# Petition — Tyler v. Vickery > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1602%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 426 U.S. 940 ## Text | 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 wit [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1602%3A1. Public record. Not legal advice.