Petition — Richardson v. McFadden

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Supreme Court, U.S -

FILED |

IN THE JAN 10 1978

SUPREME COURT OF THE UNITED|/STATES :

OCTOBER TERM, 1977 [_MICHAEL RODAK, JR. CLERK

no. @7-988

DAVID RICHARDSON, PATRICIA KING,

PATRICK KELLY and HIRAM SPAIN,

| on behalf of themselves and all

others similarly situated,

| Petitioners,

vs.

J. MEANS McFADDEN, MORRIS D. ROSEN,

C.W.F. SPENCER, ROBERT D. SCHUMPERT,

DAVID L. FREEMAN and ALBERT L. JAMES,

| JR., individually and as members of

the State Board of Law Examiners;

and MISS FRANCIS SMITH, Clerk of the

Supreme Court of South Carolina,

Respondents

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT

E. Richard Larson Laughlin McDonald

New York, NY 10016 Neil Bradley

Christopher Coates

52 Fairlie St., NW #355

Atlanta, GA 30303

Ray P. McClain

Charleston, SC 29402

F. Henderson Moore

Charleston, SC 29403

American Civil

Liberties Union

Foundation, Inc.

Counsel for Petitioners

TABLE OF CONTENTS

Table of Authorities

Opinions Below

Jurisdiction

Questions Presented

Constitutional Provisions

Involved

Statement of the Case

Reasons for Granting the Writ

Conclusion

Appendix

En Banc Opinion of the Court

of Appeals

Panel Opinion of the Court of

Appeals

Opinion of the District Court

l6a

42a

TABLE OF AUTHORITIES

Cases

Arlington Heights v. Metropoli-

tan Housing Corp., _ U.S. .

97 S.Ct. 555 (1977) ae

Avery v. Georgia, 345 U.S. 559,

(1953)

Bishop v. Wood, 426 U.S. 341

(1976)

Castaneda v. Partida,

97 S.Ct. 1272 (1977)

Estep v. United States. 327 U.S.

114 (1946)

Frontier v. Richardson, 41l U.S.

677 (1973)

Johnson v. Robison,

361 (1974)

Keyes v. School District No. l,

413 U.S. 189 (1973)

Kirksey v. Board of Commissioners

of Hinds County, Miss., 554 F.2d

139 (5th Cir. 1977)

Loving v. Virginia, 388 U.S. 1

(1967)

O'Brien v. Skinner, 414 U.S. 524

(1974)

Royster Guano Co. v.

253 U.S. 412 (1920)

Schware v. Board of Examiners,

353 U.S. 232 (1957)

Skinner v. Oklahoma, 316 U.S. 535

(1942)

Thompson v. City of Louisville,

362 U.S. 199 (1960)

Washington v. Davis, 426 U.S. 229

(1976)

Wieman v. Undegraff, 344 U.S. 183

(1952)

Willner v. Committee on Character

and Fitness, 373 U.S. 96 (1963)

U.S. ’

415 U.S.

Virginia,

Cases Page

Page

Wrighten v. Board of Trustees,

72 F.Supp. 948 (E.D.S.C. 1947) 6

Yick Wo v. Hopkins, 118 U.S.

ia 356 (1886) 15, 18

21 Constitutional Provisions

16 United States Constitution

Amendment Fourteen, §1l passim

19 Statutes

19 South Carolina, Stat. at Large

1925 (34) 69 6

as Rail United States Code

28 U.S.C. §1254(1) 2

18, 20

19 .

14, 15

iii

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

No.

DAVID RICHARDSON, et al.,

Petitioners,

vs.

J. MEANS McFADDEN, etc., et al.,

Respondents.

PETITION FOR WRIT OF CERTIOIRARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT

The petitioners, David Richardson,

Patricia King, Patrick Kelly and Hiram

Spain, pray that a writ of certiorari

issue to review the judgment of the

United States Court of Appeals for the

Fourth Circuit which was entered on

October 12, 1977.

OPINIONS BELOW

The en banc opinion of the United

States Court of Appeals for the Fourth

Circuit is unreported and is appended

hereto, infra at la. The panel opinion

is reported at 540 F.2d 744 (4th Cir.

1976), and is appended hereto, infra at

l6a. The opinion of the district court

is unreported and is appended hereto,

infra at 42a.

JURISDICTION

The judgment of the United States

Court of Appeals for the Fourth Circuit

was entered on October 12, 1977.

This Court has jurisdiction to re-

view the judgment below by writ of certio-

rari pursuant to 28 U.S.C. §1254(1).

QUESTIONS PRESENTED

1. Whether use of a bar exam by a

state with a history of purposeful dis-

crimination in bar admissions violates the

Fourteenth Amendment where the exam was

adopted for general use only after estab-

lishment of a segregated law school, blacks

prior to that time being denied admission

to state law school, and where the exam

has disproportionate racial impact?

2. Whether bar admission procedures

violate due process and equal

protection where black applicants who re-

ceived scores higher than those of passing

applicants were failed?

CONSTITUTIONAL PROVISION INVOLVED

UNITED STATES CONSTITUTION, Amendment

Fourteen:

Section 1. All persons born or natural-

ized in the United States, and subject to the

jurisdiction thereof, are citizens of the

United States and of the State wherein 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 deprive any person of

life, liberty, or property, without due

process of law; nor deny to any person with-

in its jurisdiction the equal protection of

the laws.

STATEMENT OF TEE CASE

Petitioners are four black law school

graduates who have satisfied all require-

ments for admission to the South Carolina

bar except being assigned a passing grade

on the bar examination. They brought this

action seeking declaratory relief, inter

alia, that: the South Carolina bar examina-

tion discriminates against blacks and can-

not constitutionally be used until it is

demonstrated to be valid for predicting

competent performance in the practice of

Zz . . .

law”; admission procedures were arbitrarv

1. Petitioner David Richardson graduated

from Washington College of Law of American Univer-

sity in 1970. Petitioners Patrick Kelly and Hiram

Spain graduated fram Howard University Law School

in 1966 and 1971, respectively, and Petitioner

Patricia King graduated from North Carolina Central

University Law School in 1969 and was admitted to

the North Carolina Bar in 1971. Petitioners brought

suit as a class action but class certification was

denied.

2. The South Carolina bar exam, thoughout

the period under investigation, has included seven-

teen subjects. The exam takes three days, with a

total of six hours of examination each day. Fram

1969 to 1971, six bar examiners each examined on

two or three of these subjects. In 1972, the state

began using the multiple-choice Multi-State Bar

Examination (MBE) for five subjects; this examina-

tion prepared bv the National Conference of Bar

(Footnote continued to next page.)

and capricious such that two of the peti-

tioners achieved passing scores on the

examination yet were not certified as

passing; and, they had been unconstitu-

tionally denied admission to the South

Carolina bar.+

(Footnote continued fram preceding page.)

Examiners, takes one day. The remaining twelve sub-

jects are examined by six examiners. MBE subjects

are Contracts, Torts, Criminal Law, Evidence, and

Real Property. The subjects always examined by

essay are Business Associations, Uniform Commer-

cial Code, S.C. Code Pleading, Federal Practice,

Wills and Decedents' Estates, Constitutional Law,

Conflicts of Laws, Equity, Insurance, Personal

Property, Legal Ethics and Trusts. The tests

prepared by the bar examiners have always been

— completely, or almost completely, in essay

orm.

1. Petitioners also charged that the prac-

tice of the bar examiners not to allow any review

of scores and papers, nor to allow any challenge

whatever to the grades assigned, denied due process

of law. The district court abstained, advising

petitioners to present the issue in the first in-

stance to the Supreme Court of South Carolina.

Petitioners did as directed but the state court

refused to consider the matter because of the

pendency of these proceedings. The respondents

cross-appealed fram the district court's order

insofar as it did not dismiss outright the due

process claim. Abstention by the district court

was affirmed on appeal. 39a-40a.

Blacks have traditionally been dis-

criminated against in the South Carolina

bar and the activities of the organized

bar. For example, admission by diploma

privilege existed in the state at least

as early as 1886, at a time when the sole

state supported law school at the Univer-

sity of South Carolina was segregated by

law. No black could attend any law school

in South Carolina until 1947 when a court

action prompted the state to establish a

"separate but equal" law school for blacks

at South Carolina State College. See

Wrighten v. Board of Trustees, 72 F.Supp.

948 (E.D.S.C. 1947). That same year, the

diploma privilege was abolished, effective

after June, 1950, the effective. date ap-

parently being postponed in order to provide

to all persons who had already been admitted

to law school the benefits of the diploma

privilege. The result was that no sooner

1. In 1925, the statute was amended to

extend the diploma privilege to any accredited law

school in South Carolina, Stat. at Large 1925 (34)

69, for the benefit of Furman University, an all

white private institution.

had black citizens become potentially

eligible for admission by this method than

the method of admission was abolished.

The same pattern of racial motiva-

tion appears regarding reading law under

the supervision of an attorney. The pro-

visions for reading law as a means of

qualifying for the bar antedated the

establishment of law schools. The pro-

visions continued in force and effect until

shortly after a black applicant qualified

for the examination and was subsequently

admitted in 1957. Qualification for the

examination by reading law was abolished

as of November 30, 1957.

A repetition of this pattern occurred

more recently with regard to the admission

of attorneys to the South Carolina bar by

reciprocity. In 1971, a black member of

the bar in Oklahoma, Joe Lewis Black,

applied for admission by reciprocity and

was denied admission on the reported ground

that he did not meet the requirements of

the rule as to active practice. In January

of 1972, the rule authorizing admission by

reciprocity was repealed.

The organized bar in South Carolina

systematically excluded black attorneys

from equal participation until 1970 when

black attorneys were first admitted to

membership in the South Carolina Bar Asso-

ciation.: The Spartanburg County Bar

Association in the 1950's had separate

mailing lists for social functions, such

as dinners for judges visiting from other

parts of the state, so that the lone black

member of the bar in that county was not

to be invited to such functions. Members

of-the Richland County Bar Association re-

Sisted the admission of black attorneys

to their association in 1965, and when

black attorneys were admitted, a majority

of attorneys in that county tried to form

a separate lawyers' "club," exclusively

white, to perform functions such as con-

ducting the dinners honoring visiting

judges. The segregated "club" was abo-

lished only when a member of the associa-

tion advised the leadership that enter-

tainment of judicial officers by such

private organizations of attorneys was a

violation of the canons of professional

ethics, and promised to bring a formal

ethics complaint if the practice were not

stopped. +

The South Carolina bar exam excludes

a far greater percentage of black than

white applicants from admission to practice.

Considering all applicants who took the

exam from 1968 to 1972, the following

table shows the percentage who had passed

or failed by the end of 1972:

Pass Fail % Pass

White ~ 709 34 95.4

Black 15 12 55.6

The bar examiners knew of the unequal re-

sults of the test, but took no action to

investigate these results, nor did they

perform any study to demonstrate either

1. All, or virtually all, members of the

class petitioners sought to represent were required

by South Carolina law to attend "separate but un-

equal" racially segregated schools throughout

their elementary and secondary education. The

youngest of the petitioners, Richardson and King,

graduated from high school in 1961, long before

the South Carolina schools had, generally, even

adopted "freedam of choice” plans. Petitioner

Spain, in fact, before attending law school,

taught in a segregated school fram 1961 to 1968

in Spartanburg, South Carolina. Petitioner Richard-

son taught in a solely black elementary school in

Charleston, South Carolina, in 1965-66.

"criterion-related validity" or “content

validity" to demonstrate that the exam was

related to the performance of the job of

an attorney engaged in the practice of law.

The bar examiners all testified that

their procedures and standards for evaluating

papers were the same from year to year and

that "70" was the passing score. Two peti-

tioners, Spain and Kelly, however, achieved

scores of "71" and "70", respectively, the

first time they stood the examinations, but

were failed. The bar examiners passed sev-

eral white applicants with similar patterns

of scores, including one whose average was

rounded to only "6g.

District Court

The case was tried on July 16-26, 1973,

and the district court entered its order

denying relief on October 18, 1973. The

court found as a fact that there was no

intentional racial discrimination in the

assigning of test scores by the individual

defendant bar examiners. The dispropor-

tionate racial impact of the exam raised a

"presumption of discrimination" but was

1. The examiners also commited a number of

purely camputational errors. In at least one in-

stance, the error may very well have changed the

result fram passina to failing, although the exami-

ners denied that the error made any difference.

explained, so the court felt, by the

fact that certain black applicants had

attended Howard University.+ 49a. The

court concluded that the use of the bar

exam was constitutional because it had a

"rational connection with any applicant's

fitness or capacity to competently practice

law." 48a.

The Panel Opinion

The panel opinion of the court of

appeals affirmed the district court except

as to Spain and Kelly, whom it found should

have been admitted to the bar. The court

held that in evaluating Spain and Kelly's

papers “the Bar Examiners acted arbitrarily

and capriciously in violation of both the

Due Process and Equal Protection Clauses

of the Fourteenth Amendment." 38a. Arbi-

trariness flowed from inconsistent treatment

1. The court found that "Howard University

Law School graduates on a nationwide basis do not

fare nearly as well on state bar examinations as

do i. “~~ of re grad ———— law schools."

50a. - court appeals, however, did not t

this finding. oe

given "borderline" papers, the use of vague

and subjective written comments accompanying

exams in assigning a final grade and the

fact that "the correspondence of a score of

70 with even [the examiners] own judgment

of minimal competency was little more than

fortuitious." 38a.

As to petitioners claim that the exam

was invalid, the court held that while

"if ... Title VII standards were applicable,

it would be necessary to reverse and de-

clare the South Carolina Bar Examination

constitutionally invalid,” the evidence

did not prove deliberate, de jure discrimi-

nation,“ and the exam, for Fourteenth Amend-

ment purposes, bore a "fair and substantial

relationship to the purpose of the classi-

fication." 2la, 26a.

1. The following table of examination scores

reflects the inconsistent treatment of "borderline"

grades by the examiners:

No. Examiners Scores Avg. Pass/Fail

160 6/71 66 67 68 71 78 81 71.8 Fail

128 6/70 66 67 67 72 75 79 71.0 Pass

Spain 6/71 66 66 68 71 72 80 70.5 Fail

121 6/69 66 69 F(69) 71 73 73.8 70.3 Pass

Kelly 2/71 634266 69+ 70 71 78 69.6 Fail

17 2/70 60 67 71 #72 #73 #74 ~ 69.5 Fail

10 2/71 63 66 70 71 73 73 # 4269.3 Pass

2. "“{PJerhaps of controlling importance" was

the fact that blacks were never by statute excluded

from the practice of law in South Carolina. 24a.

The er banc opinion

The court of appeals en banc affirmed

the panel opinion but reversed as to the

relief given Spain and Kelly. The court

held that petitioners’ proof of inconsistent

treatment of applicants failed to establish

"the constitutional discrimination requisite

to the granting of individual relief." 4a.

a 1. Three judges, including a member of the

original panel, concurred but on the grounds that

the district court was without jurisdiction to

hear the individual claims of Spain and Kelly, the

petitioners remedy lying “exclusively with the

Supreme Court of the United States" sitting in

review of the state court. 14 a.

REASONS FOR GRANTING THE WRIT

to be "perhaps of controlling importance"

Be THE DECISION BELOW CONFLICTS , 22

WITH DECISIONS OF THIS COURT with the result that petitioners had failed

AND OTHER COURTS OF APPEAL to prove a deliberate state scheme of de

CONCERNING THE LEGAL STANDARDS ; a l

APPLICABLE TO PROOF AND RE- jure discrimination. 24a

BUTTAL IN RACE DISCRIMINATION While this Court has held that dis-

CASES.

proportionate racial impact standing alone

does not prove a violation of equal pro-

Petitioners produced evidence of the

tection, Washington v. Davis, 426 U.S. 229,

South Carolin bar's past history of racial 96 S.Ct. 2040, 2049 (1976),

it has never

discrimination in admitting blacks to the ;

indicated that an express statutory classi-

practice of law,+ together with the dis- ; , ;

fication is a reouirement for a violation

. of the Fourteenth Amendment. 96 S.Ct. at

exam. They contended that they established 2048:

proportionate racial impact of the bar

"This is not to say that the neces-

a prima facie case of discrimination in vio- ; on

sary discriminatory racial purpose must be

lation of the Fourteenth Amendment unre-

express or appear on the face of the sta-

butted by clear and convincing evidence by tute." Rather, the Court has traditionally

e ’ tL

the bar examiners.“ The court of appeals, ; eis

found discriminatory state action where a

however, found the fact that blacks were

statute, otherwise neutral on its face, is

never prohibited by statute from practicing applied invidiously to discriminate, Yick

Wo v. Hopkins, 118 U.S. 356 (1886); where

l. That history includes discrimination in

. . a 1 ‘ :

admissions to law school, abolition of the diploma a. easels Ce grounds

privilege, reading law and reciprocity at a time

pose blacks became eligible for bar admission by | 1. The court also noted that 3.4% of lawyers

of these methods, and discrimination by state | admitted to practice in South Carolina were black

and local bar associations, supra, at 6-9. | "oj ober

= and the examiners "cite neutral reasons for all

2. The district court did in fact find that three changes in admission practices." 24a-25a. Peti-

petitioners made out a prima facie case of inten- tioners are not required, however, to show that "chal-

tional discrimination relying upon circuit court lenged action rested solely on racially discriminatory

opinions rendered prior to Washington v. Davis, 426 purpose" to prevail. Arlington Heights v. Metropolitan

U.S. 229, 96 S.Ct. 2040 (1976). 49a. Housing Corp., ___ U.S. __, 97 S.Ct. 555, 563 (1977).

other than race, emerges from the effect

of the state action, Arlington Heights v.

Metropolitan Housing Corp., U.S.

97 S.Ct. 555 (1977), where the systematic

impact of state action is itself such an

unequal application of the law as to show

aiscrimination, Castaneda v. Partida,

0.8. , 97 S.Ct. 1272, 1279-80 (1977);

or, where a current racial condition re-

sults from past intentional state action.

Keyes v. School District No. 1, 413 U.S.

189 (1973). By finding the absence of a

statute excluding blacks from the practice

of law to be controlling, the court of

appeals departed from the legal standards

enunciated by this Court as early as 1886

in evaluating claims of racial discrimina-

tion.

Having erroneously concluded that

petitioners failed to make out a prima

facie case of race discrimination, the

court of appeals necessarily erred in its

finding that the bar exam was constitutional

l. Accord, Kirksey v. Board of Commis-

sioners of Hinds County, Miss., 554 F.2d 139, 148

(Sth Cir. 1977) (en banc),

if it bore a "fair and substantial re-

letionship" to the purpose of the classifi-

cation. Racial classifications are, of

course, tested by a more strict standard.

They are constitutional only if justified

by a compelling state interest, Loving v.

Virginia, 388 U.S. 1 (1967), or re-

butted by clear and convincing evidence.

Keyes v. School District No. l, Supra, 413

U.S. at 209.

The application by the court below

of improper legal standards in evaluating

petitioners’ claim of racial discrimination

denied them the protection of the Fourteenth

Amendment.

nature and the theory of our institutions

II. THE COURT BELOW MISAPPLIED of government, the principles upon which

BISHOP v. WOOD, 426 U.S. 341 they are supposed to rest, and review

1976), AND IGNORED SETTLED :

PRECEDENT OF THIS COURT IN CON- the history of their development, we are

CLUDING THAT PETITIONERS HAD constrained to conclude that they do not

FAILED TO PROVE A CONSTITUTIONAL

VIOLATION IN BAR ADMISSION mean to leave room for the play and action

PROCEDURES . of purely ... arbitrary power."); O'Brien

v. Skinner, 414 U.S. 524, 530 (1974)

The right to due process in bar ad- (declaring unconstitutional as "wholly

missions is constitutionally guaranteed. | arbitrary" a New York election statute

In Schware v. Board of Examiners, 353 U.S. denying absentee voting to persons con-

232, 238-39 (1957), the Court held that: fined in the county of their residence);

Skinner v. Oklahoma, 316 U.S. 535, 542 (1942)

A State cannot exclude a (state sterilization statute unenforceable which draws

person from the practice of : SSE

law or from any other occupa- conspicuously artificial lines" between per-

tion in a manner or for reasons sons convicted of offenses): Th

that contravene the Due Pro- aoe meee? 3 wna =

cess or Equal Protection Clause City of Louisville, 362 U.S. 199, 206

of the Fourteenth Amendment. (1960) (conviction "without evidence" a

In accord, Wil]ner v. Committee on Charac- violation of due process); Wieman v.

ter and Fitness, 373 U.S. 96, 102 Updegraff, 344 U.S. 183, 191 (1952) ("In-

(1963): "the requirements of procedural discriminate classification of innocent

due process must be met before a State with knowing activity must fall as an

assertion of arbitrary power."); Johnson

v. Robison, 415 U.S. 361, 375 (1974)

(legislative classification "must be

can exclude a person from practicing law."

And few propositions are more fundamental

than that to be consistent with due pro-

cess, a state may not act arbitrarily or reasonable, not arbitrary," quoting from

capriciously. Yick Wo v. Hopkins, 118 U.S. 356, Royster Guano Co. v. Virginia, 253 U.S.

6 S.Ct. 1064, 1071 (1886) (‘When we consider the 412, 415 (1920)); Frontiero v. Richardson,

18 19

411 U.S. 677, 683 (1973) ("patently arbi-

trary" legislative classifications may not

survive constitutionai analysis).

The requirement of rational..decision

making with a basis in fact has been

specifically applied by this Court to bar

admissions procedures. Schware v. Board

of Examiners, supra, 353 U.S. at 239:

"Even in applying permissible standards,

officers of a State cannot exclude an

applicant when there is no basis for their

finding that he fails to meet these

standards." In accord, Estep v. United

States, 327 U.S. 114, 122 (1946) con-

cluding that administrative action with

"no basis in fact" is unconstitutional.

Here, the decision making process was

wholly arbitrary and lacked a basis in

fact. Petitioners Spain and Kelly were

denied admission to the bar while appli-

cants who scored lower than they were

admitted. Arbitrariness was patent, not

simply from the inconsistent treatment

given applicants, but from the use of vaque

and subjective standards in assigning

grades and the “fortuitous” designation

of a passing score.

The court of appeals, however, relying

exclusively upon Bishop v. Wood, 426 U.S.

341 (1976), reasoned that "if the bar

examiners made a mistake in one or more

individual cases" a denial of due process

.Or equal protection would not be made out.

3a-4a. The court then concluded: "we simply

do not think that Spvain and Kelly proved

their case."! 6a. Bishop stands for the

proposition that in the absence of a

liberty or property interest, discharge

from employment, even for an erroneous

reason, does not violate due process. But

Bishop could never be stretched for the

proposition that the Fourteenth Amendment

no longer requires rational decision making

with a basis in fact where protected interests,

such as those here, are involved.

There was no warrant for the extension

of Bishop v. Wood, supra, in this case, nor

the denial of Fourteenth Amendment pro-

tection to petitioners in violation of settled

precedent of this Court.

1. The court also held that petitioners had the

burden of showing "all of the circumstances" surround-

ing the disparate treatment of applicants. 5a. Peti-

tioners established as many of the "circumstances" as

they could, 33a-38a, but in cases such as this where

there is proof of inconsistent treatment, and facts

are known only by respondents, it is the later who

mast fill any “factual vacuum" which may exist. Avery

v. Georgia, 345 U.S. 559, 562 (1953).

CONCLUSION

For these reasons, a writ of certio-

rari should issue to review the judgment

and opinion of the Fourth Circuit.

Respectfully submitted,

Laughlin McDonald

Neil Bradley

Christopher Coates

#355

52 Fairlie Street, NW

Atlanta, GA 30303

Ray P. McClain

Charleston, SC 29402

F. Henderson Moore

Charleston, SC 29403

E. Richard Larson

New York, NY 10016

Counsel for Petitioners

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 73-2512

David Richardson, et al.,

Appellants,

Vv.

J. Means McFadden, et al.,

etc.,

Appellees.

No. 73-2513

David Richardson, et al.,

Appellees,

Vv.

J. Means McFadden, et al.,

etc.,

Appellants.

Appeals from the United States District

Court for the District of South Carolina,

at Charleston. Sol Blatt, Jr., District

Judge.

Reargued March 15, 1977 Decided October

12, 1977

Before HAYNSWORTH, Chief Judge, BOREMAN,

Senior Circuit Judge, WINTER, CRAVEN,* BUTZ-

NER, RUSSELL, WIDENER, and HALL, Circuit

Judges, sitting in banc on resubmission.

*Judge Craven died before this opinion was

prepared.

PER CURIAM:

We granted rehearing in banc to re-

consider the issues decided by a panel of

the court in Richardson v. McFadden, 540

F.2d 744 (4 Cir. 1976). There, in an action

for declaratory and injunctive relief brought

by four black law school graduates who had

satisfied all requirements for admission to

the South Carolina Bar, except that they

received failing scores on the bar examina-

tion, the panel decided that the district

court properly denied relief except for the

individual claims of Spain and Kelly. With

respect to them, the panel concluded that

the Law Examiners had acted arbitrarily and

capriciously, and it directed the district

court to order them to be certified as

having passed the South Carolina Bar.

Except with respect to the individual

claims of Spain and Kelly, we see no merit

in plaintiffs' various contentions for the

reasons assigned by the panel.

II.

With regard to the individual claims of

Spain and Kelly, we conclude, in disagree-

ment with the panel, that the district court

correctly denied relief.

eee

At the outset, we recognize that a

jurisdictional question is raised by the

assertion of individual claims for relief

by Spain and Kelly, i.e., whether, in judging

the intellectual fitness of applicants to

practice law, the Law Examiners performed

a judicial function on behalf of the South

Carolina Supreme Court, so that under such

precedents as Doe v. Pringle, 550 F.2d 596

(10 Cir. 1976), cert. denied, U.S.

(1977), and McKay v. Nesbett, 412 F.2d 846

(9 Cir. 1969), cert. denied, 396 U.S. 960

(1969), we should conclude that the district

court lacked subject matter jurisdiction to

review the denial of admission to the bar.

We are divided on how this issue should be

decided, but we find it unnecessary to debate

or resolve our differences because a clear

majority of us agrees that, even if the dis-

trict court had subject matter jurisdiction,

the proof will not suport the conclusion

that Spain and Kelly are entitled to indivi-

dual relief.

Their claim to relief is founded upon

due process and equal protection claims.

Before turning to the factual basis of their

claims, we stress that our function is not

just to determine if the bar examiners made

a mistake in one or more individual cases;

it is to determine if there has been a

denial of due process or of equal protection.

Not every erroneous determination mounts up

to a denial of due process or equal protec-

tion. Bishop v. Wood, 426 U.S. 341, 349-50

(1976).

Factually, Kelly and Spain showed that

other applicants at other times appeared to

have received more favorable treatment in

grading than that which was afforded them.

See table at 540 F.2d at 750. Specifically,

Spain, who was a June, 1971, applicants”

having an average score of 70.5 and having

been failed by three examiners, points to

applicant 129, a June, 1970, avplicant

having an average score of 71.8 and also

having been failed by three examiners, who

was passed. Kelly, who was a February,

1971, applicant having an average score of

69.6 and having been failed by three exami-

ners, points to applicant 10, also a Febru-

ary, 1971, applicant who was passed with an

average score of 69.3 but who was failed by

only two examiners.

We do not think this proof establishes

that constitutional discrimination requisite

to the granting of individual relief. In

Neen eee

the case of Spain, the comparison urged on

us is of different years. While the mere

fact of different years does not make the

comparison inapposite, all of the circum-

stances which make the two instances com-

parable were not shown. Moreover, the

record does not show that in grading Spain

the examiners had before them the record

of what had been done the year before. In

the case of Kelly, the fact that he was

failed by three examiners serves to dis-

tinguish his case from the asserted analo-

gue where the applicant was failed by only

two examiners. The further fact that a

February, 1970, applicant (No. 17) was failed

with an average of 69.5 after having been

failed by only two examiners does not destroy

the distinction. Although it occurred in

a different examination from the one about

which Kelly complains, it may show discrimi-

nation with reference to 17; but Kelly can

hardly advance his cause as a result of a

possible due process violation to another.

Significant also, with respect to Spain and

Kelly, are the facts that of the aggregate

828 examinations given during the eight

times that the bar examination was adminis-

tered over a four-year period, only these

two examples of alleged discrimination were

proved, and that Spain and Kelly continued

to fail on subsequent reexaminations. Suc-

ciently stated, we simply do not think that

Spain and Kelly proved their case.

Since we conclude that there was no

error in the judgment of the district court

on any of the grounds asserted, its judgment

AFFIRMED.

HALL, Circuit Judge, concurring in the

result:

While I concur in the result reached

in this case, I do so because I believe

that the district court was without subject

matter jurisdiction to review the questions

relating to the individual admissions to

the bar of Spain and Kelly. Settled prece-

dents, I believe, support my views regarding

the district court's lack of subject matter

jurisdiction.

In South Carolina, the exclusive juris-

diction to pass upon the qualifications of

applicants is vested in the South Carolina

Supreme Court by both the state constitution

and by statute. S.C.CONST. art. V, § 4;

S.C.CODE § 56-96. By administering the

bar examination and judging the intellectual

fitness of applicants to practice law, the

Law Examiners perform a judicial function

on behalf of the South Carolina Supreme

Court. The South Carolina Supreme Court

thus exercises judicial power within the

scope of its subject matt¢r and personal

jurisdiction when it actgy upon the admission

of applicants to the state bar. And while

that court is nct required to admit an ap-

plicant to the South Carolina Bar simply

I. See Deposition of J. Means McFadden, App.

at 428-29:

Well we [Law Examiners] are subject to

the control of the Supreme Court, and

we take no action of an affirmative

nature without first conferring with

the Supreme Court and getting their

approval of it. * * * [WJe are subject

to their supervisicn in every thing we

do. But to the extent that we have to

formulate questions, give the examina-

tion, grade the papers, yes, we have to

do that on an indivicual basis. There

is no other way we c “ do it. [However,

before any changes were made in the

scheme of the examination!, we got the

approval of the Supreme Court before

we ever put in changes.

because the Bar Examiners have certified

that he has passed the bar examination, “

nevertheless the failure to obtain such a

certification does preciude admittance to

the bar.

Many states have statutorily estab-

lished a formal procedure for petitioning

the states’ highest court for review of an

adverse determination by a board of bar

examiners who failed to certify that an ap-

plicant has passed a bar examination. A

statutory provision such as this did not

exist in South Carolina during the time

relevant to this case; however, petitions

by aggrieved bar applicants had been made

to and considered by the South Carolina

Supreme Court. > Final action on a applica-

tion to the state bar is by the South Carolina

2. However, the record does not reflect any

instance when the South Carolina Supreme Court re-

fused to follow the recommendations of its Law Ex-

aminers in admitting applicants to the bar.

3. After institution of this suit, the South

Carolina Supreme Court voluntarily did establish by

rule procedures for the review of failing papers.

See Rule 11, RULES FOR THE EXAMINATION AND ADMISSION

CF PERSONS TO PRACTICE LAW IN SOUTH CAROLINA (effective

date - February 10, 1975).

Supreme Court, whether the action taken is

expressed or implied; 4 and review from an

adverse decision is secured by petitioning

the Supreme Court of the United States for

certiorari. Schware v. Board of Bar Ex-

aminers of New Mexico, 353 U.S. 232 (1957);

Konigsberg v. State Bar of California, 353

U.S. 252 (1957); Theard v. United States,

354 U.S. 278 (1957). Three circuits are in

accord. See Doe v. Pringle, 550 F.2d 596

(10th Cir. 1976), cert. denied, U.S.

___» 97 S.Ct. 2179 (1977); Feldman v. State

Board of Law Examiners, 438 F.2d 699 (8th

Cir. 1971); MacKay v. Nesbett, 412 F.2d 846

(9th Cir. 1969), cert. denied, 396 U.S. 960

(1969); Gately v. Sutton, 310 F.2d 107 (10th

Cir. 1962).

4. See American Civil Liberties Union v. Bozardt,

539 F.2d 340 (4th Cir. 1976), cert. denied, 97 S.Ct.

639 (1976), where a final (appealable) state adjudica-

tion of a disciplinary proceeding was said not to occur

until it could be demonstrated that the South Carolina

Supreme Court either expressly decided the question or

acquiesced in the decision of the Board of Commissioners

on Grievances and Discipline of the South Carolina Bar.

The fictitious "Jane Koe” in Bozardt, in reality

Ms. Edna Smith, subsequently did seek a direct review

of the private reprimand administered by the Board of

Cammissioners on Grievances and Discipline. The Supreme

Court of South Carolina reviewed the case but ordered

a public reprimand. Matter of Smith, 233 S.E.2d 301,

306, (S.C. 1977).

(footnote continued to next page)

The United States Court of Appeals for

the Tenth Circuit has recently considered

this particular jurisdictional issue in Doe

v. Pringle, supra. There, a frustrated bar

applicant had brought a civil rights action

challenging the state supreme court's denial

of his application for admission to the bar,

despite a favorable recommendation of the bar

committee. Upholding the district court's

dismissal of the action, the Tenth Circuit

ruled that a federal court was without sub-

ject matter jurisdiction to review the denial

of admission to the bar even though plain-

' tiffs' challenge was anchored to an alleged

deprivation of federally protected due pro-

cess and equal protection rights.

Drawing from the district court's ruling,

the Doe court noted that there is a subtle

but fundamental distinction between two types

of claims which a disappointed bar applicant

might bring to federal court:

The first is a constitutional chal-

lenge to the state's general rules

and regulations governing admission;

(footnote continued from preceding page)

An appeal to the Supreme Court of the United

States was then filed. In Re Smith, No. 77-56,

46 U.S.L.W. 3041. It is currently pending.

10a

" :

the second is a claim based on

constitutional or other grounds,

that the state has unlawfully

denied a particular applicant

admission.

Doe, 550 F.2d at 597.

Thus,

[W]hile federal courts do exercise

jurisdiction over many constitu-

tional claims which attack the

State's power to license attorneys

involving challenges to either the

rule-making authority or the admin-

istration of the rules [citations

omitted], such is not true where

review of a state court's adjudica-

tion of a particular application

is sought. * * * [T]he latter claim

may be heard, if at all, exclusively

by the Supreme Court of the United

States. .. . [relying on the 'Thread

Doctrine’ announced in Theard v.

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

Doe, 550 F.2d at 597.

The Eighth Circuit, in Feldman v. State

Board of Law Examiners, 438 F.2d 699 (8th

Cir. 1971) dealt with a plaintiff who had

twice failed the Arkansas bar exam, who

sued the Board, and others, seeking injunc-

tive relief and based jurisdiction upon 28

U.S.C. §§1343(3) and 133l(a). He sought to

State a claim under 42 U.S.C. § 1983. The

lla

district court initially expressed doubt

as to its subject matter jurisdiction but,

dismissed on nonjurisdictional grounds.

The Court of Appeals noted that the suit

properly could have been dismissed on

jurisdictional grounds, 438 F.2d at 701,

and then noted that:

. - - Plaintiff's remedy if any

lies in presenting his grievance

to the Arkansas Supreme Court. If

the ruling there is adverse to him,

he may apply for certiorari to the

United States Supreme Court in the

manner as was done in Schware,

Konigsberg and Theard. As the

trial court properly stated, it is

not an appellate court and cannot

in such a case as this review State

court actions."

Feldman. 438 F.2d at 704.

Finally, in MacKay v. Nesbett, supra,

the Ninth Circuit was faced with a challenge

to the action of a majority of the Justices

of the Alaska Supreme Court who had entered

disciplinary orders suspending MacKay from

the practice of law for a period of one year.

Relying upon Theard and Gately, supra, and

other precedent in support of the Theard

doctrine, the court said:

{O]Jrders of a state court relating

to the admission, discipline, and

disbarment of members of its bar

l2a

may be reviewed only by the

‘Supreme Court of the United

States on certiorari to the

state court and not by means

of an original action in the

lower federal: court. The rule

serves substantial policy in-

terests arising from the his-

toric relationship between

state judicial systems and the

members of their respective

bars, and between the state and

federal judicial systems.

MacKay, 412 F.2d et 846. Emphasis added.

While we are aware that there is some

authority to the contrary in the Seventh

and perhaps the Fifth Circuits,> and while

we are fully appreciative of the desirable

goal of avoiding, if possible, the creation

of a conflict among our sister circuits,

I nevertheless believe we should follow the

teachings of Doe, Feldman and MacKay, and

accordingly, I would hold that the district

court should have dismissed the claims of

Spain and Kelly regarding their allegations

of having been wrongfully deprived of

passing grades on the South Carolina Bar

5. See Whitfield v. Illinois Board of Law

Examiners, 504 F.2d 474, 477 (7th Cir. 1974):

Plaintiff, of course, did allege that de-

fendants acted arbitrarily in grading his

examination. There may very well be sit-

uations in which a capricious denial

(footnote continued to next page)

13a

Examination. By failing to admit Spain

and Kelly to the South Carolina Bar, the

South Carolina Supreme Court had acquiesced

in the Board of Law Examiners’ recommenda-

tion to not license them. Review of this

denial lies exclusively with the Supreme

Court of the United States.

Judge Widener authorizes me to state

that he joins in this opinion.

BOREMAN, Senior Circuit Judge, concurring

specially in the result:

As a Senior Circuit Judge I was a

member of the panel of three which considered

and decided the appeal. Having served on

that panel I was qualified to participate in

the rehearing in banc which was ordered by

the court.

Upon the rehearing in banc I have been

persuaded that the jurisdictional question

raised was not accorded the serious considera-

tion by the panel to which it was entitled.

(footnote continued fram preceding page)

by state officials may give rise to a

federal remedy. (dictum).

See also Tyler v. Vickery, 517 F.2d 1089 (5th Cir.

1975), cert. denied, 426 U.S. 940 (1976).

l4a

From the arguments presented, in briefs

and orally, and upon careful review of the

opinions of other highly respected circuit

courts of appeals I am convinced that the

federal district court should have dismissed

this action for lack of subject matter

jurisdiction.

Therefore, I join Judge Hall in his

opinion in which he concurs in the result

and for the reasons as set forth by him

therein.

15a

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 73-2512

David Richardson, et al.,

Appellants,

versus

J. Means McFadden, et al.,

etc.,

Appellees.

No. 73-2513

David Richardson, et al.,

Appellees,

versus

J. Means McFadden, et al.,

etc.,

Appellants.

Appeals from the United States District

Court for the District of South Carolina,

at Charleston. Sol Blatt, Jr., District

Judge.

Argued April 8, 1976 Decided Aug. 30, 1976

Before BOREMAN, Senior Circuit Judge, CRAVEN,

Circuit Judge, and HADEN, District Judge*

*Sitting by designation.

16a

CRAVEN, Circuit Judge:

This action for declaratory and in-

junctive relief was brought by four black

law school graduates who had satisfied

all requirements for admission to the South

Carolina Bar except that they received

failing scores on the bar examination.

They challenge the constitutionality of

the South Carolina Bar Exam as applied

generally to black applicants. Appellants

Spain and Kelly also attack its validity

as applied to them personally.

In the district court appellants al-

leged and undertook to prove: (1) direct

and purposeful discrimination against blacks

by the State Board of Law Examiners in

assigning grades to their papers; (2) fail-

ure of the State to demonstrate that the

bar examination is job related as opposed

to simply a measurement of general educa-

tional preparation; (3) denial of due pro-

cess of law in the failure of the Bar

Examiners to provide an established pro-

cedure whereby review of, and challenge to,

1. Davie Richardson was graduated from Washing-

ton College of Law of American University in 1970.

Patrick Kelly and Hiram Spain received law degrees

from Howard University in 1966 and 1971, respectively.

Patricia King was graduated from North Carolina

Central University Law School in 1969.

17a

the assignment of a failing score could be

had; and (4) arbitrary and capricious

application of the Examiners' own standards

and criteria to the examinations of Spain

and Kelly, with the result that they were

denied passing scores.

The district court, after trial, re-

jected appellants' arguments, except as to

the claim that due process was denied un-

successful applicants by the failure of

the Bar Examiners to provide a system for

review of failing papers. Judge Blatt

abstained as to that issue until appellants

had presented it to the South Carolina

Supreme Court. On appeal, the plaintiffs

below assign error as to all adverse

rulings except their contention that tests

were graded in an intentionally racially

discriminatory manner. The Bar Examiners

cross-appealed the court's decision to

abstain from decision rather than dismissing

outright the due process challenge to the

absence of a failing test challenge pro-

cedure.”

2. On appeal, the Examiners argue that this

court has no jurisdiction since generally only the

Supreme Court can review decisions of a state court,

and contend that the individual Examiners are immune

fram suits challenging the exercise of their judical

(footnote continued to next page)

18a

We affirm the district court, except

as to the individual claims of Spain and

Kelly.

Appellants’ main challenge to the

South Carolina Bar Examination is that it

is not job related. They argue that the

State Bar's past history of racial dis-

crimination in admitting blacks to the

practice of law and the diporportionate im-

pact of the examination on blacks places

on the Examiners the burden of showing that

the exam is job related, and that in this

context the standards for judging job re-

latedness should be those of Title VII of

the 1964 Civil Rights Act® rather than

traditional Fourteenth Amendments tests.

Appellants contend that to be constitutional

the test in general must be shown to measure

skills relevant to the practice of law, and

the passing score must be selected so as to

(footnote continued fram preceding page)

function. While both propositions are correct in

principle, it is crystal clear that in giving and

grading examinations and certifying passing scores

the Board of Bar Examiners neither renders judicial

decisions nor exercises judicial functions.

3. 42 U.S.C. § 2000e et seq.

19a

draw the line at minimal professional

competency. While the main thrust of

their argument goes to establishing Title

VII standards as applicable to the bar

examination, they contend that, regardless

of the standard employed, the Examiners

have failed to demonstrate the requisite

job relatedness.

The district court, examining the

question solely under the criteria of the

Fourteenth Amendment, held that “the South

Carolina bar examination as presently ad-

ministered has a rational connection with

any applicant's fitness or capacity to

competently practice law in this state.”

App. 44. He made no explicit finding con-

cerning the passing score, probably because

the question was not presented to him in

those terms, but we believe that, in ruling

that the bar examination "as presently

administered" was “job related," he meant

to indicate approval of both the test in

general and the selection of a passing score.

But if Title VII's standards for job

relatedness are applied, the test used must

be "shown, by professionally acceptable

methods, to be ‘predictive of or signifi-

cantly correlated with important elements

20a

eee

of work behavior which comprise or are

relevant to the job or jobs for which the

candidates are being evaluated.'" Alber-

marle Paper Co. v. Moody, 422 U.S. 405,

431 (1975). While the Bar Examiners do

not concede that they would lose under

this requirement, we believe the record

is inadequate to demonstrate either "cri-

terion" ("predictive"), "content", or "con-

struct" validity under professionally

acceptable methods. 4 Thus, if we were to

determine that Title VII standards were

applicable, it would be necessary to re-

verse and declare the South Carolina Bar

Examination constitutionally invalid.

Appellants agree that Title VII does

not apply to the bar exam by its own terms.

But they point out that in Walston v. County

School Board, 492 F.2d 919 (4th Cir. 1974),

we incorporated Title VII standards into

the Fourteenth Amendment equal protection

4. For a discussion of the meaning of these

terms see, e.g., Douglas v. Hampton, 512 F.2d 976,

984 (D.C. Cir. 1975); Bridgeport Guard, Inc. v.

Bridgeport Civil Service Commission, 482 F.2d 1333,

1337-38 (2d Cir. 1973), cert. denied, 421 U.S. 991

(1975).

2la

guarantee in the context of past, state-

sanctioned racial discrimination and the

disparately adverse impact of the test

upon blacks. So we did. See also United

States v. Chesterfield County School

District, 484 F.2d 70 (4th Cir. 1973).

However, in Washington v. Davis, 44

U.S.L.W. 4789 (U.S. June 7, 1976), decided

after oral argument in this case, the

Supreme Court limited our Walston approach,

5. In disapproving numerous cases fram the

lower federal courts that reached the contrary con-

clusion, the Court failed to cite either of our cases

upon which appellants chiefly rely. Id. at 4793 n.

12. This amission might be interpreted to mean that

disproportionate impact upon blacks in the context

of historically state-sanctioned discrimination

establishes "discriminatory purpose." But at least

two other explanations may be given for the Court's

failure to cite either Walston or Chesterfield County.

Inadvertent omission is, of course, possible. Also,

the Court may have considered these "school cases”

-~-part of the "special context of school desegrega-

tion cases" upon which Keyes v. School District No.

1, 413 U.S. 189, 208 (1973), relied. In that case,

the Supreme Court cited with approval our holding

in Chambers v. Hendersonville City Bd. of Educ.,

364 F.2d 189, 192 (4th Cir. 1966) (en banc), that

"in a school system with a history of segregation,

the discharge of a disproportionately large number

of Negro teachers incident to desegregation 'thrust[s]

upon the School Board the burden of justifying its

conduct by clear and convincing evidence.'" Id., at

189. Thus, Walston, which relied heavily upon Chambers,

might be read as simply a part of that "special con-

text," as the Examiners contend, or much more broadly,

as appellants urge.

(footnote continued to next page)

22a

holding that, where discriminatory purpose

by the state is not proven, it is inappro-

priate to "adopt this more rigorous standard

[Title VII] for the purposes of applying the

Fifth and the Fourteenth Amendments ...."

Id. at 4794,

To prove discriminatory purpose, ap-

pellants rely on circumstantial evidence

generated by the chronological juxtaposition

of three changes in admission practices to

the State's Bar. The first was the elimina-

tion of “diploma privilege", which allowed

graduates of the State's accredited law

school to gain automatic admission to the

Bar. This path was eliminated in 1950,

three years (the normal law school term)

after a "separate but equal" law school was

started at South Carolina State College, a

black school. Appellants argue the same

pattern was followed as to the practice of

"reading law." This avenue for admission to

(footnote continued fram preceding page)

However, we need not in this case decide either

the scope of Walston or the degree to which it sur-

vived Davis, since there is lacking here a history

of invidious discrimination sufficient (with dis-

parate impact) to trigger its application.

23a

the Bar was eliminated in 1957, "coinci-

dentally" shortly after a black applicant

used this method. Finally, they contend

that reciprocity was abolished in January

1972, not long after a black member of the

Oklahoma Bar applied under the reciprocity

rule for admission to the Bar.

The Bar Examiners respond with three

points. First, they note, and avpellants

do not contend otherwise, that there have

never been laws or rules of court prohibi-

ting blacks from practicing law in the State

or imposing different standards based on

race. This is important -- perhaps of con-

trolling importance. Second, it is statis-

tically clear that admission to the State's

Bar has been relatively open to blacks --

according to the 1970 Census, South Carolina

has the highest proportion of black lawyers

in its Bar of any state in the nation. °

Finally, they cite nevtral reasons for all

6. The District of Columbia has a higher

percentage. Of D.C. lawyers, 9.4% are black, as

compared with 3. 4% in South Carolina. North Caro-

lina is next with 3.3%, followed by Mississippi

with 2.8%. Defendants’ Exhibit A. App. - Exhibits

at 720.

24a

ee ees

Ce teen. tee i seve ee dees Bo

three changes in admission practices.’

We think it clear that the evidence

falls short of proving (unlike the school

cases) a deliberate state scheme of de

jure discrimination. Thus, despite proof

of disparate impact, the application of

Title VII standards is not appropriate.

Davis, supra.

Job-Relatedness Under the Equal

Protection Clause

We agree with the Fifth Circuit in

Tyler v. Vickery, 517 F.2d 1089 (5th Cir.

1975), cert. denied, 44 U.S.L.W. 3714 (U.S.

June 14, 1976),°® that under the Equal Pro-

tection Clause of the Fourteenth Amendment

7. They contend that as early as 1940 the

South Carolina Bar Association was on record sup-

porting the American Bar Association effort to abolish

both the "diploma privilege" and "reading law." Each

Change, they contend was simply part of the effort

to upgrade the educational qualifications of those

admitted to the practice of law in the State, and

each predated any possible racial motivations for

the changes. The Examiners further note that both

changes were in line with national trends. As to

"reciprocity," the Examiners contend that the law

was changed "in order to curb an increasing flow of

semi-retired lawyers into the state not sufficiently

skilled in the orinciples and practice of law in :

South Carolina."

8. Cited with approval in Washington v. Davis,

supra, 44 U.S.L.W. at 4793 n. 12.

25a

the issue is still whether the examination

is job related, albeit a less demanding

inquiry. "The hallmark of a rational classi-

fication is not merely that it differen-

tiates, but that it does so on a basis

having a fair and substantial relationship

to the purpose of the classification." Id.

at 1099. And here the purpose of the classi-

fication is to distinguish between persons

demonstrating minimal competence to practice

law and those lacking such knowledge and

skill.

The testimony introduced at trial on

the validity of the test questions consisted

primarily of testimony by the individual Bar

Examiners. Each testified to basically the

same facts: (1) that he is a successful

practicing lawyer in the State and, from

observation and experience, understands the

Skills necessary to practice competently;

(2) that he has examined sample questions

prepared by the National Council of Bar

Examiners and/or discussed question formula-

tion with others; and (3) that he designed

the questions he placed on the Bar so as

best to determine whether the applicant

possess the minimal level of competence

necessary to practice law in the State. In

26a

Soeenss

mee

ian i il

addition, the Examiners’ experts, Statler

and Bernreuter, testified that they had

performed correlation studies between per-

formance on the bar examination and per-

formance in law school as measured by the

law school grades. Both experts testified

that, in their opinion, the results demon-

strated the "content validity” of the bar

examination, where "content" is defined as

law school performance. ” Appellants did

not challenge the existence of such corre-

lation; they only attacked its significance

and argued that it was irrelevant to any

then established procedure for showing con-

tent validity. They contend that, absent

a job analysis, which was not performed

here, there can be no demonstration of

content validity. ?°

In Washington v. Davis, supra, the

Supreme Court held that, at least in vali-

dating admission to a police training

9. See App.-Exhibits at 618-21; App. 851-54,

871-72, 972-77.

10. See App. 865-66. 1026-27. See also Equal

Protection Challenge to the Bar Examination, 1975

Ariz. St. L. J. 531 (1976).

27a

program, a “positive relationship between

the [admission] test and training course

performance [is] sufficient to validate the

former, wholly aside from its possible

relationship to actual performance as a

police officer." 44 U.S.L.W. at 4795. In

fact, the Court found this relationship to

be “the much more sensible construction of

the job relatedness requirement." Id.

While the Court's treatment of the job

relatedness requirement in Washington v.

Davis has no direct application to pro-

fessional licensing examinations because

of the differing state interests involved,

we believe the Court's general reasoning

gives substantial support to the Examiners’

argument that under the Fourteenth Amendment

the relationship between law school per-

formance and the bar examination is signifi-

cant in establishing job relatedness. **

ll. If it were carried to its logical extreme,

seldan the path of the law, the Court's opinion on

this point surprisingly might invalidate almost all

state professional examinations. If the only demon-

stration of job relationship required is that it has

a positive relationship to training course perfor-

mance--e.g., law school—-then why does not training

school ormance itself demonstrate that the appli-

cant is fit to practice his profession? It is cer-

tainly clear that nothing correlates better with

training school performance than training school

(footnote continued to next page)

28a

LN lt Nin ttl, be bt A he AON eel 2 Bae Me

oli

a a

We believe that this statistical evi-

dence plus the other efforts of the Exami-

ners to intelligently relate the examination

questions to the skills involved in the

practice of law are sufficient to satisfy

the demands of the Fourteenth Amendment.

Whether the passing score selected by

the Bar Examiners bears "a fair and sub-

stantial relationship" to the determination

of minimal competency presents a much more

difficult question. In United States v.

North Carolina, 400 F.Supp. 343 (E.D.N.C.

1975) (three-judge court), the district

court, in a similar context, held that to

satisfy the demands of the Equal Protection

Clause the cut-off score selected must be

reasonably related to minimal competency,

and it held invalid the minimal passing

score selected by North Carolina for a

National Teacher Examination because of a

total absence of evidence showing it to be

related to minimal teaching competency.

(footnoted continued fran preceding page)

performance itself. An applicant for the Bar who

has graduated from an accredited law school argu-

ably may be said to stand before the Examiners

armed with law school grades demonstrating that he

possesses sufficient job-related skills. Why, then,

any bar examination at all?

29a

In this case, some evidence was intro-

duced to validate the cut-off score of 70

used by the Examiners, but it was very sub-

jective and general in nature and hardly

acclaimed by the educational testing experts

who testified. +? Perhaps the testimony most

supportive of the validity of the cut-off

score was provided by Examiner David Freeman,

who described his grading procedures as

follows:

My own approach is that, preliminary

to the grading process, to go back

to the exam question and in studying

through them very carefully, I make

a mental assessmen* of the importance

to be attached to each one. I do

not go through, for my own purposes:

I feel that it's a mechanical pro-

cess of assigning a point value to

each question. I then read the exam-

inations. I treat them not as ques-

tions to which so many points were

assigned to this or to that issue of

this question, but as a totality and

assign to that paper a grade which I

think is reflective of the student's

evidence of ability in answering the

whole.

Q. What form would that grade take,

a letter grade?

A. It would be a numerical grade.

And I think, for my own testing pur-

poses, the magic passing point is 70,

and I range upward or downward through

tnat.

12. See App. 715-16.

30a

ee We ee Oe

* Gece a Sn on

— ast msi cies bt Mitt hs ant acti tire aati ie es ea aa

Pe eg

tne birar~

App.

Q. All right sir, as I understand

it, you read the entire paper and

then assign a single numerical

grade, with 70 as passing?

A. That is right.

Q. As I understand it, you don't

attempt to assign points to any

particular portion of the test?

A. Not in a numerical fashion. It

is a matter, in the preliminary pro-

cess, of giving a mental assessment

of importance to this question, or

lesser importance to this question,

or lesser imvortance to that ques-

tion. When I have finished grading

a paper, what I would have is one

grade that I put on there.

- Exhibits at 325-26.

Other Examiners employed a very mecha-

nical system, assigning points to particular

parts of questions, summing those points,

and then in some cases obtaining the 70 cut-

off line simply by raising the highest score

to an "A" or perfect score.” We tend to

agree with appellants" expert that, if this

13. See, e.g., Denosition of J. Means McFadden,

App.- Exhibits at 266:

I took the top man and I figured whac an A

paper would be and how many points I'd have

to add to his score to get him an A paper,

and I gave him that number of points to get

him an A. And I gave everybody else the

same number of points.

3la

second system is utilized in the precise.

manner described by the Bar Examiners, it

would be almost a matter of pure luck if

the "70" thereby derived correspondea with

anybody's judgment of minimal competency.

But absent professional validated, ad-

ministered, and evaluated examinations, it

is not clear that to require grading along

the lines discussed by Freeman rather than

the more mechanical and arbitrary method

used by McFadden is anything more or less

than to demand greater subjectivity. It

is not at all certain which of these two,

both of whom are competent lawye2rs but lay-

men at question design and evaluation,

generates numerical scores which more accu-

rately reflect their "true" evaluation of

competency.

In view of the fact that all Examiners

both designed their exams and assigned scores

so as to indicate their judgment as to mini-

mal competency, we cannot find the results

obtained so unrelated to the State's objec-

tives as to violate the Equal Protection

Clause. }4

14. That is not to say that such an unpro-

fessional approach leaves us with much confidence

in the precise numerical results cbtained. It is un-

fortunate the State has not combined the advantage

of utilizing Bar Examiners who are practicing pro-

fessionals with consultation and guidance fram experts

in question evaluation.

32a

Il.

Appellants Spain and Kelly argue that

individually their rights under due process

and equal protection were denied in that,

through arbitrary and capricious application

of the Examiners' own standards, their

"borderline" papers were certified as "fail-

ing." It is beyond question that the Bar

Examiners are subject to the requirements of

the Due Process and Equal Protection Clauses

in the conduct of their duties. As the

Supreme Court stated in Schware v. Board of

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

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 Protection Clause of the Four-

Amendment. ..

There is no more fundamental proposition in

our law than that a state may not act arbi-

trarily and capriciously to deprive a citizen

of "liberty" or “property” interests. Such is

the basic thrust of Spain and Kelly's argu-

ment, and it is clear that if their allegations

are accurate they are entitled to relief.

Kelly and Spain base their case on the

following table of examination scores:

33a

“4

Ae)

Scores for each of 6 examiners

Applicant

71.8 Fail

78 81

1971

1970

1971

June,

#160

#128

Spain

#121

Pass

71.0

72 75 79

June,

Fail

70.5

70.3

69.6

69.5

69 F(69) 71

631/2

June,

Pass

73.8

1969

1971

1970

June,

Fail

69+ 70 71

Feb.,

Kelly

#17

#10

Fail

67 72 73 74

71 73

34a

Pass

69.3

1971

Feb.,

Reply Brief at 22.

Appellants'

Their basic argument is that under

standard Bar Examiner practice of "rounding

up" grades of .5 or better to the next

whole number both had passing cumulative

scores--Kelly 70 and Spain 71. The Exami-

ners' response is that under their practices

a person might "fail" the Bar even though

he had a cumulative passing score if he

had failed three or more of the individual

Examiners. In those cases, the decision

would be based, the Examiners testified,

upon the "configuration of scores" and

Examiners’ notes containing remarks on the

general quality of papers. We understand

that during these proceedings the actual

exam papers were not before the Examiners,

and there was no review of the applicant's

performance other than examination of the

pattern of.the grades and whatever notes

the Examiners may have made concerning each

paper.

But, appellants point out, individuals

who had lower cumulative totals and not ob-

viously different "configuration of scores"

were passed. As to Spain, the Examiners'

basic response is that one cannot expect

perfection in the difficult borderline

cases. As to Kelly, they argue that no one

35a

who failed three Examiners had a lower

score and was judged to have passed the

exam. They contend that individual # 10

"passed because he passed four examiners,"

indicating that passing would be automatic

in such sitautions. Brief for Appellee

at 63 n. 37. That, at least, was their

response before applicant # 17 was brought

to their attention. He passed four Exami-

mers, had a higher cumulative score than

# 10, and still failed the examination.

We therefore think the scores are comparable

Since there is no consistently applied

distinction between them.

At oral argument, the Examiners of-

fered a further explanation of how an indi-

vidual may receive a passing grade when

his cumulative total was lower than another

applicant who failed. They tell us that

written comments often accompany borderline

scores and are employed to make these diffi-

cult decisions. In this fashion, they ex-

plain their different treatment of two

applicants in 1973 (one passed and the other

failed) who both had cumulative averages

of 69 2/3. The one who passed the exam

failed three Examiners and, in addition,

36a

Hac nd Ae Aaa Rall

failed the Multistate portion

15 of the

exam. The who who failed it also failed

three Examiners but passed the Multistate

portion.

The Examiners told us that this was

perfectly reasonable because comments on

the grading sheets corresponded with the

ultimate results. The one who failed was

noted to be "poor in expressing himself"

and "didn't seem to have an understanding

of legal principles." The one who passed

was "marginal plus" and "had some good

answers." We find reliance on these com-

ments irreconcilable with the Board's con-

tention that numerical scores are used to

capture precise gradations in performance.

It is not possible to pursue the goal of

objectivity and also put ultimate reliance

on subjective notes as general and vague

as those cited above.

15. The Multistate Bar Examination (MBE) is

an "objective" multiple-choice examination con-

structed by the National Conference of Bar Fxaminers.

It was first given in South Carolina in February

1972.

37a

We would be concerned about this gen-

eral inconsistency of treatment of scores

in arriving at an overall result even if

the scores from each Examiners were abso-

lutely precise. However, as noted in the

previous section, they are far from precise

as to any Examiner, and for three Examiners,

who raised each score by an arbitrary number

of points, the correspondence of a score of

70 with even their own judgment of minimal

competency was little more than fortuitious.

On these facts, we hold that, as to Spain

and Kelly, the Bar Examiners acted arbi-

trarily and capriciously in violation of

both the Due Process and Equal Protection

Clauses of the Fourteenth Amendment. Ac-

cordingly, on remand, the district court

will order that they be certified as having

passed the South Carolina par. /®

16. Appellants argue on appeal that the

district court erred in refusing to certify this

as a class action. While we believe that Judge

Blatt might have properly done so (see, e.g.,

Doe v. Charleston Area Medical Center, Inc., 529

F.2d 638, 645 (4th Cir. 1975)), given our disposi-

tion of this case, we find the error, if any, to

be harmless.

38a

rit.

The Bar Examiners appeal Judge Blatt's

refusal to dismiss appellants' claim that

lack of an established process for challeng-

ing exam results violated due process. The

Examiners argue, first, that while there

was at the time the suit was begun no such

"express provision for review" or "“ascer-

tainble basis upon which to challenge bar

examination results," there was no denial

of due process because the State's Supreme

Court, under its exclusive jurisdiction of

admission to the Bar and under its inherent

powers, could "review actions of the law

examiners and ... make final determination

of who will and will not be admitted to" the

Bar. Brief for Appellee at 35. They contend

that no other rule or court action was re-

quired to guarantee an opportunity for review,

and, as a result, due process is satisfied.

We cannot determine on this record

whether adeguate review was then available.

We are not told whether such a system has

ever operated. Under such circumstances, we

find nothing improper in the district court's

order which deferred action on this claim

until the question was presented to the State

39a

Supreme Court. It is true that Judge Blatt's

order may be read to indicate his tentative

belief that the establishment of new review

procedures may be necessary. But cautiously

he deferred decision in favor of application

to the State Supreme Court, which was the

one body which could definitely determine

what, if any, review was available and appro-

priate under state law. 2?

As a second argument, the Examiners con-

tend that no review procedure was necessi-

tated because the right of reexamination

satisfied the requirements of due process.

See Tyler, supra, at 1103-05; Whitfield v.

Illinois Board of Law Examiners, 504 F.2d

474 (7th Cir. 1974).18 they contend that,

if a person actually possesses the requisite

skills, it will certainly be demonstrated by

at least one of a series of reexaminations,

and that the chance "'the same individual

would be the victim of error after two re-

examinations is literally one in a million.'"

Brief for Appellees at 38, citing Tyler,

supra, at 1104.

17. Because of the pendency of this appeal,

the South Carolina Supreme Court has stayed action

on appellants’ petition for admission to the Bar and

review of their examination scores.

18. See also Camment, Review of Failing Bar

Examinations: Does Reexamination Satisfy Due Process?,

52 Bos. U.L. Rev. 286, 300-01 & n. 114-15 (1972).

40a

To our knowledge, a person is not re-

guired by any state to repeatedly demonstrate |

his competence to practice law. The rule is: |

once is enough. And the reason for the rule

is that it takes work, effort, and, nowadays,

money to prepare for a bar examination.

Moreover, the license is deemed of sufficient

value that delay in getting it is an injury.

It is true that some courts have held

that reexamination is a more effective remedy

than review because the administrative burden

of allowing challenges was perceived to be

too great. 1° We are not persuaded. 79°

AFFIRMED IN PART;

REVERSED IN PART;

AND REMANDED.

19. It is significant, we think, that after

initiation of this suit the State voluntarily estab-

lished procedures for review of failing papers.

Furthermore, the administrative burden argument has

not been made by the State in its brief.

20. In both Tyler and Whitfield, the state

bar under challenge allowed the applicant unlimited

Opportunity to retake the bar. In South Carolina

at the time of the district court's opinion in this

case, an applicant was allowed only three opportuni-

ties to take the examination.

4la

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

CHARLESTON DIVISION

[Filed Oct. 18, 1973]

DAVID RICHARDSON, PATRICIA

KING, PATRICK KELLY and

HIRAM SPAIN,

Plaintiffs, Civil Action

No. 72-1219

-V=-

J. MEANS MCFADDEN, MORRIS

)

D. ROSEN, C.W.F. SPENCER, )

ROBERT D. SCHUMPERT, DAVID )

)

L. FREEMAN and ALBERT L.

JAMES, JR., individually

and as members of the State

Board of Law Examiners; and

MISS FRANCES SMITH, Clerk

of the Supreme Court of

South Carolina,

Defendants.

This is an action for declaratory and

injunctive relief, broughtpursuant to 42

U.S.C. 1981, et seq., in which the plain-

tiffs, alleging violation of rights

guaranteed them under the Equal Protection

and Due Process Clauses of the United

States Constitution, ask this court to

declare as discriminatory and unconstitu-

tional the practices by which the defen-

dant members of the State Board of Law

Examiners evaluate applicants for admission

42a

to the Bar of the Supreme Court of South

Carolina. This court refused to permit

this litigation to be brought as a class

action, and the four plaintiffs thus sought

an order for themselves that would admit

them to the practice of law in this State

without having passed the semi-annual

bar examination which is conducted by

the aforementioned defendants for, and on

behalf of, the Supreme Court of South

Carolina, pursuant to the authority granted

that Court by Section 56-97(b) of the

1962 Code of Laws of South Carolina, as

amended.

The plaintiffs are all black and are

graduates of several different law schools.

Plaintiff Richardson graduated from

Washington College of Law of American

University in 1970, after having pre-

viously attended Howard University Law

School; plaintiffs Kelly and Spain grad--

uated from Howard University Law School

in 1966 and 1971, respectively; and plain-

+iff King graduated from North Carolina

Central University Law School in 1969.

These plaintiffs allege that the procedure

for admitting applicants to practice law

43a

in South Carolina is constitutionally

infirm because: (1) the State Board of

Law Examiners purposely discriminates

against blacks in grading bar examination

papers; (2) the bar examination itself

inherently discriminates against blacks

whose segregated educational background

severely restricts them in competing

with white applicants who take the same

examination;: (3) a greatly disproportion-

ate number of blacks fail the bar examina-

tion and no demonstrative evidence has

been produced that the bar examination as

given by the defendant Law Examiners is

an appropriate vehicle to test the skills

required of a practicing attorney; (4)

there is no established procedure for an

applicant who fails the bar examination

to seek review of the grading of his

examination paper or, alternatively, to

request a hearing at which time such ap-

plicant might present himself to the Board

of Law Examiners for further evaluation

of his background, which evaluation might

reflect possession of the skills requisite

to establishing minimal competence to

practice law.

44a

The plaintiffs’ first contention

that the defendant Law Examiners pur-

posely discriminate against blacks in the

grading of the bar examination papers is

completely unfounded and utterly without

merit. The evidence adduced in the

instant case lucidly demonstrates that

the examination papers are identified

exclusively by number and that no law

examiner is privy to the actual identity

of the applicant whose paper he grades.

The only person who possesses knowledge

of the actual identity of a particular

applicant is the defendant, Miss Frances

Smith, who is the Clerk of the Supreme

Court of South Carolina. The list matching

the name of an applicant with the identifi-

cation number used on that applicant's

examination paper remains in the exclusive

possession and control of Miss Smith and

no law examiner ever views this list or

has knowledge of the information contained

thereon. Plaintiffs, in a further effort

to prove intentional discrimination against

them, unsuccessfull attempted to demon-

strate that the styie of writing of blacks

is indigenous to that class to the end

that a law examiner can easily recognize

45a

the paper of a black examinee and discri-

minate in grading without having prior

knowledge that such examinee was black.

From the evidence submitted, it is crystal

clear to this court that the Board of Law

Examiners in no way has discriminated

against the plaintiffs in particular, or

blacks in general, and the grading of

examination papers by number rather than

name should provide adequate assurance

to the plaintiffs that the bar examination

is fairly and properly administered. The

record in this case unequivocably demon-

strates a fact long known by this court,

to-wit, that the individual members of the

Board of Law Examiners are successful

attorneys possessed of the highest char-

acter and integrity who, at the request

of the Supreme Court of this State, have

undertaken an awesome task in agreeing to

devote the required time semi-annually

to fairly prepare and impartially grade

several hundred bar examination papers.

Reviewing plaintiffs' second conten-

tion that the bar examination inherently

discriminates against blacks, the courts

have uniformly held that a state may,

46a

within constitutional bounds, require

that applicants for admission to the bar

meet prerequisites “which have a rational

connection with the applicant's fitness

or capacity to practice law." Schware v.

Board of Bar Examiners, 353 U.S. 232

(1957); see, Willner v. Committee on

Character and Fitness, 373 U.S. 96 (1963);

Konigsberg v. State Bar of California,

353 U.S. 252 (1957); Halliman v. Committee

of Bar Examiners, 65 Ca.(2) 447, 55 Cal.

Rptr. 228, 421 P.(2) 76 (1966). The hypo-

thetical question, essay type examination

given in South Carolina has been approved

in a number of jurisdictions. See, Chaney

v. California, 386 F.(2) 962, 964;

Feldman v. Arkansas Board of Law Examiners,

438 F.(2) 699; Tyler v. Vickery, C/A

#15866, (N.D. Ga. 1972); Parrish v. Board

of Bar Examiners of Alabama State Bar,

C/A #3809-N, (M.D. Ala. 1973). In the

opinion of this court, from the testimony

presented here, the bar examination

administered in South Carolina is a proper

method by which well qualified bar

examiners determine whether a particular

examinee exhibits the necessary knowledge

in each of the required subjects to permit

47a

such examinee to competently practice law

in this state. The type of examination

used by the, Board of Law Examiners has

universally been recognized and applied in

both bar examinations and law schools as

the most utilitarian method of testing

the ability of a particular examinee to

perceive and apply abstract legal princi-

ples to given factual si ions. Viewed

in this light, it is manifest that the

South Carolina bar examination as presently

administered has a rational connection

with any applicant's fitness or capacity

to competently practice law in this state.

While it is true that no one can legiti-

mately contend that the bar examination is

an infallible "success meter", the rational

relationship between such examinations and

competence to practice law is recognized

in forty-seven (47) of the fifty (50)

states, and this court rejects the plain-

tiffs' contention that the bar examination

in South Carolina is inherently discrimina-

tory. When a procedure has been developed

by a state to protect the liberty and

property of its citizenry, a court should

be especially leery of reconstructing such

48a

procedure, unless evidence adduced re-

garding the same compels the conclusion

of unfairness and discrimination, factors

certainly not present here.

The plaintiffs next argue that a dis-

proportionate number of blacks are un-

successful when taking the bar examination

and this fact creates a presumption of

discrimination, which presumption is

binding on this court unless the defendants

offer a satisfactory legal explanation to

dispel such presumption. Brown v. Gaston

County Dyeing Machine Co., 457 F.(2) 1377

(4 Cir. 1972). The evidence presented

here on this issue by the defendants has,

in this court's opinion, overcome the pre-

sumption of discrimination in that it

appears that a significant percentage of

the blacks who have failed the examination

have attended one particular law school

whose academic standards for admission

are admittedly less stringent than the

standards of virtually all other accredited

law_ schools. This particular school,

Howard University Law School, has as its

laudible purpose the assimilation of as

many black attorneys as possible into the

49a

legal profession in the various states of

the nation, and, in order to accomplish

this result, Howard University Law School

has admitted many high risk students.

The uncontradicted evidence reveals that

Howard University law graduates on a

nationwide basis do not fare nearly as

well on state bar examinations as do

graduates of other accredited law schools,

and the proven experience in South Carolina

too, has been -that black graduates of the

University of South Carolina Law School

attain a much higher rate of passage on

bar examinations than do graduates of

Howard University. In reaching this con-

clusion, this court does not intend criti-

cism of Howard University Law School, for

that school's efforts to increase tre

number of qualified black attorneys ad-

mitted to practice throughout the United

States deserves praise, not opprobrium.

This court recognizes, particularly in

South Carolina, that the black attorney

has been of special and immeasurable value

in solving community problems, advancing

the causes of minority groups, and pro-

moting tranquility between the races. On

the one hand, this court understands the

50a

need and value of having competent black

attorneys admitted to practice in this

state, but, on the other hand, this court

recognizes that the State of South Caro-

lina must establish reasonable standards

equally applicable to all who seek ad-

mission to the practice of law in this

state. The plaintiffs themselves testi-

fied, as did one of the plaintiffs' wit-

nesses, himself a truly outstanding black

attorney, that the black examinees neither

desired, nor were they entitled to, special

consideration, but that such examinees

desired only to be graded on an equal

basis with all other examinees. The fact

that the standards used by the Board of

Law Examiners may work a disproportionate

hardship on black examinees does not estab-

lish discrimination against blacks in

general, or the plaintiffs in particular,

unless such standards are arbitrary, or

do not meet the rational relationship test,

or are applied differently to blacks than

to whites. (See, Schware, supra, and Tyler,

Supra.) Since a reasonable explanation

has been advanced by the defendants for

the fact that a greater percentage of

whites than blacks pass the bar examination

5la

and since there is no evidence here that

the standards used by the Board of Law

Examiners are arbitrary, or that such

standards are unfairly applied to blacks,

the court having previously determined

that a rational relationship does exist

between the bar examination as given and

any applicant's competence to practice law

in South Carolina, this court is of the

opinion that the disproportionate rate of

failure of black bar examinees is not the

result of any unconstitutional infirmity,

either inherent or purposeful, in the bar

examination.

Finally, plaintiffs assail the failure

of the bar admission procedure to provide

an unsuccessful examinee the opportunity

to have his examination paper reviewed to

ascertain the reasons for his failure, and

they attack, too, the lack of an established

plan for such an examinee to meet with the

Board of Law Examiners to have his legal

qualifications further evaluated. The

absence of such review procedures is

claimed by the plaintiffs to deprive un-

successful examinees of due process of law.

Some courts have held that there is no con-

stitutional right to an adversary review

52a

of bar examinations. Ex parte Ross, 196

Ga. 499, 26 S.E.(2) 880, 197 Ga. 257, 28

S.E.(2) 925 (1944); Miotec v. Nair, 4

Conn. Cir. 313, 231 A.(2) 95; In re Monhahan,

126 Ver. 53, 222 A.(2) 66, 126 Ver. 193,

225 A.(2) 387, cited in Parrish, supra.

The establishment of such a review procedure

rests within the inherent authority of the

Supreme Court of South Carolina. 1962 Code

of Laws of South Carolina, Section 56-96.

Ex parte Garland, 4 Wall. 333, 18 L.Ed. 366

(1867); Brydonjack v. State Bar, 208 Cal.

434, 281 P. 1018 (1929); Rosenthal v. State

Bar Examining Committee, 116 Conn. 409,

165 A. 211 (1933); Payne v. State, 52 Ga.

App. 425, 183 S.E. 638 (1936); Re Appli-

cants for License, 143 N.C. 1, 55 S.E. 635

(1906). Since the authority to establish

a post-examination review procedure is

vested in the Supreme Court of South Caro-

lina, and the plaintiffs here admittedly

have failed to seek relief in that Court,

it would not, in this court's opinion, be

appropriate to decide the due process issue

here presented until the Supreme Court of

South Carolina has been given an opportunity

to review the same. The principle of comity,

53a

so vital to the maintenance of a stable

federal-state judicial relationship, de-

mands that+:this court abstain from further

action in this case at the present time.

Lynch v. Snepp, 472 F.(2) 769 (4 Cir. 1973).

This court has complete confidence that

the Supreme Court of South Carolina will

offer the plaintiffs a fair and equitable

forum in which they can advance their due

process claim, if they be so advised to

raise such issue in that court.

Based on the foregoing, it is

ORDERED, that the due process issue

herein presented by the plaintiffs be, and

the same hereby is, dismissed without pre-

judice, and the plaintiffs are hereby given

the right to move this court to reinstate

this case for final determination of this

due process issue after the plaintiffs

have exhausted such procedures as the

Supreme Court of South Carolina may make

available to them.

IT IS FURTHER ORDERED, that, except

as above set forth, the complaint herein

is dismissed with prejudice.

54a

IT IS FURTHER ORDERED, that each party

pay its own costs in this case.

Charleston, South Carolina

October 18, 1973

s/ Sol Blatt, Jr.

UNITED STATES DISTRICT JUDGE

55a

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