# Petition — Richardson v. McFadden > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0329%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 435 U.S. 968 ## Text ) aan 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, ii 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 21 Constitutional Provisions 16 United States Constitution Amendment Fourteen, §1l passim 20 19 Statutes 19 South Carolina, Stat. at Large 1925 (34) 69 6 as Rail United States Code 28 U.S.C. §1254(1) 2 16 17 19 19 18, 20 19 19 . 14, 15 19 18 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? 2 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. 5 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. el 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. 10 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 ll 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. 12 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. 13 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). 15 14 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), 16 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. 17 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. 20 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). 21 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 22 Sr 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. la 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. I. 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. 2a 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 3a 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 4a 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 5a 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 is 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; 6a 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. 7a 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). 8a 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) 9a 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. Ze 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 wa Se 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). g 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 ss 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 13 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 “4 © a. ~~ n Wn Ae) a ey oY © _ ey > c Scores for each of 6 examiners Applicant 71.8 Fail 78 81 71 68 67 67 66 66 1971 1970 1971 June, #160 #128 Spain #121 Pass 71.0 72 75 79 72 67 66 June, Fail 70.5 70.3 69.6 69.5 80 71 68 69 F(69) 71 66 66 631/2 June, Pass 73.8 78 73 1969 1971 1970 June, Fail 69+ 70 71 71 70 66 Feb., Feb., Kelly #17 #10 Fail 67 72 73 74 71 73 60 34a Pass 69.3 73 66 63 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0329%3A1. Public record. Not legal advice.