a rational connection with the

applicant's ability to practice law in the

State of Georgia. It is beyond question

that it does. While plaintiff would

apprently fayor a more objective type of

examination/~, much of an attorney's actual

work once admitted into practice involves

the analysis of complicated fact situations

and the application thereto of abstract

legal principles. Both in legal practice

and with these essay-type questions,

recognition of the legal problem presented

and well-reasoned explication of the rele-

vant considerations is of utmost impor-

/ In this regard it is interesting to

note that as of the February, 1972, bar

examination, a large part of the examina-

tion is now made up of objective, multi-

choice type questions which are compiled

by the National Testing Service and

employed as part of the bar examinations

of numerous states.

- 47a -

tance.

A careful look at the examination

questions themselves leads the court to

conclude that contrary to plaintiff's

assertions, the questions are based in law

although often stated in terms of a hypo-

thetical fact situation. Supportive of the

State of Georgia's decision to employ

essay-type questions is the American Bar

Association's "Code of Recommended Standards

for Bar Examiners," which states that "The

major portion of the bar examination should

consist of questions in a form of hypothe-

tical fact problems requiring essay answers."

It is clear then, that the use of essay

questions in Georgia Bar Examination is

rationally connected to an applicant's

fitness to practice law. Chaney v. State

Bar, 386 F.2d 962 (9th Cir. 1967).

Plaintiff mounts a further attack

upon the essay-type questions in his

charge that in grading such questions, the

bar examiners are able to recognize and

discriminate against the papers of black

applicants. Plaintiff asserts that black

people have a unique means of expression

which, while educationally and legally

correct, is nonetheless distinguishable.

It is alleged that the defendants can

recognize those papers and discriminate

against them on the basis of race. It is

clear that if plaintiff's allegations can

be proved to be true, such arbitrary and

discriminatory grading would be a violation

of the Due Process and Equal Protection

Clauses of the Fourteenth Amendment.

Schware v. Board of Bar Examiners, supra.

- 48a -

On a motion for summary judgment, the

burden is on the moving party to establish

that there is no question of fact as to

any material issue. On the issue of the

grading of the examinations, the defendants

have presented no evidence to establish

that the grading is not arbitrary or that

respondents exercise caution to insure that

the grading is as fair and uniform as

possible. Neither have defendants submitted

any evidence which would tend to show that

they are unable to recognize the papers

of black applicants. With no evidence on

this issue, the court cannot rule that

respondents have carried the burden of

showing that they are entitled to judgment

as a matter of law on this issue. Accord-

ingly, the court holds that the motion for

summary judgment must be denied on the

question of the allegedly arbitrary and

discriminatory grading of the examinations.

II - STATISTICAL SHOWING SMALL

PERCENTAGE OF BLACK ATTORNEYS

PASSING THE BAR EXAMINATION

Plaintiff asserts that the bar examina-

tion discriminates against black applicants.

He alleges that while fifty (50%) per cent

of the white applicants passed the June,

1971, bar examination, only ten per cent

(10%) of the black applicants were success-

ful on the examination. Further, plaintiff

alleges that of the approximately 4,500

attorneys in Georgia, only 1 1/2% there-

of are black. It is plaintiff's argument

that these statistics show racial discrimina-

tion in violation of 42 U.S.C. §1981l.

- 49a -

As is made clear in Schware, the State

of Georgia is free to establish high stan-

dards for admission to the bar. The fact

that the high admission standards may fall

disproportionately upon blacks does not

constitute violation of §1981 or of the

Fourteenth Amendment, unless such standards

are arbitrary or are applied more strictly

to blacks than other applicants. The

statistics, while they may of course be

introduced into evidence on the issue of

racially discriminatory grading, do not of

themselves establish a prima facie case of

violation cf §1981 or the Fourteenth

Amendment.

III - THE LACK OF BLACK BAR EXAMINERS

Plaintiff alleges that there has

never been a black member of the Board

of Bar Examiners and that such fact consti-

tutes racial discrimination per se.

The analysis of this allegation is

analogous to the court's treatment of the

issue of statistics. The fact, if proved,

that there are no black bar examiners does

not, of itself, establish that there has

been arbitrary and racially discriminatory

treatment of applicants to the bar. An

all-white Board of Bar Examiners does not

constitute a per se violation of §1981

or of the Fourteenth Amendment. It is

true, however, that proof of such allega-

tion might have some relevance to the

question whether the bar examiners have

been arbitrary and racially discriminatory

in the grading of examinations.

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IV - DENIAL OF RIGHT TO PRACTICE

IN FEDERAL COURT

Plaintiff alleges that the right to

practice in federal court is dependent

upon a license to practice in state

court, and that therefore the aétions

of the defendants arbitrarily deprive him

of a federal privilege, in violation of

the Fourteenth Amendment.

Although state bar admissions are

entitled to respect from the federal

courts, In Re Isserman, 345 U.S. 286

(1953), they are not conclusively binding

on the federal courts. In Re Ruffalo, 390

U.S. 544 (1968). The federal judiciary

is just as autonomous as the state courts

where admission to its own bar is concerned.

See Theard v. United States, 354 U.S. 278

(1957).

Defendants are thus not responsible

for plaintiffs' not being admitted to

practice in federal district . The Local

Rules of the United States District Court

for the Northern District of Georgia, Rule

1, stating that any person who is a member

of the bar of the State of Georgia shall

be eligible for admission to practice in

the federal court, has been adopted and

enforced by this court, not by defendants.

Summary judgment must therefore be

granted to defendants on this issue.

V - KNOWLEDGE BY EXAMINERS OF NAMES

OF EXAMINEES

Plaintiff alleges that the bar examiners

- 5la -

have access to the names and numbers of all

applicants during the grading of the examina-

tions. Defendants have submitted evidence

which tends to refute this allegation.

An affidavit from Ben Estes, Adminis-

trative Assistant to State Board of Bar

Examiners, set forth in detail the precau-

tions which are followed to insure the

secrecy of the identity of the examinees.

The examinations are marked only with the

examination number, not the name, of the

applicant. The examination numbers are

drawn by the applicants on the first day

of the examination. Each examinee then

fills out a form with his name, address and

circuit and places the form in the envelope

which has his number on it. These envelopes

are boxed and taken to the State Treasurer's

office where they are locked in a vault until

the grading is complete. This evidence,

if not contradicted, would indicate that

bar examiners are not aware of the names

of the applicatns whose papers they are

grading. Plaintiff has filed no brief

and no evidence to contradict this affi-

davit.

Rule 56, Fed. R. Civ. P., provides

that if the moving party supports its motion

for summary judgment by evidence, the

party opposing the motion must then set

forth specific facts showing that there

is a genuine issue of fact for trial. As

the evidence presented by the defendants

on the question of the examiner's knowledge

of the examinees’ names and numbers has

not been contradicted by the plaintiff,

summary judgment for the defendants is

proper on this issue and is hereby granted.

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VI - ALLEGATION THAT MANY BLACKS DO

NOT TAKE EXAMINATION

Plaintiff alleges that many blacks

do not take the bar examination because of

the highly discriminatory action of the

defendants. Plaintiff, as he has taken the

bar examination, does not having standing

to raise this issue.

VII - LACK OF OFFICIAL NOTIFICATION

AND HEARING

Plaintiff alleges that he was not

given official notification of his failure

to pass the January, 1970, bar examination

and learned of such failure only through

the newspapers. Plaintiff has no standing

to raise this issue, as further statements

in the complaint establish that he was

officially informed of his failure of the

examination by defendant Miller.

Plaintiff asserts that he requested

his grade and a hearing from defendant

Miller and was refused. In McMichen v.

State Board ort Bar Examiners, 305 F. Supp.

-D. Ga. , a three-judge panel

of this court held that no substantial

federal question was presented by the

allegation of denial of an appeal from an

adverse decision by the Board of Bar

Examiners. That case is dispositive of

plaintiff's claim of right to a hearing.

As the court held in McMichen, plaintiff

had the right under Georgia law to proceed

by mandamus to challenge the legality of

the defendants’ refusal to certify him for

admission to the bar. Plaintiff thus

- 53a -

could have had a hearing in court on his

failure of the examination. As to defen-

dants' refusal to inform plaintiff of the

exact numerical grade which he received

on the examination, the court finds no

denial of the Fourteenth Amendment in that

regard.

Accordingly, the motion for summary

judgment is DFNIED on the issue of the

allegedly arbitrary and racially discrimina-

tory grading of the examinations. In all

other respects and as to all other issues

presented by the complaint, the motion

for summary judgment is GRANTED.

IT IS SO ORDERED,

This, the 11 day of August, 1972.

s/Richard C. Freeman

R °

UNITED STATES DISTRICT

JUDGE