Appendix — Stern v. Tarrant County Hospital District
Supreme Court brief1986
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~ FILED
85-1262 y) FEB 18 1988
JOSEPH fF. SPANIOL, JR.
CLERK
No.
IN THE
Supreme Court of the United States
OCTOBER TERM, 1985
PAUL A. STERN, ET AL,
Petitioners
VS.
TARRANT COUNTY HOSPITAL DISTRICT, ET AL,
Respondents
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT
Or APPEALS For THE FIFTH CIRCUIT
APPENDIX TO PETITION FOR
WRIT OF CERTIORARI
KEVIN J. KEITH
JAMES A. WILLIAMS
Bailey and Williams
2150 One Dallas Centre
Dallas, Texas 75201
(214) 754-9300
February 11, 1986
(i)
APPENDIX
I. Opinion of the Court of Appeals en banc
II. Judgment on Rehearing en banc
III. Order denying reconsideration en banc
IV. Fifth Cireuit Panel opinion (withdrawn)
V. District Court opinion (including findings of fact)
I-1
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Pau A. STERN, et al..
Plaintiffs-Appellees.
¥,
TARRANT County Hospitac District, No. 83-1638
Defendant-Appellant, OPINION
v.
GeorGE J. LuIBEL,
Defendant-Appellee.
Filed December 18, 1985
Before: Clark. Chief Judge. Goldberg. Gee, Rubin. Reavley.
Politz, Randall, Tate. Johnson, Williams. Garwood. Jolly.
Higginbotham. Davis, Hill and Jones. Circuit Judges.
Opinion by Judge Patrick E. Higginbotham:
Dissent by Judge Rubin, with whom Clark, Chief Judge. Politz.
Tate, and Johnson, Circuit Judges, join dissenting
Appeal from the United States District Court
for the Northern District of Texas
Eldon B. Mahon, District Judge, Presiding
SUMMARY
Constitutional Law
Appeal from district court decision holding that a state hospital
unconstitutionally denied five osteopathic physicians equal protec-
tion under the law and thereby violated the fourteenth amendment
by denying the osteopaths staff privileges. Panel decision affirming
district court vacated. District court judgment reversed upon en
banc consideration.
1617
I-2
1618 STERN, ET AL. v. TARRANT Co. Hosp. Dist.
The osteopaths and the John Peter Smith Hospital—operated by
a Texas state agency—stipulated that the sole reason the plaintiffs
were denied staff privileges was because they had trained in osteo-
pathic-institution programs rather than in allopathic programs.
The Texas state legislature in 1981 enacted the Medical Practice
Act and declared its intention to prohibit state-agency hospitals
from differentiating solely on the basis of the academic medical
degree held by a licensed physician in determining medical staff
appointments.
The district court concluded that there was no rational bas’; for
the county hospital to treat allopaths and osteopaths differently.
particularly in light of the contrary decision of the Texas legisla-
ture, as expressed in the Texas Medical Practice Act. The court thus
struck down the hospital’s rule as a violation of the equal protec-
tion clause. The panel opinion of this Court adopted a different
rationale, but reached the same conclusion. The panel argued that
the Texas legislature has expressed the determination that there are
no appreciable differences in the allopathic and osteopathic medi-
cal degrees and found that there was an equal protection violation.
implicitly concluding that there is no rational basis for the county
hospital's rule. In the panel’s view, the equal protection violation
stems from the hospital’s violation of state law. The concurring
opinion endorsed the per se approach and suggested as an alterna-
tive rationale that the hospital's rule is a violation of the due pro-
cess clause, finding a property interest in staff privileges because the
legislature has commanded that those privileges not be denied on
the basis of academic medical degree and that depriving plaintiff of
this property interest was necessarily arbitrary and thus a violation
of the fourteenth amendment.
[1] The per se approach is rejected. The guarantees of the four-
teenth amendment, its requirement that state laws be applied in the
same way to those entitled to equal treatment and its promise of
protection from arbitrary or irrational state action, are guarantees
that turn on federal constitutional standards of equality and ratio-
nality rather than on state standards.
[2] The outer constitutional limit imposed by the fourteenth
amendment upon state power is that all the state’s acts must be
rational. In equal protection terms, if the legislative purpose is
legitimate. a challenge may not prevail so long as the question of
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STERN, ET AL. Vv. TARRANT Co. Hosp. Dist. 1619
rational relationship to the legislative purpose ts at least debatable.
Acts violative of the state legisiature’s chosen means, although by
definition, contrary to state law. are not ipso facto contrary to the
fourteenth amendment. The constitutional test for rationality of a
legislative classification, whether the classes be distinguished in the
text of the law or in its administration, is whether any rational deci-
sion maker could have so classified.
[3] A proper application of Yick Wo v. Hopkins, 118 U.S. 356
(1886), will not support the finding of an equal protection violation
on the facts of this case. To the extent that the Supreme Court has
addressed the point, it has confirmed the view that under Yick Wo
state law does not define the equality or rationality guranteed by
the fourteenth amendment. [4] That Yick Wo’s guarantee of equal-
ity in administration of laws turns on federal rather than state stan-
dards is also made plain in the Supreme Court’s rules on selective
prosecution. [5] These cases make plain that Yick Wo did not make
state law the determinant of what classifications may be drawn
under the fourteenth amendment. Recognizing that unconstitu-
tional classes may be created in the administration of ostensibly
neutral laws, Yick Wo forbids such classifications.
[6] Because the district court found differences between allopaths
and osteopaths that are in this Court’s view sufficient to permit
Texas or its agencies to differentiate in the granting of hospital staff
privileges, the district court’s conclusion of unconstitutionality
cannot stand. [7] A factual conclusion by the district court. based
on conflicting evidence about an historical fact, would be binding
in this Court. But such a factual conclusion could not be used to
displace a legislative judgment and therefore could not be a sufh-
cient basis for declaring the hospital district’s action unconstitu-
tional.
{8] The question is whether the legislature cou/d have sanctioned
the classification drawn by the hospital district without denying the
osteopaths equal protection. If the district medical approaches
adopted by allopaths and osteopaths provide a sufficient basis for
such a classification. the inquiry ends. [9] In Maceluch v. Wysong,
680 F.2d 1062 (Sth Cir. 1982). this Court concluded that the differ-
ences between allopathic and osteopathic schools in their approach
to medical treatment justified the state’s requirement that osteo-
paths identify themselves to medical consumers with the D.O.
1-4
1620 STERN, ET AL. V. TARRANT Co. Hosp. Dist.
label. In that case, this Court concluded that “the state has demon-
strated a rational relationship between its licensing categories and
debatable. if not real, differences between doctors possessing M.D.
~ and D.O. degrees. This is ali that the Constitution requires.” [10] It
is no less rational for the state, in the exercise of its police power. to
make the same choice that Mace/uch permitted it to give to its citi-
zens. Nor does the choice become less rational when it is made by
a State agency such as the hospital district here.
The dissent argued that the majority disregarded the plain lan-
guage of the fourteenth amendment and the historic reasons for its
enactment, for the equal protection clause forbids. and was
intended to forbid, a statute to purposefully and arbitrarily deny to
one class of persons the protection of state law that it affords to
another class of persons.
OPINION
PATRICK E. HIGGINBOTHAM. Circuit Judge:
We reaffirm today the settled constitutional rule that state agen-
cies may pursue legitimate purposes by any means having a con-
ceivable rational relationship to those purposes. A decision that
passes constitutional muster under the rational-basis test does not
violate the equal protection clause simply because it violates a state
anti-discrimination statute.
Five osteopaths were denied staff privileges by the John Peter
Smith Hospital, which is operated by the Tarrant County Hospital
District, a Texas state agency, because they had trained in an osteo-
pathic-institution and not in an allopathic program. Their attack
upon the constitutionality of this exclusion was sustained by the
district court after a trial on the merits. The district court. 565
F.Supp. 1440, heid that the hospital had unconstitutionally denied
the osteopathic physicians equal protection under the law and
thereby violated the fourteenth amendment. This judgment was
affirmed by a divided panel of our court. A majority of the judges
of this court voted to consider the case en banc, thereby vacating
the panel opinion. It is the judgment of the district court that we
now review.
1-5
STERN, ET AL. v. TARRANT Co. Hosp. Dist. 1621
The factual background, as recited by the panel, is as follows:
John Peter Smith Hospital is operated by the Tarrant
County Hospital District, a Texas state agency. Before
1974, the hospital bylaws permitted a physician to be a
_member of its staff only if he was a member of the Tarrant
County Medical Society, an association which admitted
only allopaths. In 1974, this was changed to require gradu-
ation with a degree of Doctor of Medicine (M.D.) from a
school accredited by the Council on Medical Education of
the American Medical Association. The Council accredits
only allopathic schools and only allopathic schools award
the M.D. degree: osteopathic schools award the degree
Doctor of Osteopathy (D.O,). The requirements for
admission to the hospital staff were again changed in
1979. The requirement of an M.D. degree was deleted.
and instead, staff members were required to be licensed by
the state and to have two years of post-doctoral training in
a program accredited by the Accreditation Committee [on
Graduate Medical Education]. [The Accreditation Com-
mittee is affiliated with the AMA and accredits only pro-
grams in institutions aligned with allopathic medicine.]}
The parties stipulated that the sole reason the plaintiffs
were denied staff privileges was because they had trained
in osteopathic-institution programs [rather than in pro-
grams approved by the Accreditation Committee] .. ..
In 1981, the Texas state legislature enacted the Medical
Practice Act and declared its intention “to prohibit
[state-agency hospitals from differentiating] solely on the
basis of the academic medical degree held by” a licensed
physician in determining medical staff appointments.
[Tex. Rev. Civ. Stat. Ann. art. 4495b, Subchapter A.
§ 1.02(9) (Vernon Supp. 1984).] The Act recognizes that
«1-6
1622 STERN, ET AL. v. TARRANT Co. Hosp. Dist.
all physicians are examined by the same board. pass the
same examination, and meet the same _ standards.
“irrespective of academic medical degree.” [/d.] In order
to be licensed under the Act, a physician must have gradu-
ated from an approved medical school. but both schools
accredited by the Accreditation Committee and those
accredited by the American Osteopathic Association are
approved.
{The plaintiffs in this case, Dr. Paul Stern and four other
osteopaths, each of whom has had at least two years of
post-doctoral training in a program accredited by the
American Osteopathic Association, challenge the county
hospital's refusal to grant them staff privileges. ]'
The district court heid that the hospital's rule denying staff privi-
leges to those who trained in osteopathic-institution programs vio-
lated the plaintiffs’ fourteenth amendment right to equal protection
of the laws. The court found no justification for the hospital's
requirement, save to exclude osteopaths from the hospital staff.
That exclusion was itself irrational, the court concluded, because
there were no significant differences between the qualifications of
allopaths and osteopaths.
The district court noted the contrary decision of the Supreme
Court in Hayman v. Citv of Galveston, 273 U.S. 414 (1927), but
refused to be bound by that case. given the changes in medical edu-
cation requirements for osteopaths that had ensued in the fifty
years since Hayman was decided. The court then characterized as
dicta language in our own decision in Berman vy. Florida Medical
Center, Inc., 600 F.2d 466 (Sth Cir. 1979), which upheld a similar
rule that denied staff privileges to osteopaths. The district court did
not mention our decision in Maceluch v. Wysong, 680 F.2d 1062
1755 F.2d 430, 432. This factual recitation by the panel is unchallenged. and
we adopt it here.
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I-7
STERN, ET AL. Vv. TARRANT Co. Hosp. Dist. 1623
(Sth Cir. 1982), in which we rejected a challenge by osteopaths to
Texas’ prohibition of their use of the initials “M.D.”
Being in its view free of binding precedent, the district court con-
cluded that there was no rational basis for the county hospital to
treat allopaths and osteopaths differently, particularly in light of
the contrary decision by the Texas legislature, as expressed in the
Texas Medical Practice Act. Accordingly, the court struck down the
hospital's rule as a violation of the equal protection clause.
oe
The panel opinion adopted a different rationale but reached the
same conclusion as the district court. Rather than hold Hayman
outdated or distinguish Berman and Maceluch, the panel found
“... it ummecessary to reach so far.” 755 F.2d at 433. Arguing that
the Texas legislature has. in the Texas Medical Practice Act.
expressed the determination that there are no appreciable differ-
ences in the allopathic and osteopathic medical degrees and that
the Act forbids state hospitals to confer or deny staff privileges
“solely on the basis of academic medical degree.” the panel found
an equal protection violation, implicitly concluding that there is no
rational basis for the county hospital’s rule.
In the panel’s view, the equal protection violation stems from the
hospital’s violation of state law, its apparent disregard of the state
requirement that Osteopaths and allopaths be treated equally:
Because the siate itself has required its agencies to treat
allopathy and osteopathy alike, it is not necessary for us to
consider whether the state might. if it chose to do so. find
a rational basis for distinguishing between allopathic and
osteopathic physicians generally. The Texas Medical Prac-
tice Act mandates that Texas institutions must accord
equal treatment to professionals educated in either philos-
ophy.
755 F.2d at 434.
Chief Judge Clark's concurring opinion endorsed this per se anal-
ysis and suggested an alternative rationale—that the county hospi-
1-8
1624 STERN, ET AL. Vv. TARRANT Co. Hosp. Dist.
tal’s rule is unconstitutional as a violation of the due process clause.
Chief Judge Clark found a property interest for osteopaths in staff
privileges at the county hospital because the Texas legislature has
commanded that staff privileges at such hospitals shall not be
denied on the basis of academic medical degree. He then found that
depriving the plaintiffs of this property interest was necessarily
arbitrary and thus a violation of the fourteenth amendment. His
reasoning parallels the per se analysis: regardless of the rationality
of the state’s choice under Hayman or Berman, Texas has decided
that there is no reason to distinguish osteopaths and allopaths. and
there can be no rational basis for its agencies to continue to do so.
[1] We reject a per se equal protection analysis. The guarantees of
the fourteenth amendment, its requirement that state laws be
applied in the same way to those entitled to equal treatment and its
promise of protection from arbitrary or irrational state action. are
guarantees that turn on federal constitutional standards of equality
and rationality rather than on state standards. Converting alleged
violations of state law into federal equal protection and due process
claims improperly bootstraps state law into the Constitution. In
doing so, this novel approach would expand the scope of the four-
teenth amendment, would render its meaning less certain. and
would serve no legitimate policy.
shin
The per se equal protection construct purports not to overrule or
otherwise conflict with our decisions in Berman and Maceluch or
the Supreme Court’s decision in Hayman: it would permit the con-
cession, but find it irrelevant, that a rational state legislature or
state agency might distinguish between allopaths and osteopaths
without violating the fourteenth amendment. Under the per se
approach, a violation of federal equal protection is nonetheless
found because the Texas legislature has enjoined its state hospitals
to treat allopaths and osteopaths alike.
[2] The per se approach assumes that by choosing to forbid dis-
crimination against osteopaths, the state of Texas has necessarily
made the contrary decision by its state-agency hospital an irratio-
I-9
STERN, ET AL. v. TARRANT Co. Hosp. Dist. 1625
nal one. We disagree. The outer constitutional limit imposed by the
fourteenth amendment upon state power is that all the state’s acts
must be rational. In equal protection terms, if the legislative pur-
pose be legitimate. a challenge “may not prevail so long as the ques-
tion of rational relationship [to legislative purpose] is ‘at least
debatable.’ ” Metropolitan Life Ins. Co. v. Ward, 105 S.Ct. 1676.
1683 (1985) (quoting Western & S. Life Ins. Co. v. State Bd. of
Equalization, 451 U.S. 648, 674 (1981), and United States v. Caro-
lene Products Co., 304 U.S. 144, 154 (1938)). Cf City of New Orle-
ans v. Dukes, 427 U.S. 297, 303-04 (1976). When a legislature has
a choice of means, each rationally related to its legislative purpose.
it may constitutionally choose any of them. Its choice of one does
not render the others irrational. It follows that acts violative of the
chosen means. although by definition contrary to state law. are not
ipso facto contrary to the fourteenth amendment. The constitu-
tional test for rationality of a legislative classification. whether the
classes be distinguished in the text of the law or in its administra-
tion, is whether any rational decisionmaker could have so ciassi-
fied.
ati
The per se analysis is said to find its sustenance, at least in part.
in Yick Wo v. Hopkins, 118 U.S. 356 (1886). See 755 F.2d at 433 &
n.8. Yick Wo, however, does not support the conclusion. In Yick
Wo, a San Francisco ordinance required consent from the Board of
Supervisors before one could operate a laundry in a building made
of materials other than brick or stone. The Board granted permits
for laundries in wooden buildings to all non-Chinese applicants
save one, and to none of 200 Chinese applicants. 118 U.S. at 359.
The Court reversed Yick Wo’s conviction under the ordinance on
the ground that, although the law was facially neutral. it had been
applied so as to deny Chinese citizens equal protection of the laws.
id. at 362-63.
The principle of the case, broadly stated, is that when a facially
neutral statute is administered so as to create classes. those classes
must pass constitutiona! muster. The court struck it down because
the sole basis for the classification was “hostility to... race and
nationality ... which in the eye of the law is not justified... .” 118
U.S. at 874. Its rule differs from the central premise of the per se
1-10
1626 STERN, ETAL. v. TARRANT Co. Hosp. Dist.
approach: the panel in this case determined that a facially neutral
statute may not constitutionally be administered so as to treat dif-
ferently classes that the state has determined are similarly situated.
The distinction between the two rules is significant. Yick Wo
recognizes that facially neutral state laws present the opportunity
for discrimination, because they can be administered in a discrimi-
natory fashion. But Yick Wo does not replace the Constitution with
state law as the benchmark that determines which classifications
are permissible. That task is necessarily a matter of federal consti-
tutional. not state, law. Similarly, as the Supreme Court has said of
42 U.S.C. § 1983:
It is abundantly clear that one reason the legislation was
passed was to afford a federal right in federal courts
because. by reason of prejudice, passion, neglect. intoler-
ance or otherwise, state laws might not be enforced and
the claims of citizens to the enjoyment of rights. privi-
leges, and immunities guaranteed by the Fourteenth
Amendment might be denied by the state agencies.
Monroe vy. Pape, 365 U.S. 167, 180 (1961) (emphasis added).
overruled in part on other grounds, Monell v. Department of Social
Servs., 436 U.S. 658 (1978). This statement summarizes the results
of the Court’s extensive review of the historical background of sec-
tion 1983: federal courts are to afford a remedy only for such dis-
criminatory enforcement of state laws as violates the independent
guarantees of the fourteenth amendment.
[3] A proper application of Yick Wo will not support the finding
of an equal protection violation on the facts of this case. To the
extent that the Supreme Court has addressed the point, it has con-
firmed the view that under Yick Wo state law does not define the
equality or rationality guaranteed by the fourteenth amendment.
See Snowden v. Hughes, 321 U.S. | (1944). The selective prosecu-
tion cases, such as Oyler v. Boles, 368 U.S. 448 (1962), and its prog-
eny, also make plain that per se analysis is impoverished.
In Snowden the Court addressed an equal protection claim by a
candidate for the Illinois state legislature. The candidate received
sufficient votes in the primary to be nominated and placed on the
ballot, but.was unable to get on the ballot because the State Primary
I-11
STERN, ET AL. V. TARRANT Co. Hosp. Dist. 1627
Canvassing Board intentionally refused to certify his election. The
reasons for the board’s refusal did not surface in the opinion, but
the Court assumed that the Board had violated Illinois law by deny-
ing certification.
The Court found a number of flaws with the plaintiff's equal pro-
tection argument. The claim suffered from the same problem as
that in the case at bar: although there was a showing that state law
was violated, there was no showing that the violation also offended
‘ the federal equal protection clause. That is. the Court made clear
that the rationality of the Board’s decision was unaffected by the
state legislature’s prohibition of that decision. Since the legislature
could constitutionally have written a statute that would have
denied the plaintiff his nomination, the Board’s decision to do so in
violation of state law was necessarily also constitutional. Justice
Stone wrote:
[T]he action of the Board is... subject to constitutional
infirmity to the same but no greater extent than if the
action were taken by the state legislature. Its illegality
under the state statute can neither add to nor subtract
from its constitutional validity. Mere violation of a state
statute does not infringe the federal Constitution. ... And
state action, even though illegal under state law, can be no
more and no less constitutional under. the Fourteenth
Amendment than if it were sanctioned by the state legisla-
ture. Nashville,.C. & St. L. Ry. v. Browning, 310 U.S. 362.
369-70. See also Coulter v. Louisville & Nashville R. Co.,
{196 U.S. 599], 608-9; Hayman y. Galveston, 273 U.S.
414, 416; lowa-Des Moines Bank v. Bennett, 284 U.S. 239,
244. A state statute which provided that one nominee
rather than two should be certified in a particular election
district would not be unconstitutional on its face and
would be open to attack only if it were shown, as it is not
here, that the exclusion of one and the election of another
were invidious and purposely discriminatory. Compare
Missouri v. Lewis, 101 U.S. 22, 30. 32: Yick Wo v. Hop-
Kins, supra.
321 U.S. at 11.
I-12
1628 STERN, ET AL. v. TARRANT Co. Hosp. Dist.
[4] That Yick Wo’s guarantee of equality in administration of the
laws turns on federal rather than state standards is also made plain
in the Court’s rules on selective prosecution, the quintessential
Yick Wo problem. in Ovier v. Boles, 368 U.S. 448 (1962). for exam-
ple, the Court denied the equal protection claim of a West Virginia
prisoner who was sentenced to life imprisonment under the state’s
three-time felony offender statute. The prisoner complained that
the state had selectively enforced the statute against himself and
other prisoners. but the Court explained that because federal
standards of equality were not shown to have been violated in the
discriminatory enforcement. no equal protection claim was stated:
Even though the statistics in this case might imply a policy
of selective enforcement. it was not stated that the selec-
tion was deliberately based upon an unjustifiable standard
such as race, religion, or other arbitrary classification.
Therefore grounds supporting a finding of a denial of
equal protection were not alleged.... Cf Snowden v.
Hughes, 321 U.S. | (1944); Yick Wo v. Hopkins, 118 U.S.
356 (1886) (by implication).
Id. at 456. The court reaffirmed the same rule just this past term
when it rejected the equal protection claim of a young man who
refused to register for the draft and who was singled out for prose-
cution after he wrote letters to government officials stating that he
would not register. See Wayte v. United States, 105 S.Ct. 1524
(1985). Our own court recently followed the principle as well.
rejecting the selective-prosecution claims of striking air traffic con-
trollers who failed to demonstrate that the government’s decision
to prosecute them was discriminatory enforcement that was
“invidious or in bad faith in that it rest{ed] on such impermissible
considerations as race, religion, or the desire to prevent [the] exer-
cise of constitutional rights.” United States v. Hoover, 727 F.2d 387.
389 (Sth Cir. 1984) (quoting United States v. Greene, 697 F.2d
1229, 1234 (Sth Cir.), cert. denied, 463 U.S. 1210 (1983)).
[5] Both Snowden and the selective prosecution cases make plain
that Yick Wo did not make state law the determinant of what classi-
fications may be drawn under the fourteenth amendment. Simply
and correctly recognizing that unconstitutional classes may be cre-
Sei oStre 4.
2 EPR
I-13
STERN, ET AL. V. TARRANT Co. Hosp. Dist. 1629
ated in the administration of ostensibly neutral laws. Yick Wo
forbids such classifications.
The panel also cited several cases in which federal procedural
requirements were tied to state-created substantive rights.
Compare 755 F.2d at 433-34 & nn. 12-13, and id. at 434-35 (Clark.
C.J., concurring) with id. at 438 & n.8 (Goldberg, J.. dissenting). It
is of course quite true that, in our federal system, most property
rights are created by state law. It has inexorably followed that the
fourteenth amendment’s due process clause operates to protect
state-created property rights. The constitutional procedural stan-
dards of the due process clause are. however. wholly and exclu-
sively federal in nature: a violation of state law is neither a
necessary nor a sufficient condition for a finding of a due process
violation. Indeed. as Judge Goldberg pointed out in dissent. id. at
438 n.8, none of the Supreme Court cases cited by the panel major-
ity involved any violation of state law at all. It does not and cannot
follow from these due process decisions that every apparent trans-
gression of state law by a state agency triggers the operation of the
federal equal protection clause.
= a
Whatever seeming logical force there might be to the argument
that it is necessarily “irrational” and “arbitrary,” in the federal con-
stitutional sense. for a state agency intentionally to violate state
law, that force quickly dissipates when the implications of the argu-
ment are considered. If state law defines who is entitled to what
treatment or which means to a chosen goal are rational. then all
intentional violations of state law by state agencies would violgie
the fourteenth amendment: if the action were taken against a class
it would offend equal protection under the panel’s per se construct.
and if taken against an individual it would offend due process as
defined by Chief Judge Clark.
One example of how the per se approach would transmogrify
state law questions into constitutional claims springs readily to
mind. In those jurisdictions that have adopted a state “equal rights
amendment.” ratification of the proposed federal ERA would be
virtually superfluous because violations of the state ERA would
' simultaneously violate the fourteenth amendment. Furthermore.
I-14
1630 STERN, ET AL. Vv. TARRANT Co. Hosp. Dist.
federal courts would suddenly assume responsibility for determin-
ing the meaning of the state ERA’s and would encounter many of
the Erie difficulties that have bedeviled our exercise of diversity
jurisdiction. Whenever a federal court determined that a person
acting under color of state law had run afoul of one of these typi-
cally broad and vague state laws, it would conclude that “a state
agency's discriminatory action when state law commands equality
is a patent denial of equal protection to those denied equality.” 755
F.2d at 432.?
The principle that federal constitutional protection is indepen-
dent of state law is nothing new. In habeas review, we limit the issu-
ance of the writ to those cases where there have been federal
constitutional violations; we do not review all possible errors of
state law. In Pulley v. Harris, 104 S.Ct. 871 (1984). for example. a
prisoner under sentence of death was denied federal review of his
claim that he had been denied the “comparative proportionality
review” due him under state law: “A federal court may not issue the
[habeas] writ on the basis of a perceived error of state law.” /d. at
874-75. It would not be easy to explain why the Constitution
requires federal supervision of the enforcement of state law for the
benefit of those who wish to practice osteopathy but not for the pro-
tection of those facing execution at the hands of the state.
Our system of shared government power requires all the defer-
ence traditionally given in rational-basis review. Our lodestar is not
what the state legislature has done or purported to do, but what any
rational decisionmaker might have chosen to do. We may not be
“lost in a maze if we put that compass by,” but we certainly will be
trespassing on state domains. State law is in no way demeaned or
trivialized by its present status as state, rather than federal. law.
The federal judiciary, for its part, has enough federal law to enforce
without annexing new bodies of state legislation. We must, and
2In the case at bar. which involved a fairly precise state prohibition against
differentiating in medical staff appointments “solely on the basis of the aca-
demic medical degree held by™ a licensed physician, the district court had to
engage in a complex and extended analysis in order to determine whether the
state law had been violated. See 565 F.Supp. at 1445-52. In cases where state
law is less clear. federal courts would face correspondingly greater difficulties
and would to that extent be more prone to error.
LPT Ot: fee Ba
LOM AGT ALI
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STERN, ET AL. V. TARRANT Co. Hosp. Dist. 1631
will, leave violations of state law to be corrected by the appropriate
state mechanisms.
IV
[6] Having rejected the panel’s per se analysis, we undertake a
review of the district court’s judgment. Because the district court
found differences between allopaths and osteopaths that are in our
view sufficient to permit Texas or its agencies to differentiate in the
granting of hospital staff privileges, that court’s conclusion of
unconstitutionality cannot stand.
[7] In the trial of constitutional issues, the differing roles of his-
torical and legislative facts can present conceptual difficulties. We
need not in this case attempt to distinguish precisely between his-
torical and legislative facts in the district court’s findings: however
the findings be characterized, the state action in question was con-
stitutional. The general distinction between legislative and adjudi-
cative facts is nevertheless important because it helps to show why
the district court_ought to have asked only whether there was any
conceivable basis for the Tarrant County Hospital District’s
implicit legislative judgment regarding the import of the differ-
ences between the two medical training programs. A factual conclu-
sion by the district court, based on conflicting evidence about an
historical fact, would be binding in this court. But such a factual
conclusion could not be used to displace a legislative judgment and
therefore could not be a sufficient basis for declaring the Hospital
District’s action unconstitutional.
After a bench trial, the district court found that the Hospital Dis-
trict’s different treatment of allopaths and osteopaths was “not a
requirement which has as a foundation a reasonable basis such as
professional and ethical qualifications for the common good of the
public or the hospital itself”, 565 F. Supp. at 1454, and concluded
that the facts today are different from those existing at the time of
Hayman v. City of Galveston, 273 U.S. 414 (1927), see 565 F.Supp.
at 1443. It is conceded that the facts allow only the conclusion that
allopathic and osteopathic training programs have similar course
requirements and content, and that graduates face identical testing
and licensing requirements. We find no fault with the district court
opinion in this respect and we approve that court’s decision to use
I-16
1632 STERN, ET AL. v. TARRANT Co. Hosp. Dist.
the rational-relationship standard of review. We also agree that the
Texas Medical Practice Act is relevant to, though not dispositive
of, the question of whether there was a rational basis for differenti-
ation.
[8] The difficulty is that the district court also concluded that
“(t]he only remaining difference between D.O.’s and M.D.’s has
been described simply as one of philosophy.” 565 F.Supp. at 1443.
Our question is whether the legislature cou/d have sanctioned the
classification drawn by the Tarrant County Hospital District with-
out denying osteopaths equal protection. If the distinct medical
approaches adopted by allopaths and osteopaths provide a suffi-
cient basis for such a classification, our inquiry ends. Cf Home
Depot, Inc. v. Guste, No. 84-3532 (Oct. 10, 1985).
_[9] In Maceluch v. Wysong, 680 F.2d 1062 (Sth Cir. 1982), we
concluded that the differences between the allopathic and osteo-
pathic schools in their approach to medical treatment justified the
state’s requirement that osteopaths identify themselves to medical
consumers with the “D.O.” label. We adopted the opinion of the
district court, which explained:
Despite the fact that medicine is practiced within an
objective scientific framework, the decisional! processes of
a physician reflect not only the aggregate of a substantive
knowledge of clinical techniques, but also his judgments
as to the need for, and nature of, treatment. That skill,
born of experience, perception of human nature, and intu-
itions as to what is best for a patient, jumps over the many
voids in “scientific” knowledge and separates the scientist
from the doctor. It follows that two schools of medicine
that advocate differing approaches, even if they differ only
in their advocacy of differing philosophical approaches to
the same scientific realities, present a difference that a leg-
islature may note without unlawfully discriminating
against one, or preferring one over the other.
In sum, the state has demonstrated a rational relation-
ship between its licensing categories and debatable. if not
SAAS SNe DR VAN Hits ina SRS: pak ate aria
ge a eee
oe eoes Wands Ks r
1-17
STERN, ET AL. V. TARRANT Co. Hosp. Dist. 1633
real, differences between doctors possessing M.D. and
D.O. degrees. That is all that the Constitution requires.
Id. at 1066-68 (citation omitted).
[10] The reasons underlying our decision in Maceluch also apply
to the case at bar. We held that it was rational for the state to take
steps to ensure that medical consumers could distinguish easily
between allopaths and osteopaths. It is no less rational for a state,
in the exercise of its police power, to make the same choice that
Maceluch permitted it to give to its citizens. Nor does this choice
become less rational when it is made by a state agency, such as the
Tarrant County Hospital District. “[T]hose challenging the legisla-
tive judgment must convince the court that the legislative facts on
which the classifaction is apparently based could not reasonably be
conceived to be true by the governmental decisionmaker.”
Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464 (1981)
(quoting Vance v. Bradley, 440 U.S. 93, 111 (1979)). The legislative
facts involved in this case, as in Maceluch, are conceivably, if not
indubitably, true.
The judgment of the district court is accordingly REVERSED.
ALVIN B. RUBIN, Circuit Judge, with whom CHARLES CLARK,
Chief Judge, HENRY A. POLITZ, ALBERT TATE, and SAM D.
JOHNSON, Circuit Judges, join dissenting:
The majority opinion refuses to prevent a state agency from dis-
criminating against osteopathic physicians in favor of allopathic —
physicians in defiance of state law. In so doing, it disregards both
the plain language of the fourteenth amendment and the historic
reasons for its enactment, for the equal protection clause forbids,
and was intended to forbid, a state to purposefully and arbitrarily
deny to one class of persons the protection of a state law that it
affords to another class of persons.
The majority, in addition, accords to the conclusions of a board
of directors of a hospital district the same deference it extends to
the enactments of a state legislature. It attaches the same presump-
I-18
1634 STERN, ET AL. v. TARRANT Co. Hosp. Dist.
tive validity to the decisions of every state agency, however petty or
limited in its jurisdiction, that is extended to formal enactments of
state statutes. In so reasoning, the majority disregards findings of
fact directly contrary to the conclusion it reaches and fails to heed
the mandate of rule 52(a) of the Federal Rules of Civil Procedure.
adroitly sidestepping the rule’s applicability of labeling the facts on
review as “legislative” rather than “adjudicative.” I must, there-
fore, respectfully dissent.
I.
The fourteenth amendment forbids any state to “deny to any per-
son within its jurisdiction the equal protection of the laws.” The
amendment was not needed to ensure that the states provide equal
protection of federal laws, for the text of the original Constitution
makes federal law the supreme law of the land, “any Thing in the
Constitution or Laws of any State to the Contrary notwith-
standing.”* The equal protection clause was needed and was
intended to assure that the states afford to all persons the equal pro-
tection of their own laws. The Supreme Court certainly takes this
view, for in Monroe v. Pape, it said of section 1983:
It is abundantly clear that one reason the legislation was
passed was to afford a federal right in federal courts
because, by reason of prejudice, passion, neglect. intoler-
ance or otherwise, state laws might not be enforced and the
claims of citizens to the enjoyment of rights. privileges,
and immunities guaranteed by the Fourteenth Amend-
ment might be denied by the state agencies.”
The majority seizes upon the single word “and” in this passage
from Monroe and then asserts that federal equal protection is
denied only when a state’s failure to enforce its laws also constitutes
a denial of a right, privilege or immunity secured by the Constitu-
tion. This is an unwarranted and unprecedented reading. The four-
teenth amendment forbids the states either to “make or enforce any
law which shall abridge the privileges or immunities of citizens of
1U).S. Const. art. VI. cl. 2.
2363 U.S. 167. 180, 81 S.Ct. 473, 480. 5 L.Ed.2d 492, — (1961) (emphasis
added).
I-19
STERN, ETAL. V. TARRANT CO. Hosp. Dist. 1635
the United States” or to “deprive any person of life, liberty, or
’ property, without due process of law” or “to deny to any person
within its jurisdiction the equal protection of the laws.” The sen-
tence from Monroe v. Pape was not intended to limit the shield of
the civil rights legislation to state action that denies both equal pro-
tection and citizenship privileges and immunities. Indeed, as that
opinion continues, “It is no answer that the State has a law which
if enforced would give relief. The federal remedy is supplementary
to the state remedy... .”?
“It was not the unavailability of state remedies but the failure of
certain states to enforce the laws with an equal hand that furnished
the powerful momentum behind the ‘force bill,” ” Monroe v. Pape‘
continues. “While one main source of the evil—perhaps the leading
one—was the Ku Klux Klan,” the Court states, “the remedy cre-
ated was not a remedy against it or its members but against those
who representing a state in some capacity were unable or unwilling
to enforce a state law. . . . There was, it was said, no quarrel with the
state laws on the books. It was their lack of enforcement that was
the nub of the difficulty.”* As Senator Howard, one of the sponsors
of the amendment, stated, the purpose of the equal protection
| clause was to prohibit the states from
7 is Teas >
al Arica ag le a aha aa Nisin ht
POBGA mbls Gat ke eet
Bodishabises’?; ——-
denying to [any person] the equal protection of the laws of
the State. This [clause] abolishes all class legislation in the
. States and does away with the injustice of subjecting one
caste of persons to a code not applicable to another.®
Before adoption of the fourteenth amendment, the states were
not required by the Constitution to provide either due process or
equal protection. The Bill of Rights, Chief Justice Marshall wrote
in 1833, was “intended solely as a limitation on the exercise of
power by the government of the United States, and is not applica-
37d. at 183, 81 S.Ct. at 482, 5 L.Ed.2d at
#365 U.S. 167. 174-75, 81 S.Ct. 473, 477, 5 L.Ed.2d 492, — (1961) (emphasis
added).
57d. at 176, 81 S.Ct. at 478, 5 L.Ed.2d at — (emphasis in original).
66 C. Fairman, History of the Supreme Court of the United States—
Reconstruction and Reunion 1864-88, at 1925 (1971) (emphasis added).
I-20
1636 STERN, ET AL. v. TARRANT Co. Hosp. Dist.
ble to the legislation of the states.”’ The thirteenth amendment,
which prohibited involuntary servitude, had been adopted in | 868.
Some states responded by enacting laws that discriminated, either
explicitly or implicitly, against the former slaves, for example, by
the use of grandfather clauses. Many states also enforced appar-
ently neutral laws in a discriminatory manner: crimes that were
explicitly forbidden by state law were condoned when committed
by whites against blacks.
To combat both kinds of discrimination, Congress enacted, over
the veto of President Andrew Johnson, the first civil rights laws.
There was doubt, however, whether Congress had the power to
adopt these laws, and President Johnson had given the unconstitu-
tionality of the legislation® as one reason for his veto. “Immediately
pressing to [the fourteenth amendment] sponsors was the desire to
provide a firm constitutional basis for the already enacted civil
rights legislation.”* Congress sought, in addition, to amend “the
Constitution to place repeal beyond the accomplishment of a sim-
pie majority in a future Congress.”*®
While a major purpose of the equal protection clause was to pre-
vent discrimination against blacks, it was not, as we know, con-
fined to requiring equal treatment of the races for it assures equal
protection of the laws to all “persons.” Thus, the purpose of the
equal protection clause of the fourteenth amendment was to forbid
both kinds of unequal state action: the enactment of discriminatory
laws and the discriminatory administration or enforcement of laws
that were not themselves discriminatory.
The jurisprudence, however, has been concerned almost entirely
with discriminatory laws, that is, with determining whether laws
that are nondiscriminatory on their face are discriminatory in fact
and whether classifications expressly drawn by state laws are consti-
? Barron v. Mavor and City Council of Baltimore, 32 U.S. (7 Pet.) 243. 8 L.Ed.
672 (1833).
®See Schnapper. Affirmative Action and the Legislative Historv of the Four-
teenth Amendment, 71 Va. L. Rev. 753, 785-86 (1985).
*Congressional Research Service, Library of Congress. The Constitution of
the United States of America—-Analysis and Interpretation 1470 (1973).
1074
et td, aie lon Aebedat LD
ih TAME SMe AE Mth: hE tonal He
I-21
STERN, ET AL. v. TARRANT Co. Hosp. Dist. 1637
tutional. These cases continue to be considered writ-worthy by the
Court.
The fact that the legal contest has been concentrated in this area
shoud not, however, cause us to neglect consideration of the
amendment’s plain, but “majestically unconfined,” language. In
1880, when the history and purpose of the fourteenth amendment
were known to every justice, the Supreme Court interpreted the
equal protection clause to prohibit discriminatory application of
state law by a judge who excluded blacks from a jury because, in
part. this was “outside his authority and in direct violation of the
spirit of the State statute. That statute gave him no authority, when
selecting jurors . . . to exclude all colored men merely because they
were colored. Such an exclusion was not left within the limits of his
discretion.””
While that case involved the criminal portions of the Civil Rights
Acts and racial discrimination, its rationale was not based on the
later-developed differential scrutiny theory but on the simple thesis
that it was a denial of equal protection for a state agent to discrimi-
nate against a class of people in violation of state law. Similarly, in
dicta, a circuit court sitting in Alabama in 1871 said in United
States v. Hail:*
[T]he fourteenth amendment not only prohibits the mak-
ing or enforcing of iaws which shall abridge the privileges
of the citizen, but prohibits the states from denying to all
persons within its jurisdiction the equal protection of the
laws. Denying includes inaction as well as action, and
denying the equal protection of the laws includes the omis-
sion to protect, as well as the omission to pass laws for pro-
tection.
A state official who intentionally treats two classes of people dif-
ferently in the face of a valid state law that implies equal treatment
violates the equal protection guarantee. A century ago in Yick Wo
‘1Congressional Research Service. supra note 5, at 1471.
12x Parte Virginia. 100 U.S. 339, 348 (1880) (emphasis added).
1396 F. Cas. 79, 81 (C.C.S.D. Ala. 1871) (No. 15,282).
I-22
1638 STERN, ET AL. v. TARRANT Co. Hosp. Dist.
v. Hopkins. the Court held unconstitutional the administration of
a municipal ordinance that denied “a particular class of persons,”
Chinese laundry owners, permits that were granted to others who
were not Chinese. The case presented here involves an even more
egregious denial of equal protection—intentional discrimination in
defiance of a state law that exacts, not merely implies, equal treat-
ment. The majority opinion agrees that Texas law requires two
classes of persons, doctors holding the M.D. degree and doctors
holding the D.O. degree, to be treated alike. The majority opinion
agrees that the Tarrant County Hospital District has violated that
law and, at least inferentiaJ!y, accepts the conclusion that this dis-
crimination between the two classes of persons is purposeful. This.
I submit, is enough to make the Hospital District’s action a denial
of equal protection.
The majority opinion relies upon a lengthy quotation from
Snowden v. Hughes.** But it fails to include another statement of
the Snowden court that directly conflicts with the rationale the
majority opinion espouses. At the outset of its discussion of the
equal protection clause in Snowden, the Supreme Court said:
The unlawful administration by state officers of a state
statute fair on its face, resulting in its unequal application
to those who are entitled to be treated alike, is not a denial
of equal protection unless there is shown to be present in it
an element of intentional or purposeful discrimination.*®
“This [discrimination] may appear on the face of the action taken
with respect to a particular class or person,” the Court continued.
“or it may only be shown by extrinsic evidence showing a discrimi-
natory design to favor one individual or class over another not to
be inferred from the action itself. . . .”’” Snowden himself did not
qualify for the equal protection guarantee because he did not even
allege “a purposeful discrimination between persons or classes of
persons.”"* “So far as appears the [Illinois State] Board’s failure to
4118 U.S. 356, —. 6 S.Ct. 1064, 1073, 30 L.Ed. 220, — (1886).
15321 U.S. 1. 64 S.Ct. 397. 88 L.Ed 497 (1944).
1d at 8. 64 S.Ct. at 401. 88 L.Ed. at — (emphasis added).
171d. 64 S.Ct. at 401. 88 L.Ed at — (citations omitted).
1874 at 10. 64 S.Ct. at 402. 88 L.Ed at —. :
Wen a we clay Deadlies ee eer a 2, b
ORE ee lle etn el oe ee a ee RE ee a
lee arene tine eesti ene gine Le Oe ee
I-23
STERN, ET AL. Vv. TARRANT Co. Hosp. Dist. 1639
certify petitioner was unaffected by and unrelated to the certifica-
tion of any other nominee,”*® the Court said. Absent such purpose-
ful discrimination between classes of persons, the Illinois State
Board’s action was not a denial of equal protection of the law.
The majority’s reliance on the opinion in Oyler v. Boles, 26 4 dis-
criminatory prosecution case, is no more justified. As the majori-
ty $ quotation notes, and disregards, the Supreme Court there held
that selective law enforcement “is not in itself a federal constitu-
tional violation” unless “the selection was deliberately based upon
an unjustifiable standard such as [but, I suggest, not limited to]
race, religion, or other arbitrary classification.””
The scope and applicability of the equal protection clause are, of
course, determined by federal standards. The validity of the Texas
statute being unchallenged, discrimination in its administration
violates the federal constitution.
II.
The majority opinion starts with a bland statement of law: ratio-
nal state action does not violate the equal protection clause simply
because it violates a state anti-discrimination statute. The action of
the Tarrant County Hospital District is not so innocuous. Stating
the rule in this fashion begs the questions put by this case: whether
there is in fact a rational basis for the state action and whether a
subordinate state agency acts rationally when it defies state law and
discriminates against one class of persons while favoring another.
The state or a state agency may, without denying equal protec-
tion, make a distinction between two classes of persons if the pur-
pose of making the distinction is lawful and the distinction is
rationally related to a legitimate state purpose. Once, however, the
state adopts a statute affirmatively requiring that two classes of per-
sons be treated alike, a state agency may not decree either lawfully
or rationally that, despite what the legislature says, it is still going to
discriminate. I suggest that it is per se not only unlawful, but arbi-
1974. 64 S.Ct. at 402. 88 L.Ed. at —
20368 U.S. 448. 82 S.Ct. 501. 7 L.Ed.2d 446 (1962).
221d. at 456. 82 S.Ct. at 506. 7 L.Ed.2d at — (emphasis added).
a
I-24
1640 STERN, ET AL. v. TARRANT Co. Hosp. Dist.
trary and capricious, hence not rational, for a state agency inten-
tionally to create a discriminatory classification forbidden by a
valid state law.
___ The state did not grant Tarrant County Hospital District any dis-
cretion to consider, with respect to a physician’s qualifications, the
nature of the physician’s medical degree, allopathic or osteopathic.
This case, therefore, presents a situation distinguishable from that
typically found in “selective enforcement” cases. In such cases,
state law often accords state agencies, such as zoning or liquor
_ licensing boards, a great deal of discretion. This case is different. To
prevail on equal protection grounds, the plaintiff here need only
show that (1) he is a member of a class of persons who have been
discriminated against on the basis of their membership in that
class; (2) members of other classes, otherwise simitarly situated.
have been treated differently; and (3) the discriminatory treatment
was purposeful.
The actions of the Tarrant County Hospital District were
patently discriminatory and were taken in violation of a state stat-
ute that denied it any discretion. Its actions obviously did not fur-
ther what the state legislature had determined to be a legitimate
state purpose. The District purposefully denied to osteopaths the
protection of the law it granted to allopaths.”* In so doing it denied
plaintiffs the equal protection of state law, and this in turn consti-
tuted a violation of the constitutional guarantee of equal protec-
tion.
‘
The majority concedes the “seeming logical force”™ of this analy-
sis by what first year law students will recognize as the slippery
slope argument: to accept the thesis might lead to dread conse-
quences. Violation of a state equal rights amendment might be a
federal constitutional violation. That contention, however, por-
tends no disaster. Purposeful discrimination by a state agency
against a class of persons in order to favor another class in deliber-
ate disregard of a valid state law—even (or perhaps especially) an
equal rights law—constitutes a denial of equal protection.
22Cf Ex Parte Virginia, 100 U.S. 339. 348 (1880).
23Majority opinion. p. 1629.
I-25
STERN, ET AL. v. TARRANT Co. Hosp. Dist. 1641
Od Dap ee rer a ee
RL Ted
Deets
ANT) Coe ted petoniotade
ee ee ee ere ined
Seer ha ndentiiteie nen nioninee ayn Lee
The action of the Tarrant County Hospital District was not
merely a violation of state law that might be remedied in the state
courts. It was also a violation of the Constitution. A federal court,
district or appellate, cannot ignore its duty simply because an
alleged constitutional violation may also be contrary to state law or
because the constitutional claim may require the court “to engage
in a complex and extended analysis” of a “typically broad and
vague state law.”**
III.
The majority opinion rests on the premise that the Hospital Dis-
trict acted rationally in pursuit of a legitimate state purpose. Ratio-
nality, however, is not a purely subjective judgment. “Rational”
means “based on reason.” Reason rests on facts. The action of the
Hospital District was, as the district court found, unreasonable.
Based on testimony adduced before it, not merely on conjecture as
to possible reasons for the District’s action, the court concluded
that, for purposes of admission to practice in the hospital, no signif-
icant differences existed between the post-graduate training of allo-
paths and osteopaths.
)
As the majority opinion notes, the district court found that the
Hospital District’s different treatment of allopaths and osteopaths
was not founded on a “reasonable basis such as professional and
ethical qualifications for the common good of the public or the hos-
pital itself.”** “It is conceded,” the majority states, “that the facts
allow only the conclusion that allopathic and osteopathic training
programs have similar course requirements and content, and that
graduates face identical testing and licensing requirements.””” And
it adds, “[w]e find no fault with the district court opinion in this
respect.”** Nevertheless, the majority opinion ignores all of these
facts on the basis that, if the legislature might validly have discrimi-
nated against osteopaths, the Hospital District may do so—without
regard to the facts.
24Majority opinion, p. 1630 n.2.
25Majority opinion. p. 1630.
26 Stern v. Tarrant County Hosp. Dist. 565 F.Supp. 1440, 1454.
27Majority opinion. p. 1631.
28Majority opinion. p. 1631.
I-26
1642 STERN, ET AL. Vv. TARRANT Co. Hosp. Dist.
The majority opinion does not even mention Fed. R. Civ. P.
52(a), which requires that the facts found by a district court are to
be accepted on appeal unless clearly erroneous. Whether there is a
rational basis for treating differently two classes of persons must, |
submit, turn on the facts distinguishing these classes as shown by
the evidence. The majority seeks to justify its disregard of the evi-
dence and the fact findings by asserting that the validity of the dis-
crimination against osteopaths is to be determined by something
called “legislative” facts rather than “adjudicative” or historical
facts. But “legislative” facts, it turns out, are not facts at all. They
are, in this instance, assumptions utilized to uphold the state agen-
cy’s disregard of the facts. District courts are apparently not to take
evidence when the actions of inferior state agencies are challenged.
but are instead only to determine whether there is “any conceivable
basis for the [agency’s] implicit legislative judgment.”** The agen-
cy’s mind having been made up, neither the agency nor the court is
to be confused by the facts, and the court is to evaluate only the
agency lawyer’s post-hoc suggestion of a conceivable basis that
might have been in the agency’s mind—even if it was not.
Even when factual findings are of constitutional importance and
an appellate court is not bound by rule 52(a), the appellate court
undertakes to review the facts independently. The Supreme Court
and this court do not hypothesize but determine the facts from the
evidence.”
We have repeatedly rejected the suggestion that the actions of a
federal administrative agency might be validated on the basis of
rationalizations developed by counsel.** While we presume valid
and accord deference to determinations made by state
legislatures,** we do so at least in part because the legislature is the
highest state law-making agency, elected by a democratic process.
29Majority opinion, p. 1631.
3° Bose Corp. v. Consumers Union of U.S., Inc., — U.S. — 104 S.Ct. 1949. 80
L.Ed.2d 502 (1984); Jones v. Diamond, 636 F.2d 1364, 1370 & n.7 (Sth Cir.
1981): see also Cousins v. City Council, 466 F.2d 830. 837 (7th Cir.). cert.
denied, 409 U.S. 893 (1972).
31 See e.g., United States v. New Orleans Public Service, 723 F.2d 422. 428-29
(Sth Cir. 1984).
32 See, e.g. Home Depot. Inc. v. Guste, No. 84-3532 (Oct. 10, 1985).
I-27
STERN, ET AL. v. TARRANT CO. Hosp. Dist. 1643
SEN 6 AER Bie as ER ST iL tele NE Ie ti Be a tape Sta SN PALF SMS, Se ERs idan Gh rane Pe LS NS aN
aie — 6 sad wativcy
nha es oe
ee eee
Act PMN Dion, Pb ile SE Be te Cet
enacts statutes in a deliberative manner, and its enactments
become law only if approved by the state’s highest executive or
reenacted by a substantial majority over his veto. In New Orleans v.
Dukes,® this deference was extended to a municipal ordinance,
adopted in legislative fashion, in which the city’s objective in enact-
ing the ordinance was clearly identified. But as Justice Powell said
in dissenting from the Court’s opinion in Schweiker v. Wilson,™
“The deference to which legislative accommodation of conflicting
interests is entitled rests in part upon the principle that the political
process of our majoritarian democracy responds to the wishes of
the people.” No similar deliberations are exacted of appointed state
agencies and no similar deferential presumption of constitutional-
ity attends their actions. Deference of this extreme sort is hardly
due to the decision of a hospital board, a majority of whose mem-
bers are allopathic physicians, made without hearings or evidence,
to exclude osteopathic physicians. Instead, it seems to me, we
should view such self-serving decisions with at least some measure
of skepticism.
Justice Powell has said, “when a legislative purpose can be sug-
gested only by the ingenuity of a government lawyer litigating the
constitutionality of a statute, a reviewing court may be presented
not so much with a legislative policy as its absence.”** Moreover, at
least one fact that is undoubtedly legislative cannot be ignored: The
Texas state legislature has declared unlawful what its creature, the
Tarrant County Hospital District, has chosen to do. Even if this is
not decisive, it is a fact that must be considered in determining
both the rationality of the District’s actions and whether its actions
are to be accorded the deference given a state legislature’s deliber-
ate enactments.
The majority opinion puts the Constitution at the mercy of every
33427 U.S. 297, 304, 96 S.Ct. 2513, 2517, 49 L.Ed.2d 511, — (1976).
34450 U.S. 221, 243, 101 S.Ct. 1074, 1087, 67 L.Ed.2d 186, — (1981): cf.
Regents of the University of California v. Bakke, 438 U.S. 265, — 98 S.Ct.
2733. 2758. 57 L.Ed.2d 750. — (1978); see also Kramer v. Union Free School
Dist., No. 15. 395 U.S. 621. 639, 89 $.Ct. 1886, 1895-96, 23 L.Ed.2d 583, —
(1969) (Steward. J. dissenting).
33 Schweiker v. Wilson, 450 U.S. 221, 243, 101 S.Ct. 1074, 1087, 67 L.Ed.24
186. — (1981).
I-28
1644 STERN, ETAL. Vv. TARRANT Co. Hosp. Dist.
petty state agency if only its lawyers can submit a thesis, unsup-
ported by factual evidence, that might support constitutionality.
The opinion cannot be supported by the Supreme Court decision in
Haymon v. City of Galveston,** for evidence of the kind here pres-
ented was not in the record before that Court.
The opinion in Haymon, moreover, rested at least in part on the
conclusion that the action of the Galveston Hospital Board in dis-
criminating against osteopaths did not violate the Texas constitu-
tional provision that forbids any preference to “be given by law to
any schools of medicine.””” The Court found that the state constitu-
tional limitation was directed only to the qualifications of those to
be admitted to medical practice in the state and did not limit con-
sideration of medical practitioners’ qualifications to practice in a
state hospital.™
Since Haymon significant changes have occurred in the educa-
tion, training, and licensing of osteopaths and in Texas law. That
state action was not arbitrary under facts existing a half century ago
does not make it rational today. The decision of a panel of this
court in Berman v. Florida Medical Center, Inc.** is no more confin-
ing, for that case dealt with a private hospital and did not involve
State action.
IN.
The fourteenth amendment forbids the state and its agencies to
discriminate against any class of persons. It is a bulwark against
prejudice, against state action that condemns without rational
basis. The clause was adopted to assure not only that states enact
nondiscriminatory laws but also that they administer state law
equally and fairly. The majority opinion refuses to apply the literal
mandate of the Constitution and ignores the history that led to its
enactment. It condones the bigotry of an allopathic-dominated
state hospital district that refuses to be bothered by either the state
law, the federal constitution, or the facts.
36273 U.S. 414, 47 S.Ct. 363, 71 L.Ed 714 (1927
37Tex. Const. art. 16 § 31.
38273 U.S. at 418. 47 S.Ct. at 364, 71 L.Ed. at
39600 F.2d 466 (Sth Cir. 1979).
- eer ee
II-1
UNITED STATES CouRT OF APPEALS
For THE FIFTH CIRCUIT
No. 83-1638
D. C. Docket No. CA-4-80-281-E
PauL A. STERN, ET AL.,
Plaintiffs-Appellees,
versus
TARRANT COUNTY HOSPITAL DISTRICT,
Defendant-Appellant,
versus
GEORGE J. LUIBEL,
Defendant-A ppellee.
Appeal from the United States District
Court for the Northern District of Texas
Before CLARK, Chief Judge, GOLDBERG, GEE, RUBIN,
REAVLEY, PoLitz, RANDALL, TATE, JOHNSON, WIL-
LIAMS, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS,
HILL and JONES, Circuit Judges.
I]-2
JUDGMENT ON REHEARING EN BANC.
This cause came on to be heard on rehearing en bane with
oral argument.
ON CONSIDERATION WHEREOF, It is now here ordered and
adjudged by this Court that the judgment of the District Court
in this cause is reversed, and the cause is remanded to the
District Court for further proceedings in accordance with the
opinion of this Court.
IT is FURTHER ORDERED that each party bears its own costs
on appeal.
RUBIN, with whom CuaRk, Chief Judge, Pouitz, TATE and
JOHNSON, Circuit Judges, join dissenting.
ISSUED AS MANDATE:
ee ee denis
—
III-1
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 83-1638
PAUL A. STERN, ET AL.,
Plaintiffs-Appellees,
versus
TARRANT COUNTY HOSPITAL DISTRICT,
Defendant-Appellant,
versus
GEORGE J. LUIBEL,
Defendant-Appellee.
Appeal from the United States District
Court for the Northern District of Texas
ON PETITION FOR REHEARING
(January 14, 1986)
Before CLARK, Chief Judge, GOLDBERG, GEE, RUBIN,
REAVLEY, POLITZ, RANDALL, TATE, JOHNSON, WIL-
LIAMS, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS,
HILL, and JONES, Circuit Judges.
PER CURIAM:
IT 18s ORDERED that the petition for rehearing filed in the
above entitled and numbered cause be and the same is hereby
denied.
ENTERED FOR THE COURT:
United States Circuit Judge
Meera
IV-1
PAUL A. STERN, ET AL.,
Plaintiffs-Appellees,
We
TARRANT CouNTYy HOSPITAL DISTRICT,
Defendant-Appellant,
Vv.
GEORGE J. LUIBEL,
Defendant-Appellee.
No. 83-1638.
United States Court of Appeals,
Fifth Circuit.
March 18, 1985.
Five licensed physicians, each of whom had at least two
years of postdoctoral training in a program accredited by the
American Osteopathic Association, challenged constitutionally
of a requirement imposed by a state-agency hospital that, to
practice in the hospital, a physician must have completed two
years of postdoctoral training in a program accredited by the
Accreditation Committee on Graduate Medical Education,
which accredits only programs in institutions aligned with
allopathic medicine. The United States District Court for the
Northern District of Texas, Eldon B. Mahon, J., 565 F.Supp.
1440, entered judgment on finding that hospital rule unconsti-
tutionally denied osteopathic physicians equal protection of the
laws. An appeal was taken. The Court of Appeals, Alvin B.
Rubin, Circuit Judge, held that hospital’s rule unconstitution-
ally denied osteopathic physicians equal protection of the laws.
Affirmed.
Clark, Chief Judge, concurred and filed an opinion.
Goldberg, Circuit Judge, dissented and filed an opinion.
IV-2
1. Constitutional Law Key 211 (3)
Equal protection of the law requires not only that statutes be
equal on their face but also that they be executed so as not to
deny equality. U.S.C.A. Const. Amend. 14.
2. Constitutional Law Key 213 (2)
Fact that discriminatory action is taken by a state agency
other than legisiature does not permit it to escape Fourteenth
Amendment for state action, of the kind that falls within
prescription of equal protection clause of the Fourteenth
Amendment, may be brought about through state’s administra-
tive and regulatory agencies just as through the legislature.
U.S.C.A. Const. Amend. 14.
3. Constitutional Law Key 238 (1)
Hospitals Key 6
Requirement imposed by a state-agency hospital that, to
practice in hospital, a physician must have completed two years
of postdoctoral training in a program accredited by the Ac-
creditation Committee on Graduate Medical Education, which
accredits only programs in institutions aligned with allopathic
medicine, unconstitutionally denied osteopathic physicians
who had at least two years of postdoctoral training in a
program accredited by the American Osteopathic Association
equal protection of the laws in view of Texas statute forbidding
state agencies to differentiate among physicians solely on basis
of their academic medical degrees. U.S.C.A. Const. Amend. 14;
Vernon’s Ann.Texas Civ.St.art. 4495b.
4. Constitutional Law Key 82(1)
Federal constitutional protection may turn on state-created
rights.
IV-3
5. Constitutional Law Key 277 (2)
Whether a state employee who has been discharged without
notice and hearing has been denied property without due
process depends on whether he had state-created rights that
created a cognizable property interest in his continued employ-
ment. U.S.C.A. Const.Amends. 5, 14.
6. Constitutional Law Key 278.5 (5)
When state creates a school system, it creates an entitlement
in students, giving them a right to attend unless that right is
terminated with due process of law. U.S.C.A.
Const.Amends. 5, 14.
Appeal from the United States District Court for the
Northern District of Texas.
Before CLARK, Chief Judge, GOLDBERG, and RUBIN,
Cireuit Judges.
\
ALVIN B. RUBIN, Circuit Judge:
A Texas statute forbids state agencies to differentiate among
phvsicians solely on the basis of their academic medical de-
grees.’ Five licensed physicians, each of whom has had at least
two years of post-doctoral training in a program accredited by
the American Osteopathic Association, challenge the constitu-
tionality of a requirement imposed by a state-agency hospital
that, to practice in the bospital, a physician must have com-
pleted two years of post-doctoral training in a program accred-
ited by the Accreditation Committee on Graduate Medical
Education, which accredits only programs in institutions
aligned with allopathic medicine. The district court, 565
F.Supp. 1440, held that the hospital rule unconstitutionally
denied osteopathic physicians equal protection of the laws, in
1 Texas Medical Practice Act, Tex.Rev.Civ.Stat.Ann. art. 4495b
(Vernon Supp.1984).
IV-4
violation of the fourteenth amendment. We affirm the judgment
on the basis that a state agency’s discriminatory action when
state law commands equality is a patent denial of equal
protection to those denied equality.
I.
John Peter Smith Hospital is operated by the Tarrant
County Hospital District, a Texas state agency. Before 1974,
the hospital bylaws permitted a physician to be a member of its
staff only if he was a member of the Tarrant County Medical
Society, an association which admitted only allopaths. In 1974,
this was changed to require graduation with a degree of Doctor
of Medicine (M.D.) from a school accredited by the Council on
Medica] Education of the American Medical Association. The
Council accredits only allopathic schools and only allopathic
schools award the M.D. degree; osteopathic schoo)s award the
degree Doctor of Osteopathy (D.0.). The requirements for
admission to the hospital staff were again changed in 1979. The
requirement of an M.D. degree was deleted, and instead, staff
members were required to be licensed by the state and to have
two years of post-doctoral training in a program accredited by
the Accreditation Committee.
The predecessor to the Accreditation Committee’ was cre-
ated in 1970, and none of the graduate training programs that
existed before that time were accredited by it. To avoid dis-
qualifying physicians who received training before 1970, the
bylaws of the hospital were rewritten in 1980 and 1981 to
require post-doctoral training in a program accredited by the
Committee only for initial appointment to the staff. Physicians
* The accrediting group was originally the Liason Committee on
Graduate Medica] Education. This was changed in 1981 to the
Accreditation Committee.
IV-5
already on the staff were thus automatically exempted from the
requirement.
The parties stipulated that the sole reason the plaintiffs were
denied staff privileges was because they had trained in osteo-
pathic-institution programs. There are presently four osteo-
pathic physicians on the staff of the hospital. Each of them,
however, received post-doctoral training while in military ser-
vice at hospitals approved by the predecessor to the Accredita-
tion Committee.
In 1981, the Texas state legislature enacted the Medical
Practice Act and declared its intention “to prohibit differentia-
tion solely on the basis of the academic medical degree held
by” a licensed physician in determining medical staff appoint-
ments.’ The Act recognizes that all physicians are examined by
the same board, pass the same examination, and meet the same
standards “irrespective of academic medical degree.’ In order
to be licensed under the Act, a physician must have graduated
from an approved medical school, but both schools accredited
by the Accreditation Committee and those accredited by the
American Osteopathic Association are approved.
In findings not challenged on appeal, the district court found
that presently there is no substantial difference between ac-
credited medical schools conferring the M.D. degree and those
that confer the D.O. degree except that students attending
osteopathic schools are required to take several courses on
manipulative therapy. The court described as non-substantial
the philosophical differences between allopathy and
osteopathy.
* Tex.Rev.Civ.Stat.Ann. art. 4495b, Subchapter A, § 1.02(9) (Vernon
Supp.1984).
* Id.
IV-6
Until recently, osteopathic physicians were unable to obtain
training in programs approved by the Accreditation Committee
on Graduate Medical Education. Today, as we understand the
record, they are able to do so in various governmental pro-
grams and certain other specialized programs.
II.
The parties raise a number of issues, including whether it is
reasonable for a héspital to treat allopathic and osteopathic
physicians differently. Because of the later changes in medical
education, the hospital invites us to follow, and the osteopathic
physicians urge us to disregard, the Supreme Court’s 1927
decision in Hayman v. City of Galveston.’ The Court there held
that a hospital’s decision to exclude osteopaths was neither
arbitrary nor unreasonable because it was based on the neces-
sity of choosing between various methods of treatment. In the
same opposing fashion, the parties also urge us to affirm or to
reconsider and reject the statements in our opinion in Berman
v. Florida Medical Center, Inc.,° an action dismissed because it
involved a private hospital, but in which we said that a public
hospital may deny staff privileges to a physician simply be-
cause he is an osteopathic physician.’
[1,2] We find it unnecessary to reach so far. Equal protec-
tion of the law requires not only that statutes be equal on their
face but also that they be executed so as not to deny equality.”
5 273 U.S. 414, 47 S.Ct. 363, 71 L.Ed. 714 (1927).
® 600 F.2d 466 (5th Cir.1979).
” But see Dooley v. Barberton Citizen’s Hospital, 11 Ohio St.3d 216,
465 N.E.2d 58 (1984) (hospital may not adopt standards for staff
membership that are not reasonably related to accepted measures
of skill, education and competence).
* Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220
(1886).
IV-7
“A lew that is administered so as to unjustly discriminate
between persons similarly situated may deny equal protec-
tion.”® There is even more striking administrative discrimina-
tion when a state law that ordains equal treatment is applied so
as to deny that equality the statute requires. The fact that the
discriminatory action is taken by a state agency other than the
legislature does not permit it to escape the fourteenth amend-
ment for “state action, of the kind that falls within the
prescription of the Equal Protection Clause of the Fourteenth
Amendment, may be brought about through the state’s admin-
istrative and regulatory agencies just as through the
legislature.””°
[3] The Texas Medical Practice act expressly mandates that
Texas institutions accord equal treatment “to all who desire to
practice medicine, irrespective of academic medical degree.”
Thus, the Texas legislature has determined that, for purposes
of determining medical staff appointments, osteopathic and
allopathic physicians are “similarly situated.” Because the
Tarrant County Hospital District’s bylaws discriminate be-
tween persons similarly situated, those osteopathic physicians
who are now excluded from admission to the hospital staff
solely because their training was in a program approved by the
American Osteopathic Association rather than by the Accredi-
tation Committee have been denied the equality afforded them
by Texas law.
* Guillory v. County of Orange, 731 F.2d 1379, 1383 (9th Cir.1984);
Kuzinich v. County of Santa Clara, 689 F.2d 1345, 1349 (9th
Cir.1982); Zeigler v. Jackson, 638 F.2d 776, 779 (5th Cir.1981).
© Robinson v. State of Florida, 378 U.S. 153, 156, 84 S.Ct. 1693, 1695,
12 L.Ed.2d 771 (1964); see Columbus Board of Education v. Penick,
443 U.S. 449, 457 fn. 5, 99 S.Ct. 2941, 2946 fn. 5, 61 L.Ed.2d 666
(1979).
" Tex.Rev.Civ.Stat.Ann. art. 4495b, Subchapter A, § 1.02(9)
(Vernon Supp.1984).
IV-8
[4-6] Federal constitutional protection may turn on state-
created rights. Thus, whether a state employee who has been
discharged without notice and hearing has been denied prop-
erty without due process depends on whether he had state-
created rights that created a cognizable property interest in
his continued employment.” Similarly, when the state creates a
school system, it creates an entitlement in students, giving
them a right to attend unless that right is terminated with due
process of law.”®
Because the state itself has required its agencies to treat
allopathy and osteopathy alike, it is not necessary for us to
consider whether the state might, if it chose to do so, find a
rational basis for distinguishing between allopathic and osteo-
pathic physicians generally. The Texas Medical Practice Act
mandates that Texas institutions must accord equal treatment
to professionals educated in either philosophy.
The hospital contends that, because the Act was adopted in
1981, it is not applicable in this case which concerns a standard
adopted in 1979. This disregards both the nature of this action,
a suit to affect future, instead of past, actions, and the rule
stated by the Supreme Court in Bradley v. School Board of the
City of Richmond:* “{A] court is to apply the law in effect at
the time it renders its decision, unless doing so would result in
2 Board of Regents of State Colleges v. Roth, 408 U.S. 564, 578, 92
S.Ct. 2701, 2709-10, 33 L.Ed.2d 548 (1972). See also Logan v.
Zimmerman Brush Co., 455 U.S. 422, 430-31, 102 S.Ct. 1148, 1155,
71 L.Ed.2d 265 (1982); Jones v. Orleans Parish School Board, 679
F.2d 32, 36 (5th Cir.1982), cert. denied, 461 U.S. 951, 103 S.Ct.
2420, 77 L.Ed.2d 1310 (1983).
8 Goss v. Lopez, 419 U.S. 565, 573-74, 95 S.Ct. 729, 735-36, 42
L.Ed.2d 725 (1975); Debra P. v. Turlington, 644 F.2d 397, 403-04
(5th Cir.1981).
4 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974).
IV-9
manifest injustice or there is statutory direction or legislative
history to the contrary.’”””
The hospital makes the sophistic argument that its admis-
sion requirement does not turn on the physician’s academic
medical degree, but on the nature of the institution at which he
received his post-doctoral training. Those physicians who were
excluded by the requirement, however, were prevented from
receiving training in a program acceptable to the Accreditation
Committee by the fact that they had D.O. degrees, and they
were able to receive equivalent training only in an osteopathic-
institution program. The nature of their academic medical
degree, therefore, is the differentiating factor.
For these reasons, the judgment is affirmed insofar as it
applies to osteopathic physicians who received their post-
doctoral] training before they could be admitted to-a program
accredited by the Accreditation Committee. Because the ques-
tion was not presented below and not urged to us on appeal, we
express no opinion on the constitutionality of the hospital rule
as applied to osteopaths who now have, or who have had in the
past, the opportunity, equally with allopaths, to attend a
training program accredited by the Accreditation Committee,
but choose not to exercise that option.
The district court judgment is, therefore, AFFIRMED.
CLARK, Chief Judge, concurring:
I concur without reservation in what Judge Rubin writes. I
add these comments because I regard the dissent’s reliance on
McDowell v. Texas as misplaced. 465 F.2d 1342 (5th Cir.1971),
© Id. at 711, 94 S.Ct. at 2016, 40 L.Ed.2d 476 (1979). The Fifth
Cireuit, of course, follows the Supreme Court’s enunciation. See
Petrou Fisheries, Inc. v. I.C.C., 727 F.2d 542, 545 (5th Cir. 1984);
Sandefur v. Cherry, 718 F.2d 682, 684 (5th Cir.1983).
IV-10
aff'd on rehearing en banc, 465 F.2d 1349 (5th Cir.1972), cert.
denied, 410 U.S. 943, 93 S.Ct. 1371, 35 L.Ed.2d 610 (1973).
The essential distinction between today’s case and McDowell
lies in the nature of the right affected. Dr. MecDowell’s claim
was based on his dismissal from a non-tenured position as
administrator of a Texas institution for retarded children. He
asserted that his dismissal resulted from his refusal to violate
state law by admitting to his institution a child not entitled to
admission. The proof established that Dr. McDowell’s dis-
charge caused him no stigma nor injury to his reputation.
Indeed, he immediately received many offers for employment
and promptly accepted one at an increase in pay. Thus, we held
that no federal constitutional right was asserted in the dis-
charge. The only violation of state law involved merely fur-
nished the occasion for the state to act to terminate his at-will
employment. Both Perry v. Sindermann, 408 U.S. 593, 92 S.Ct.
2694, 33 L.Ed.2d 570 (1972), and Board of Regents v. Roth, 408
U.S. 594, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), intervened
between the McDowell panel and en banc opinions to furnish
confirmation satisfactory to a unanimous court that the prop-
erty right asserted by Dr. McDowell was not of a nature which
was cognizable under the fourteenth amendment.
Dr. Stern’s case is altogether different. The law of the State
of Texas expressly requires that his medical degree be ac-
cepted as the equivalent of that possessed by an allopathic
doctor. But, the John Peter Smith Hospital refuses to accord
him the concomitant right to staff privileges which Texas has
granted.
This arbitrary state action depriving Dr. Stern of the right
to practice his profession in a state hospital deprives him of a
property right clearly within the protection of the fourteenth
amendment. In Roth, the Supreme Court explained the attrib-
utes of “property” interests which come within the ambit of the
Federal Constitution in these terms:
IV-11
To have a property interest in a benefit, a person clearly
must have more than an abstract need or desire for it. He
must have more than a unilateral expectation of it. He must,
instead, have a legitimate claim of entitlement to it. It is a
purpose of the ancient institution of property to protect
those claims upon which people rely in their daily lives,
reliance that must not be arbitrarily undermined... .
Property interests, of course, are not created by the
Constitution. Rather they are created and their dimensions
are defined by existing rules or understandings that stem
from an independent source such as state law — rules or
understanding that secure certain benefits and that support
claims of entitlement to those benefits... .”
408 U.S. at 577, 92 S.Ct. at 2709.
In Logan v. Zimmerman Brush Co., 455 U.S. 422, 430, 102
S.Ct. 1148, 1155, 71 L.Ed.2d 265 (1982), the Court further
stated:
The hallmark of property, the Court has emphasized, is an
individual entitlement grounded in state law, which cannot
be removed except “for cause.” ... Once that characteristic
is found, the types of interests protected as “property” are
varied and, as often as not, intangible, relating ‘to the whole
domain of social and economic fact.” (Citations omitted.)
Neither Hayman nor Berman viewed hospital staff privileges
as beyond the reach of federal constitutional protection be-
cause the nature of staff privileges was unimportant. Rather,
the analysis in those cases turned on the rationality of the
state’s choice to prefer allopathy over osteopathy. Each found
that the state action in distinguishing the two practices bore a
rational relationship to a valid state objective. Because this
was so, the action denying equal rights to the two schools of
medicine implicated no constitutional values. Texas has de-
cided that issue differently. This difference, having been recog-
IV-12
nized, invests Dr. Stern with an important right to equal
treatment with allopathic physicians that cannot be arbitrarily
denied by the John Peter Smith Hospital without breaching
the fourteenth amendment.
GOLDBERG, Circuit Judge, dissenting:
This is not a happy dissent. While personally I do not
condone discrimination against osteopaths, I believe that we
are bound by Hayman v. City of Galveston, 273 U.S. 414, 47
S.Ct. 363, 71 L.Ed. 714 (1927), and Berman v. Florida Medical
Center, 600 F.2d 466 (5th Cir.1979), which held that hospitals
could discriminate against osteopaths in admitting physicians
to their staffs. Because, in my view, Hayman and Berman
represent the current law, they must be applied. Our job as
judges, unlike that of doctors, does not include offering second
opinions.
In an attempt to bypass Hayman and Berman, the majority
argues that the hospital’s bylaws violates Texas law, and that
violations of state law by a state entity constitute per se
violations of federal equal protection. I believe that this repre-
sents a novel and unwarranted theory of equal protection.
Although, as judges, we cannot offer second opinions, we can
offer dissenting opinions. I dissent.
A
An analysis of the hospital’s regulation must begin with
Hayman v. City of Galveston, 273 U.S. 414, 47 S.Ct. 363, 71
L.Ed. 714 (1927). In Hayman, the Supreme Court upheld a
hospital regulation that excluded osteopathic physicians from
the hospital staff on the ground that the hospital’s classifica-
tion was “not arbitrary or unreasonable on its face.” Jd. at 417,
47 S.Ct. at 364. In reaching this result, Justice Stone, writing
for the Court, stated:
IV-13
We cannot say that a regulation excluding from the
conduct of a hospital the devotees of some of the numerous
systems or methods of treating diseases authorized to
practice in Texas, is unreasonable or arbitrary. In the
management of a hospital, ... some choice in methods of
treatment would seem inevitable, and a selection based
upon a classification having some basis in the exercise of
the judgment of the state board whose action is challenged
is not a denial of the equal protection of the laws.
Id. Although Hayman was decided before the doctrinal distinc-
tion between “strict scrutiny” and “rationality review” was
clearly drawn,’ Hayman stands for the dual propositions that
(1) osteopathic physicians are not a suspect class, and (2)
classifications based upon a physician’s medical degree —
including whether that degree is osteopathic or allopathic —
are rational.
The plaintiffs contend that Hayman is no longer good law.
because of the advances in osteopathic medicine since 1927,
when Hayman was decided. They argue that while it may have
been rational to discriminate against osteopaths in 1927, it is
no longer rational to do so. This argument raises difficult
jurisprudential questions concerning whether we, as a court of
appeals, can pick and choose among Supreme Court precedents
on the basis of which ones we think remain legitimate. Fortu-
nately, we need not decide these questions in the present case,
since we have recently reiterated the principles underlying
’ Although the Supreme court has always implicitly applied different
levels of scrutiny to different kinds of legislative classifications,
compare Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 31 S.Ct.
337, 55 L.Ed. 369 (1911) (environmental regulation) with Strauder
v. West Virginia, 100 U.S. (10 Otto) 303, 25 L.Ed. 664 (1880)
(race), the “two-tier” approach to equal protection first received
explicit expression in United States V. Carolene Prods. Co., 304 U.S.
144, 152 n. 4, 58 S.Ct. 778, 783 n. 4, 82 L.Ed. 1234 (1938).
IV-14
Hayman in Berman v. Florida Medical Center, 600 F.2d 466
(5th Cir. 1979). In Berman, we gave a clean bill of health to a
hospital regulation precisely like the one in question here,
which required applicants for staff appointments to have
served in an A.M.A.-approved residency program. Id. at 468.
As we stated:
That [the plaintiffs] may have received equivalent training
of another sort does not invalidate the hospital’s require-
ment, which is a reasonable one. Doubtless there are mid-
wives in the Fort Lauderdale area quite capable of handling
normal childbirths, but this circumstance would scarcely
render the requirement of a medical license for practice in
this hospital unconstitutional or invalid. Having specified a
reasonable means of access to its staff privileges, defendant
is not required to shell the woods, canvassing one by one
other modes that might or might not be its equivalent.
Id.” I believe that we are constrained under both Hayman and
Berman from holding that the hospital’s discrimination against
osteopaths violates the equal protection clause.
* The plaintiffs argue that Berman is not controlling since it was
decided on state action grounds and since therefore the statements
in Berman regarding the rationality of the hospital’s regulation are
merely dicta. I believe, however, that this represents a misreading of
Berman. In Berman, the court discussed at comparative length the
permissibility under the equal protection clause of the hospital’s
regulation; only in the last paragraph did the court reach the state
action question, stating, “Finally, if more be required, we concur in
the trial court’s conclusion .. . that the state statute regarding
hospital licensing does not sufficiently implicate Florida in defen-
dant’s staff-admission policies to constitute ‘state action.’” Id.
(emphasis added). Since, to me, this seems an odd way to state the
ratio decidendi of a case, I conclude that Berman was decided on
equal protection as well as on state action grounds.
IV-15
B
Implicitly recognizing the force of Hayman and Berman, the
majority attempts to sidestep them by focusing on the Texas
statute prohibiting discrimination against osteopaths. The ma-
jority does not claim that discrimination against osteopaths
itself offends against equal protection — that avenue is fore-
closed by Hayman and Berman. Instead, the majority uses
state law to bootstrap a federal equal protection violation.
In my view, this is a novel theory of equal protection, without
support in our precedents. Previously, I had thought that a
violation of state law was a violation of state law; I had not
realized that it could also give rise to a violation of federal
equal protection. Although I believe that I have always been a
stout and ardent defender of equal protection, I fail to see how
state law can provide the basis of a federal equal protection
claim.
The equal protection clause embodies a general requirement
that equals be treated equally. In itself, this requirement of
equal treatment is a purely formal proposition, without any
substantive content, since it does not tell us what people are
equal.” As interpreted over the years, however, the equal
protection clause is not a mere formalistic requirement, rather,
it imposes certain substantive notions of equality by forbidding
government from classifying among people in ce-tain
ways’ — for example, on the basis of race or national origin.
* “Equals or unequals, yes, but equals or unequals in what.” Aristotle,
Politics. Bk. III, § 12, 1282 22; see also Benn, Equality, Moral and
Social, in 3 Encyclopedia of Philosophy 38 (P. Edwards ed. 1967);
A. France, quoted in Aphorisms 208 (W. Auden & L. Kronenberger
eds. 1962) (“The law, in its majestic equality, forbids the rich as
well as the poor to sleep under bridges.”’).
“See Karst, Foreward: Equal Citizenship Under the Fourteenth
Amendment, 91 Harv.L.Rev. 1, 4 (1977) (“Equality, as an abstrac-
tion, may be value-neutral, but the fourteenth amendment is not.”’);
IV-16
For purposes of the equal protection clause, people of different
races and different national origins are equal; therefore race
and national orgin as such cannot be the basis of government
classifications.
~ In Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed.
220 (1886), the Supreme Court extended the scope of the equal
protection clause to include classifications based on adminis-
trative as well as legislative action. If government classifies
among people in an impermissible way in the execution of its
laws, then this violates equal protection just as much as would
a similar statutory classification. Contrary to the majority's
assertion, however, Yick Wo did not change the underlying
basis of equal protection analysis: does the state’s classifica-
tion, whether legislative or administrative, violate federal
norms of equality? In Yick Wo, the Supreme Court held that
the state’s classification did violate federal norms, since it was
based on national origin. As the Court stated, “The fact of...
discrimination [against Chinese people] is admitted. No rea-
son for it is shown, and the conclusion cannot be resisted that
no reason for it exists except hostility to the race and national-
ity to which the petitioners belong, and which, in the eyes of the
law, is not justified.” Id. at 374, 6 S.Ct. at 1073.°
Perry, Modern Equal Protection: A Conceptualization and Appraisal,
79 Colum.L.Rev. 1023, 1031 (1979) (the basic principle of equal
protection is that “there are some traits and factors — of which race
is the paradigmatic example — by virtue of which no person ought
to be deemed morally inferior to any other person”).
°The other cases cited by the majority stand for the same proposi-
tion, namely that state administrative as well as legislative action
must comply with federal norms of equality. See Columbus Bd. of
Educ. v. Penick, 443 U.S. 449, 457 n. 5, 99 S.Ct. 2941, 2946 n. 5, 61
L.Ed.2d 666 (1979) (racial segregation); Robinson v. Florida, 378
U.S. 153, 156, 84 S.CT. 1693, 1695, 12 L.Ed.2d 771 (1964) (racial
discrimination).
IV-17
The majority enunciates a quite different model of protection
analysis. Rather than analyzing whether the state administra-
tive classification violates federal norms of equality, the major-
ity focuses on whether the state administrative classification
violates stute norms of equality. According to the majority, if a
state statute classifies certain groups of people as “equal,”
then federal equal protection mandates that these “equals” be
treated equally in the administration of the law.° This is a quite
different principal from the one enunciated in Yick Wo.Indeed,
in Yick Wo, no violation of state norms of equality was in-
volved: state law permitted the challenged discrimination by
giving the state administrative body discretion in granting
exemptions from the statute.’
°In his concurrence, Chief Judge Clark suggests an alternative
theory of equal protection as the ground for the majority’s decision.
In his view, state law defines not the classes that are deemed to be
equal, but rather the rights (including the right to employment)
that are entitled to heightened protection under the fundamental
rights strand of equal protection analysis. While this theory is cast
in different doctrinal terms than the majority’s, to me it seems just
as novel and unwarranted. The procedural due process cases, as
both the majority and the Chief Judge note, have held that state law
can define property rights that are entitled to certain procedural
protections under the due process clause of the fourteenth amend-
ment. I am unaware, however, of any cases that have held that these
state-created property rights give rise to heightened scrutiny under
the fundamental rights strand of equal protection analysis. Nor am
I sure what form such heightened scrutiny would take. My brother
Clark appears to say that, once a state has granted a certain
property right, then that right cannot be infringed, regardless of
what procedures are used. See infra note 7. I agree that this may be
true as a matter of state law, but unless we want to constitutionalize
much of state law, I fail to see how this is true as a matter of federal
equal protection.
" The majority not only departs from trad,’ al equal protection
analysis by looking to state rather than federa: law as the source of
its substantive norms of equal protection; it also eschews the
IV-18
All of the cases cited by the majority in support of its theory,
see slip op., at 3154 n. 9, 3154 n. 12, at -—— n. 9, —— n.._ 12,
either are due process, not equal protection, cases or are
concerned with classifications that offend federal, not state,
norms of equality. Kuzinich v. County of Santa Clara, 689 F.2d
1345 (9th Cir.1982), for example, involved a claim that the
state classification infringed on a fundamental federal right,
free speech. Indeed, the court specifically stated, “appellant
must show that his selection was based on an impermissible
ground such as race, religion or his exercise of his first
amendment right to free speech.” Jd, at 1349 (quoting United
States v. Scott, 521 F.2d 1188, 1195 (9th Cir.1975) ). Similarly,
both Guillory v. County of Orange, 731 F.2d 1379 (9th
Cir.1984), and Zeigler v. Jackson, 638 F.2d 776 (5th Cir. 1981),
involved claims that state administrative action lacked any
rational basis. See Guillory, 731 F.2d at 1383 (plaintiffs
claimed that they were treated differently for “no rational
reason’’); Zeigler, 638 F.2d at 779 (state administrative body
“failed to offer a rational justification for the differential
treatment accorded to [plaintiff]”). All of these cases fit
comfortably within traditional equal protection analysis and do
not stand for the majority’s novel theory.”
traditional standards of review used in equal protection analysis.
Rather than applying either strict scrutiny or rationality review to
the hospital’s regulation, the majority implicitly holds that the
hospital’s regulation is a per se violation of federal equal protection.
Thus, the majority paradoxically applies an even stricter standard
of review when examining state administration of a state law than it
would when examining an alleged racial classification.
The majority also finds precedent for its position in a number of
due process cases where courts have looked to state law to define
federally-protected rights. In these due process cases, however,
state-defined property rights merely triggered federal due process
analysis; state law did not define the procedures that were due.
Consequently, in these cases, unlike the present one, the federal
cause of action was not parasitic on the existence of a state-law
SORE ER ee MEN Bh Bl EN a aM All or Li
IV-19
While few cases have squarely addressed the issue, what
little authority I have found rejects the principle announced by
the majority today. For example, in Snowden v. Hughes, 321
U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1944), Chief Justice Stone,
writing for the Court, stated, “[N]ot every denial of a right
conferred by state law involves a denial of the equal protection
of the laws, even though the denial of the right to one person
may operate to confer it on another.” 7d. at 8, 64 S.Ct. at 401.
Chief Justice Stone went on to note that the action of a state
board “is subject to constitutional infirmity to the same but no
greater extent than if the action were taken by the state
legislature. Its legality under the state statute can neither add to
nor subtract from its constitutional validity.” Id. at 11, 64 S.Ct.
at 402 (emphasis added).
Similarly, in McDowell v. Texas, 465 F.2d 1342, aff’d on
rehearing en banc, 465 F.2d 1349 (5th Cir.1971), cert. denied,
410 U.S. 943, 93 S.Ct. 1371, 35 L.Ed.2d 610 (1973), we rejected
a claim that a violation of state law by a state board gave rise
to a denial of federal substantive due process. Jd. at 1345-46.
What we said there in regard to substantive due process is
equally applicable here:°
violation. Indeed, in both of the Supreme Court cases cited by the
majority, no violation of state law was involved. See Logan v.
Zimmerman Brush Co., 455 U.S. 422, 427-28, 102 S.Ct. 1148, 1153,
71 L.Ed.2d 265 (1982) (state supreme court had ruled that there
was no violation of state law); Board of Regents v. Roth, 408 U.S.
564, 567, 92 S.Ct. 2701, 2704, 33 L.Ed.2d 548 (1972) (state law left
employment decisions to unfettered discretion of university offi-
cials). Thus, exercise of federal jurisdiction was neither superfiu-
ous nor potentially intrusive on matters of primary interest to the
states. Instead, it was necessary to protect federally-defined proce-
dural rights.
Chief Judge Clark attempts to distinguish McDowell on the ground
that, in McDowell, no claim was made that a violation of state law
directly gave rise to a violation of the fourteenth amendment.
According to Chief Judge Clark, the challenged firing did not itself
IV-20
Cases of this genre constitute uniquely State causes of
action. As such they are peculiarly within the realm of State
courts. “A right to have state (or city) laws obeyed is a
state, not a federal right.” .... Even though it is patent that
the amorphous and protean contours of substantive due
process under the Fourteenth Amendment extend to all
citizens in all sorts of conditions and circumstances, it is
equally axiomatic that federal jurisdiction under § 1343(3)
and 42 U.S.C.A. § 1983 cannot be extended to that purely
local squabble by the mere invocation of the generalized
protection which these words of the amendment confer.
The Constitution’s deeply embedded concepts of federalism
demand that we refuse a procedure of statutory construction
that would put such a literal gloss on the words of $§ 1343
and 1983 as would kill the spirit the founding fathers
violate state law, since the plaintiff's continued employment was at
the will of the state. Because the plaintiff did not have a state-law
property right to continued employment, there clearly was no.
violation of the fourteenth amendment. A violation of state law was
only implicated to the extent that an earlier violation of state law
provided the pretext for the firing of the plaintiff by the state.
Therefore, according to the Chief Judge, we were not presented in
McDowell with the question that we face here.
In my view, this represents a considerable gloss on McDowell.
Although the opinion did not specify what exact violation of state
law was involved, it did strongly imply that the plaintiff claimed
that his dismissal itself violated state law, not merely that an
antecedent state law violation provided the pretext for his dismis-
sal. As the court put the issue in McDowell, “ [W]as a federal
statutory or Constitutional right involved when a State Board fired
a State employee contrary to State law for local political considera-
tions?” 465 F.2d at 1345 (emphasis added). The court concluded
that even though the plaintiff may have had a state-law right to
continued employment, this state-law right did not give rise to a
federal constitutional right. Id. at 1346. “Cases of this genre
constitute uniquely State causes of action. As such they are pecu-
liarly within the realm of State courts.” Jd.
a ides deities Mad
IV-21
quickened when the people of the sovereign states ceded
sufficient governmental power to form a sovereign union... .
If we were to distort §§ 1343 and 1983 to vest federal courts
with jurisdiction over the uniquely local substantive matters
which this case presents, we would not only impair our
ability to consider the vast array of cases that properly
belong in federal forums but, as surely as sunrise, we
[would] create yet another and an unnecessary interference
with orderly State processes.
Only if a false vanity duped us into supposing that the
quality of justice in the federal court system is somehow
superior to that dispensed by the State, could we justify
such an incursion into intrastate affairs. To the contrary,
State courts are best equipped to determine the meaning and
the scope of State statutes and local policies and to deter-
mine whether State officials encroached upon [the plain-
tiffs] rights of due process which are fully preserved in
Texas courts by the Texas and the federal Constitution.
Id. at 1346 (citations omitted) .’°
© The First, Circuit reached this same conclusion in Creative Envi-
ronments, Inc. v. Estabrook, 680 F.2d 822 (1st Cir.), cert. denied,
459 U.S. 989, 103 S.Ct. 345, 74 L.Ed.2d 385 (1982). There the
plaintiff argued that its due process rights had been violated by
the town’s distortion of the existing statutory and regulatory
subdivision scheme. The First Circuit, in rejecting this claim,
stated that if the plaintiff's theory were accepted,
any hope of maintaining a meaningful separation between
federal and state jurisdiction in this and many other areas of
law would be jettisoned. Virtually every alleged legal or proce-
dural error [by the state] ... could be brought to a federal
court on the theory that the erroneous application of state law
amounted to a taking of property without due process.
IV-22
The majority does not discuss the parameters of its principle
of equal protection, but its theory appears to have very broad
consequences.” One potential consequence is that federal equal
protection must always provide at least as much protection as
[T]he conventional planning dispute — at least when not
tainted with fundamental procedural irregularity, racial ani-
mus, or the like — which takes place within the framework of an
admittedly valid state subdivision scheme is a matter primarily
of concern to the state and does not implicate the Constitution.
This would be true even were planning officials to clearly
violate, much less “distort” the state scheme under which they
operate.
Id. at 831, 833. As the court continued, “[The plaintiff] may
quite possibly have state law claims on the facts alleged. If so,
there appear to be adequate state law remedies to vindicate
these claims without resort to a federal court.” Id. at 833; see
also Simmons v. Jones, 478 F.2d 321, 328, 329 (5th Cir.1973),
modified on other grounds, 519 F.2d 52 (5th Cir.1975) (violation
of state law does not give rise to violation of federal equal
protection “without a showing of systematic exclusion on the.
basis of race or some other ground forbidden by national
policy”; “[{s]tripped of its flimsy constitutional trappings
[plaintiff's] complaint basically was an effort to enlist a federal
court in a campaign to achieve a more faithful application .. . of
Georgia’s statutory scheme”); Cloutier v. Town of Epping, 714
F.2d 1184 (1st Cir.1983) (equal protection as well as due
process claim denied); Crocker v. Hakes, 616 F.2d 237, 240 (5th
Cir.1980) (“mere ... mistakes of state law do not rise to the
level of constitutional violations’).
| Indeed, to the extent that “classification is the essence of all
legislation,” Clements v. Fashing, 457 U.S. 957, 967, 102 S.Ct. 2836,
2845, 73 L.Ed.2d 508 (1982); see also Perry, supra note 4, at 1068
(“every time a legislature enacts a law ... it classifies’), every
violation of state law is a violation of federal equal protection. For
example, if a state improperly denied someone unemployment
benefits, then it would be discriminating against him by treating
him as a member of the group ineligible for unemployment benefits
rather than as a member of the group eligible for such benefits
under the state’s unemployment compensation scheme.
IV-23
state equal protection; whenever state equal protection is ex-
panded by a state court decision, fed-~al equal protection (ir
that state) must follow. For example, if the California Su-
preme Court held that discrimination against persons over fifty
years of age violated California’s equal protection clause, then
under the majority’s theory, discrimination against persons
over age fifty (in California) would also become a violation of
federal equal protection (despite the Supreme Court’s appar-
ent resolution of the federal equal protection issue in Massa-
chusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct.
2562, 49 L.Ed.2d 520 (1976) (state statute setting mandatory
retirement age of fifty for policemen does not violate federal
equal protection) ). According to the rule enunciated by the
majority, because California state law would require equal
treatment of people under and over fifty, the action of a
California state agency that discriminated between groups for
whom state law required equal treatment would be a denial of
federal equal protection.”
While I have little sympathy with efforts to restrict a liti-
gant’s access to federal courts where federal rights are in-
volved, I believe, in contrast to the majority, that
infringements on rights created by state law are best left to
state courts.'* This conclusion is far more compatible than the
7 Similarly, the majority's theory would have allowed a simple
resolution of many of the legislative reapportionment cases. In
Reynolds v. Sims, 377 U.S. 538, 84 S.Ct. 1362, 12 L.Ed.2d 506
(1964), for example, the state apportionment plan was admittedly
in violation of Alabama’s constitution. Jd. at 540-41 & n. 4, 84 S.Ct.
at 1370 & n. 4. Under the majority’s view, Alabama’s apportion-
ment scheme was a per se violation of federal equal protection.
8 The majority’s attempt to derive an equal protection violation from
a violation of state law would, doctrinally, be more properly placed
within the framework of traditional “rational basis” analysis. To
the extent that rational basis analysis involves an inquiry into the
state’s actual reasons for a classification, rather than merely into
IV-24
majority's with the principles of federalism that underlie many
of our basic constitutional doctrines, including the doctrines
that state court determinations of state law are final,’* and that
federal courts should refrain from exercising jurisdiction in
order to avoid needless conflict with the administration by a
state of its own affairs.’ The difficulties encountered in the
14
15
conceivable reasons, see McGinnis v. Royster, 410 U.S. 263, 270, 93
S.Ct. 1055, 1059, 35 L.Ed.2d 282 (1973) (state classification must
rationally further “some legitimate, articulated state purpose’’);
Schlesinger v. Ballard, 419 U.S. 498, 520, 95 S.Ct. 572, 584, 42
L.Ed.2d 610 (1975) (Brennan, J., dissenting), then the rationality
of a state classification may depend on state law. See generally
Gunther, Foreword: In Search of Evolving Doctrine on a Changing
Court: A Model of a Newer Equal Protection, 86 Harv.L.Rev. 1
(1972). In the present case, for example, it could be argued that,
by passing the Texas Medical Practices Act, Texas has expressly
disavowed any interest in discriminating against osteopaths, and
that therefore the hospital’s by-law is irrational. On this theory,
Hayman and Bermen would be distinguishable, since they did not
involve state statutes forbidding discrimination in the admission
of physicians to hospital staffs. See Hayman, 273 U.S. at 418, 47
S.Ct. at 364; Berman, 600 F.2d at 467.
In recent years, however, the Supreme Court and this court have
reaffirmed their adherence to the conceivable basis test of rational-
ity. See, e.g., United States R.R. Retirement Bd. v. Fritz, 449 U.S.
166, 179, 101 S.Ct. 453, 461, 66 L.Ed.2d 368 (1980); Town of Ball
v. Rapides Parish Police Jury, 746 F.2d 1049, 1061 (5th Cir.1984).
By focusing on conceivable rather than on actual bases for a state
classification, the courts have interpreted the rational basis prong
of equal protection in terms of a federal standard of minimum
rationality. Thus, even with rational basis analysis, state law is not
the touchstone of validity under the equal protection clause.
E.g., Mullaney v. Wilbur, 421 U.S. 684, 691, 95 S.Ct. 1881, 1886, 44
L.Ed.2d 508 (1975); Murdock v. City of Memphis, 87 U.S. (20
Wall.) 590, 632-33, 22 L.Ed. 429 (1874). See generally C. Wright,
Federal Courts 747 (4th ed. 1983).
E.g., Alabama Pub. Serv. Comm’n v. Southern Ry. Co., 341 U.S. 341,
349, 71 S.Ct. 762, 768, 95 L.Ed. 1002 (1951) (“As adequate state
IV-25
present case of determining whether or not the hospital’s
regulation does violate state law’® is a good illustration of why
state courts should have primary jurisdiction over enforcing
their own laws. Although the majority’s theory could be de-
fended in terms of “keeping the states honest,””’ I believe that
16
17
court review of an administrative order based upon predominantly
local factors is available to appellee, intervention of a federal court
is not necessary for the protection of federal rights.”); Burford v.
Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943)
(administration of complicated state regulatory system should be
left to state administrative bodies and courts); Simmons v. Jones,
478 F.2d 321, 328 (5th Cir.1973), modified on other grounds, 519
F.2d 52 (5th Cir.1975) (“As a matter of comity, the district court
should have afforded the Georgia courts the opportunity to rectify
alleged deviations from the requirements of Georgia law... .).
As the majority notes, Texas law forbids only discrimination based
“solely” on a physician’s medical degree. Thus, if osteopaths were
able to attend LCGME-approved residency programs but chose
not to, or if some allopaths as well as osteopaths were excluded
from admission to the hospital’s staff as a result of the hospital's
bylaw, then the hospital would not be discriminating among physi-
cians based solely on their medical degree. The record concerning
both of these points is extremely unclear; it appears that some of
the plaintiffs may have had an opportunity to attend allopathic
residency programs, see Record, vol. 2 at 50, and that allopaths
who received their residency training prior to 1970, when the
LCGME was established, may not be eligible for appointment to
the hospital staff, see id., vol. 3 at 415-6. The plaintiffs did not
allege a violation of Texas law in their complaint. As I read the
finds of fact below, the district court did not specifically find that
Texas law was violated, nor do its findings necessairly imply this
conclusion. Although the majority assumes that the hospital’s
regulation does violate Texas law, I am far from certain that this is
the case.
For an analogous argument that the Guarantee Clause, U.S. Const.
art. IV, $4, cl. 1, requires that states follow their own laws, see
Note, The Rule of Law and the States: A New Interpretation of the
Guarantee Clause, 93 Yale L.J. 561 (1984).
IV-26
the enforcement of state law is a matter primarily of concern to
the states. Ultimately, I believe that the majority’s theory
trivializes equal protection by shifting attention away from its
primary function: imposing substantive restrictions on the
ways in which government can govern.
Thus, although I recognize that a malady may lurk within the
body politic of Tarrant County, the cure must come from the
salving influence of state rather than federal law. I disagree
with the majority’s equal protection diagnosis and, accord-
ingly, though respectfully, dissent.
V-1
Paul A. Stern, et al.
Vv.
TARRANT COUNTY HOSPITAL DISTRICT, et al.
Civ. A. No. 4-80-281-E.
United States District Court,
N.D. Texas,
Fort Worth, Division.
June 6, 1983.
Osteopathic physicians brought action seeking to enjoin
hospital from denying staff privileges on basis of physicians’
post-doctoral training. The District Court, Mahon, J., held that
the postdoctoral training requirement violated physicians’ con-
stitutional rights of the Fifth and Fourteenth Amendments.
Judgment for plaintiffs.
1. Constitutional Law Key 82(6)
A physician has no constitutional right to staff privileges of
hospital merely because he is licensed to practice medicine.
2. Constitutional Law Key 238 (2)
In physicians’ action against hospital alleging equal protec-
tion violations arising from hospitals’ denial of staff privileges
on basis of their postdoctoral training, physicians had not
shown a “fundamental right” nor had they shown they were a
“suspect class” and, thus, issue was whether their classification
bore a rational relation to a legitimate state interest. 42
U.S.C.A. § 1983; U.S.C.A. Const.Amend. 14.
3. Constitutional Law Key 213.1 (2)
Rational relation standard of examing equal protection claim
requires examination of whether any stated facts reasonably
V-2
may be emceived to justify the challenged classification. 42
U.S.C.A. $1983; U.S.C.A. Const. Amend. 14.
4. Hospitads Key 6
Court, in hearing physicians’ action seeking to enjoin hospi-
tal from denying staff privileges on basis of their postdoctoral
training, was to apply law in effect at time it rendered the
decision, including statute passed subsequent to events and
conditions giving rise to the action.
5. Federal Courts Key 41
Abstention from exercise of federal jurisdiction is the excep-
tion, not the rule.
6. Federal Courts Key 55
District court did not find “exceptional circumstances” nec-
essary to justify abstention from hearing physicians’ action
seeking to enjoin hospital from denying staff privileges on
basis of their postdoctural training.
7. Constitutional Law Key 275(1.5)
Hospitals’ requirement that physicians, who were duly li-
censed by the Board of Medical Examiners of Texas and who
all had two or more years of postdoctoral training in a program
accredited by the American Osteopathic Association, obtain
postgraduate medical training as a condition for being granted
staff privileges was an arbitrary and false standard in violation
of physicians’ rights under the Fifth and Fourteenth Amend-
ments. U.S.C.A. Const. Amends. 5, 14.
James A. Williams, Bailey, Williams, Westfall, Lee &
Fowler, Dallas, Tex., for plaintiffs.
V8
Frederick M. Schattman, Asst. Dist. Atty., Tarrant County,
Fort Worth, Tex., for defendants.
Alan Wilson, Law, Snakard, Brown & Gambill, Fort Worth,
Tex., for George J. Luibel.
MEMORANDUM OPINION AND ORDER
MAHON, District Judge.
Plaintiffs Paul A. Stern, Lee J. Walker, C. Raymond Olson,
Joel Alter and W. R. Jenkins bring this action against Defend-
ants Tarrant County Hospital District, John Peter Smith
Hospital, Harold B. Daley, Bruce K. Jacobson, George J.
Luibel, Robert L. McAfee, George H. Moore, Harry A. Noah,
Tim Philpot, James C. Pollard, and Julius Truelson, alleging
that the denial of Plaintiffs’ applications for staff membership
at John Peter Smith Hospital has denied to these plaintiffs
their rights and privileges under the Fifth and Fourteenth
Amendments to the Constitution of the United States pursuant
to 42 U.S.C. § 1983, and has violated the antitrust laws found
in the Sherman and Clayton Acts. 15 U.S.C. §§ 1-7, and 15
U.S.C. §§ 12-27. Trial was to the Court without a jury. Having
carefully considered the evidence presented, the argument of
counsel and the supporting briefs, the Court enters the follow-
ing opinion which will address: (1) Plaintiffs’ Constitutional
Rights, (2) Applicable Standard, (3) Case Law Background,
(4) Abstention, (5) Texas Medical Practice Act, (6) Reasona-
bleness, (7) Findings of Fact, and (8) Conclusions of Law.
I.
PLAINTIFFS’ CONSTITUTIONAL RIGHTS
[1] All of the plaintiffs are physicians duly licensed by the
Board of Medical Examiners of the State of Texas and alli have
had two or more years of post-doctoral training in a program
\
V-4 \
accredited by the American Osteopathic Association. Defénd-
ants correctly assert that in order to sustain a suit under \42
U.S.C. § 1983, a plaintiff must show the Court some right,
privilege, or immunity that he claims under the Constitutio
Defendants are also correct in stating that a physician has no’
constitutional right to the staff privileges of a hospital merely \
because he is licensed to practice medicine. Hayman v. City of \
Galveston, et al., 273 U.S. 414, 416-17, 47 S.Ct. 363, 364, 71
L.Ed. 714 (1927); Daly v. Sprague, 675 F.2d 716, 727 (5th Cir.
1982); Sosa v. Board of Managers of Val Verde Memorial \
Hospital, 437 F.2d 173, 175 (5th Cir. 1971). \
However, that does not end the Court’s inquiry. The Four- \
teenth Amendment contains an “equal protection” clause that \
applies to any “state action” regardless of whether the state \
action affects specific rights which themselves rise to a consti- \
tutional level. For example, in Meredith v. Allen County War
Memorial Hospital Com’n, 397 F.2d 33 (6th Cir.1968), involving
the denial of reappointment of a physician to the hospital
medical staff, the Court stated:
Defendants are correct in asserting that plaintiff has no
constitutional right to practice his profession at a public
facility ...The constitutional requirements of due process
and equal protection, however, place limitations on the man-
ner in which one can be excluded from such practice.
Meredith at 35.
Likewise, in a case brought by Chiropractors, the Fifth
Cireuit noted:
We are not called on at this time to say whether chiroprac-
tors should be admitted to practice in Louisiana, but the
question is whether they are entitled to an opportunity to
prove that the State’s denial of their claimed right to
practice an allegedly useful profession is so arbitrary and
unreasonable as to amount to a denial of due process or of
V-5
the equal protection of the laws under the Fourteenth
Amendment.
England v. Louisiana State Board of Medical Examiners, 259
F.2d 626, 627 (5th Cir. 1958).
Similarly, in Foster v. Mobile County Hospital Board, 398
F.2d 227 (5th Cir. 1968), the Fifth Cireuit considered the
denial of admission of plaintiffs to the medical staff of the
county hospital and noted:
It is not disputed by appellees that the Mobile County
Hospital Board, which was created by Act No. 46 of the
Alabama Legislature, and which receives both state and
federal funds, is a public institution. Its acts, therefore, are
state acts subject to the provisions of the Fourteenth
Amendment... .
That such state action demands equal treatment of mem-
bers of the same class (i.e. physicians) is a fundamental
requisite of equal protection rights.
Foster at 230.
There are numerous cases in which the absence of a constitu-
tional right to practice medicine in a public hospital has not
prevented the courts from considering the physician's equal
protection claims. Plaintiffs in this case have presented a
similar equal protection claim which this Court will consider.
Il.
APPLICABLE STANDARD
In its consideration of Plaintiff's equal protection claims, the
Court must determine the appropriate standard to apply. The
Fifth Cureuit has stated:
The proper degree of judicial “scrutiny,” . . . is a function of
two variables: first the nature of the right affected; and
V-6
second, the identity of the plaintiff. If the classification
“interferes with the exercise of a fundamental might or
operates to the peculiar disadvantage of a suspect class,” ...
“strict” judicial scrutiny is then the standard of review...
Otherwise, the question is whether the classification bears “a
rational relation to a legitimate state interest.”
Pappanastos v. Board of Trustess, Etc., 615 F.2d 219, 220-21
(5th Cir. 1980).
[2] Plaintiffs have not shown a “fundamental right” nor
have they shown they are a “suspect class,” and, thus, the
Court will use the “rational relation” standard to judge the
classification in this case.
[3] The rational relation standard requires an examination
of whether “any state of facts reasonably may be conceived to
justify” the challenged classification. McGowan v. Maryland,
366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961).
The Fifth Cireuit, in Foster, after noting that the actions of a
county hospital board are state actions demanding equal treat-
ment of all members of the same class (of physicians) ex-
plained that “[a]ny distinction between such members must be
on a reasonable basis” and “the distinctions which are drawn
must in some way relate to the pupose of the classification
made.” Foster at 230.
These are the guidelines the Court will follow in this case.
III.
CasE LAW BACKGROUND
An examination of the case law regarding osteopaths and
their admission to practice in public and private hospitals must
begin with Hayman v. City of Galveston, 273 U.S. 414, 47 S.Ct.
363, 71 L.Ed. 714 (1927) in which an osteopathic physician
who was a resident of Texas brought suit to enjoin the enforce-
V-7
ment of a regulation excluding osteopaths from practicing in a
municipal hospital. The Supreme Court first held that a physi-
cian does not have a constitutional right to practice his profes-
sion in a hospital maintained by a state or a political
subdivision (as already noted above). Hayman at 416-17, 47
S.Ct. at 364.
Next, the Supreme Court noted that there were “numerous
systems or methods of treating diseases authorized to practice
in Texas” and that in the management of a hospital, a choice
among those methods of treatment would be inevitable.
Hayman at 417, 47 S.Ct. at 364. The choice of excluding
osteopaths was found to have a “basis in the exercise of the
judgment of the state board,” and thus, the Supreme Court
stated it could not say that the regulation was either unreason-
able or arbitrary. Hayman at 418, 47 S.Ct. at 364. Finally, the
Supreme Court said that the provision of the Texas Constitu-
tion declaring that “no preference shall ever be given by law to
any schools of medicine,” Art. XVI, § 31, Texas Constitution,
applied only to the admission to practice medicine in Texas
and had nothing to do with the qualifications of those who were
to be allowed to practice in state hospitals. Hayman at 417, 47
S.Ct. at 364.
At first glance, this case decided in 1927, would appear to
definitely resolve all of the issues which are now before the
Court over 50 years later. This Court, however, must always be
mindful of the basie premise that our system of law is an
evolving one, uniquely adaptable to the constantly evolving
society and changing world in which we live. Therefore, the
Court is compelled to examine all of the evidence presented in
this case to determine if such a standard is unreasonable or
arbitrary under the facts as they exist today, even though such
a standard may have been reasonable under the facts as they
existed over 50 years ago.
V-8
This Court, in its examination of the evidence has concluded
that at least two basic changes regarding the practice of
osteopathic medicine in Texas have taken place since Hayman
was decided in 1927. First, the evidence before the Court shows
that the obvious differences which once distinguished osteo-
pathic physicians (D.O.’s) from allopathic physicians (M.D.’s)
have virtually disappeared today.
It is undisputed that today there is no substantial difference
between accredited medical schools conferring “Doctor of
Medicine” degrees and “Doctor of Osteopathy” degrees except
that students attending the medical school conferring the
“Doctor of Osteopathy” degree are required to take several
courses in manipulative therapy. The only remaining difference
between D.O.’s and M.D.’s has been described simply as one of
philosophy.
Second, the Texas Medical Practice Act, Tex.Rev.Civ.Stat.
art. 4495b (Vernon Supp. 1982-83) [hereinafter called “the
Act’’] was passed by the Texas Legislature in 1981. This Act
states, among other things, that “state agencies or political
subdivisions shall not differentiate solely on the basis of the
academic medical degree held by a person licensed under this
Act.” Subchapter A, Sec. 1.02(9) (Vernon Supp. 1982-83).
Such an act passed by the legislature would, at the least,
require a reconsideration by the Court of the “reasonableness”
of actions by a public hospital differentiating betweeen osteo-
pathic and allopathic physicians, even though such actions have
been held to be “reasonable” in cases considered before the Act
was passed. See e.g., Berman v. Florida Medical Center, Inc.,
600 F.2d 466 (5th Cir. 1979).’
‘The Court notes that the Berman case involved a private hospital,
and was dismissed on the pleadings for want of state action. Any
other statements in the opinion regarding reasonableness of the
osteopathic/allopathic distinction are dicta.
V-9
[4] Defendants assert, however, that this lawsuit, filed in
1980, involves only events and conditions existing in 1979, and
that none of these actions should be judged by an act passed in
1981. The Court does not agree. This suit was brought seeking
only an injunction and does not request any relief in the form
of damages for actions that have taken place in the past. Also,
as the Supreme Court stated in Bradley v. Richmond School
District, 416 U.S. 696, 717, 94 S.Ct. 2006, 2019, 40 L.Ed.2d 476
(1974): “A court is to apply the law in effect at the time it
renders the decision, unless doing so would result in manifest
injustice or there is statutory or legislative history to the
contrary.”
In determining whether an injunction should issue, the
Court must examine the evidence presented to it during the
trial concerning the law and facts as they presently exist. For
example, if an injunction were sought and the reason for such
injunction disappeared before the time of trial, the Court
should not limit its inquiry to the law and facts which existed
prior to the filing of the suit, but should consider the then-
existing circumstances to make its decision, properly denying
the injunction. Likewise, if, in the present case, the law has
changed since the filing of the suit, and if such change, in
addition to other evidence before the Court, would lead to the
conclusion that an injunction should issue, the Court sees no
reason to limit its consideration to the law and facts of 1979.
IV.
ABSTENTION
Next, Defendants cite the abstention doctrine of Railroad
Commission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 6438, 85
L.Ed. 971 (1941). In that case a regulation issued by the Texas
Railroad Commission was being attacked as unconstitutional
and the Commission asserted its power under a Texas statute
to issue such a regulation. There, the Supreme Court held that
V-10
the district court should have abstained from hearing the case
until the state courts had construed that state statute as to
whether it sustained the Commission’s assertion of power. The
Court noted that one possible construction of the state statute
would have avoided both the need for a constitutional decision
and the “needless friction with state pelicies.”” Pullman at 500,
61 S.Ct. at 645.
In contrast, Defendants in this case are not asserting their
power to make such a provision as the one in question on the
basis of some state statute which has yet to be construed by
state courts. There is no challenge to the constitutionality of
any state statute and the Judgment to be entered in this case
does not present even the possibility of ruling on the constitu-
tionality or unconstitutionality of any state statute.”
Furthermore, the Pullman-type abstention requires that
““(1) there be an unsettled issue of state law; and (2) there
must be a possibility that the state law determination will moot
or present in a different posture the federal constitutiona!
questions raised.” [the Court’s emphasis] Palmer v. Jackson,
617 F.2d 424, 428 (5th Cir.1980); Red Bluff Drive-In, Inc. v.
Vance, 648 F.2d 1020, 1034 (5th Cir.1981), cert. denied sub
nom., Theaters West, Inc. et al. v. Holmes, et al., 455 U.S. 913,
102 S.Ct. 1264, 71 L.Ed.2d 453 (1982); See generally: C.
Wright, A. Miller, & E. Cooper, Federal Practice and Proce-
> The other types of abstention have not been asserted and this Court
finds no need to apply them. There are no “difficult questions of
state law bearing on policy problems of substantial public import
whose importance transcends the result in the case... at bar,”
Colorado River Water Conservation District v. United States, 424 U.S.
800, 814, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976), and thus
Burford-type abstention is not required. See Burford v. Sun Oil, 319
U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). Also, there are no
pending state criminal proceedings and thus Younger abstention is
not appropriate. See Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27
L.Ed.2d 669 (1971).
V-11
dure § 4242 (1978). The first prerequisite of an “unsettled
issue” of state law is not found in the present case, where the
state statute involved is “clear and unambiguous in all material
respects.” Harmon v. Forssenius, 380 U.S. 528, 535, 85 S.Ct.
1177, 1182, 14 L.Ed.2d 50 (1965). See also Scheinberg v. Smith,
659 F.2d 476, 480-481 (5th Cir. 1981); Duncan v. Polythress,
657 F.2d 691, 696 (5th Cir.1981); High Ol’ Times, Inc. v.
Busbee, 621 ¥.2d 135, 139-141 (5th Cir.1980).
In the present case, the pertinent part of the state statute
says that the separate laws regulating the practice of medicine
should be brought together under one act and goes on to state:
[R]ecognizing that state agencies and political subdivi-
sions which own or operate hospitals, facilities, or institu-
tions or administer programs are responsible for
determining medical staff appointments or the qualifications
of physicians for such programs, and further recognizing
that all persons licensed under the Act have met certain
basic educational requirements, been examined by the board,
and passed the same qualifying examination which applies
the same standards to all who desire to practice medicine,
irrespective of academic medical degree, it is the intent of
the legislature to prohibit differentiation solely on the basis
of the academic medical degree held by a person licensed
under this Act in determining such medical staff appoint-
ments or such qualifications. To this end such state agencies
or political subdivisions shall not differentiate solely on the
basis of the academic medical degree held by a person
licensed under this Act. State agencies or political subdivi-
sions which own or operate hospitals, facilities, or institu-
tions shall, however, be free to adopt reasonabie rules,
regulations, and requirements relating to qualifications for
medical staff appointments, reappointments, termination of
appointments, the delineation of clinical privileges, or the
curtailment of clinical privileges of those who are appointed
V-12
to such medical staff or permitted to participate in educa-
tional programs so long as such rules, regulations, and
requirements are determined upon a reasonable basis, such
as professional and ethical qualifications of the physician,
upon standards that are reasonable, applied untainted by
irrelevant considerations, supported by sufficient evidence,
free of arbitrariness, capriciousness, or unreasonabieness
and which do not differentiate solely upon the academic
medical degree held by such physician. The provisions con-
tained herein relating to the academic medical degree shall
not be applicable to any medical school or college or any
programs of a medical school or college.
Tex.Rev.Civ.Stat.art.4495b, Subchapter A, Sec. 1.02(9)
(Vernon Supp.1982-83).
The Court finds this language “clear and unambigious in all
material respects.” Harmon, supra, 380 U.S. at 535, 85 S.Ct. at
1182. It clearly applies to the Tarrant County Hospital District
and it clearly prohibits differentiation solely on the basis of
academic medical degree held by a person. The constitutional-
ity of this statute is not involved, and the Court is looking to
this statute only as a guide in determining the alleged reasona-
bleness of the provision at issue in the by-laws of the medi-
cal/dental staff of the county hospital.
[5.6] Having found the law is clear and unambiguous, the
Court need not examine the second prerequisite for Pullman
abstention since both prerequisites must be present before
abstention is required. In conclusion, the Court stresses that
“Talbstention from the exercise of federal jurisdiction is the
exception, not the rule.” Colorado River Water Conservation
District, et al. v. United States, 424 U.S. 800, 813, 96 S.CT. 1236,
1244, 47 L.Ed.2d 483 (1976). See also Zwickler v. Koota, 389
U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967); O’Hatr v. White,
675 F.2d 680, 692 (5th Cir.1982); High Ol’ Times, supra. This
Court does not find those “ exceptional circumstances” Zd.
V-13
which must be present to justify abstention. Thus, the Court
concludes the abstention doctrine of Railroad Commission of
Texas v. Pullman Co. is not applicable to this case.
We
TEXAS MEDICAL PRACTICE ACT
The Texas Medical Practice Act of 1981, (the “Act’”) recog-
nizes that “all persons licensed under this Act have met certain
basic educational requirements, been examined by the board,
and passed the same qualifying examination which applies the
same standards to all who desire to practice medicine, irre-
spective of academic medical degree.” Tex.Rev.Civ.Stat. art.
4459b, Subchapter A, Sec. 1.02(9) (Vernon Supp.1982-83).
More specifically, Subchapter C of the Act lists the following
qualifications for licensure:
(a) An applicant, to be eligible for the examination, must
present satisfactory proof to the board that the applicant:
(1) is at least 21 years of age;
(2) is of good professional character;
(3) has completed 60 semester hours of college courses
other than in medical school, which courses would be accept-
able, at the time of completion, to The Unviersity of Texas
for credit on a bachelor of arts degree or a bachelor of
science degree; and
(4) is a graduate of a medical school or college that was
approved by the board at the time the degree was conferred.
(b) Applications for examination must be made in writ-
ing, verified by affidavit, filed with the board on forms
prescribed by the board, and accompanied by a fee as the
board determines to be reasonable.
V-14
Tex.Rev.Civ.Stat. art. 4995b, Subchapter C, Sec. 3.04(a), (b)
(Vernon Supp.1982-83).
The Texas Legislature gave the State Board of Medical
Examiners the following power in licensing: “In addition to the
requirements prescribed by this Act, the board may require
applicants to comply with other requirements that the board
considers appropriate and establish reasonable fees for exami-
nation.” Tex.Rev.Civ.Stat.art.4495b, Subchapter C, Sec.
3.05 (b).
The Board subsequently exercised its power under that
provision. As a result, the Licensure Rules of the Texas State
Board of Medical Examiners, as published in the Texas Regis-
ter, vol. 6, No. 81, October 27, 1981,° list six criteria for
licensure qualifications.
In addition to age, “good professional character,” 60 semes-
ter hours of college courses other than medical school. gradua-
tion from an approved medical school, passing a medical
examination and the Texas medical jurisprudence examination,
the Board requires completion of a one-year program of gradu-
ate medical training approved by the Board. Title 22 Examin-
ing Boards, Part [X. Texas State Board of Medical Examiners,
Chapter 163, Licensure by Examination, § 163.1(a) Licensure
Qualifications for All Applicants, vol. 6, no. 81, Oct. 27, 1981.*
° The Court takes judicial notice of these Rules pursuant to Art. 6252-
13a § 4(c) Tex. Rev. Civ. Stat. (Vernon Supp.1982-83).
*The Court notes that House Bill No. 1999 amends the Texas
Medical Practice Act to add the following subsection (5) to Chapter
C regarding qualifications for licensure in Texas:
(5) has successfully completed a one year program of graduate
medical training approved by the board. In addition to other
licensure requirements, the board may require by rule and reguia-
tion that graduates of medical schools located outside the United
States and Canada comply with other requirements that the board
considers appropriate, including but not limited to additional grad-
ee
—— i a
V-15
In § 163.2 the “approved medical schools” are described as
those accredited by either the Liaison Committee on Medical
Education or the American Osteopathic Association. Similarly,
in § 163.4 the Board states it will approve training programs
which have been accredited by either the Liaison Committee on
Graduate Medical Education or the American Osteopathic
Association (or two other committees). Evidence was
presented during the trial of this case to explain the fact that
the Liaison Committee on Graduate Medical Education, al-
though it is not an arm of the American Medical Association,
accredits only allopathic medical programs (and has from the
day of its inception).
The Act, in recognizing that all persons who have been
licensed under the Act have met a threshold of requirements
(that “threshold” being the six requirements of § 163.1 dis-
cussed above), states the intent of the Legislature to prohibit
differentiation solely on the basis of academic medical degree.
These threshold requirements accept both allopathic and osteo-
pathic degrees and training. The Court chooses to refer to the
six requirements listed in § 163.1 as “threshold” requirements
because beyond this “threshold” of requirements there are, of
course, further reasonable requirements for additional profes-
sional and ethical qualifications for any physician who desires
to be appointed to the medical staff of a public hospital.
uate medical training in the United States, except those who qualify
for licensure in Section 5.04 of this Act. However, the applicant
shall be eligible for examination prior to complying with Subdivision
(5) of Subsection (a) of this section but shall not be eligible for the
issuance of an unrestricted license until the requirements of this
subsection have been satisfied.
During the Sixty-eighth Legislature, House Bill No. 1999 passed
the House on April 29, 1983, and passed the Senate on May 239,
1983, and is now pending the signature of Texas Governor Mark
White.
V-16
Obviously, the fact that a person has met these “threshold”
requirements for licensing does not mean that he should
automatically be appointed to the staff of a public hospital, and
the Court recognizes and approves a requirement of additional
standards for appointment. However, in considering staff
apointments to public hospitals, there is no apparent reason to
re-examine the elements of the “threshold” qualifications that
every physician licensed in Texas must meet, and to differenti-
ate between osteopaths and allopaths solely because of the
degree they hold or the training they received since both of the
types of degrees and training are unquestionably acceptable in
the “threshold” requirements for licensure in Texas.
The Texas legislature clearly expressed its intent in this
matter in the following sentence:
State agencies or political subdivisions which own or operate
hospitals, facilities, or institutions shall, however, be free to
adopt reasonable rules, regulations, and requirements relat-
ing to qualifications for medical staff appointments, reap-
pointments, termination of appointments, the delineation of
clinical privileges of those who are appointed to such medical
staff or permitted to participate in educational programs so
long as such rules, regulations, and requirements are deter-
mined upon a reasonable basis, such as professional and
ethical qualifications of the physician, upon standards that
are reasonable, applied untainted by irrelevant considera-
tions, supported by sufficient evidence, free of arbitrariness,
arbitrariness, or unreasonableness and which do not differ-
entiate solely upon the academic medical degree held by
such physician.
Tex.Rev.Civ.Stat. art. 4495b, Subchapter A, See. 1.02(9)
(1982).
The Court now turns to the question of whether the provision
in Article 3, § 3.11 of the by-laws of the Medical/Dental Staff
V-17
of John Peter Smith Hospital (Joint Exhibit 11) is, in fact, a
reasonable one.
VI.
REASONABLENESS
In Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 101
S.Ct. 715, 66 L.Ed.2d 659 (1981) Justice Brennan spoke for a
majority of the Court in considering an equal protection chal-
lenge to a state statute:
But States are not required to convince the courts of the
correctness of their legislative judgments. Rather, ‘those
challenging the legislative judgment must convince the court
that the legislative facts on which the classification is appar-
ently based could not reasonably be conceived to be true by
the governmental decisionmaker.’ Vance v. Bradley, 440 U.S.
93 [99 S.Ct. 939, 59 L.Ed.2d 171], legislation under the
Equal Protection Clause may introduce evidence supporting
their claim that it is irrational ... they cannot prevail so long
as ‘it is evidence from all the consideration presented to [the
legislature] and those of which we may take judicial notice
that the question is at least debatable’ [cites omitted].
Clover Leaf, 449 U.S. at 464, 101 S.Ct. at 724.
Also, in contrast to Clover Leaf, Plaintiffs have challenged
the theoretical basis for Defendants’ provision. See Clover Leaf
at 463, 101 S.Ct. at 723. While the Court will not substitute its
own judgment for those who enacted the bylaws in question it
will examine the reasons given by Defendants for those provi-
sions in light of the Texas Medical Practice Act of 1981. °
° As discussed above, this suit was filed in 1980, prior to the
enactment of the Medical Practice Act of 1981. The bylaws of John
Peter Smith Hospital, however, have been amended since the
enactment of that Act, and still require training in a program
V-18
[7] The Court will first examine the background of the
provision in question. The earliest staff bylaws of John Peter
Smith Hospital before the Court (Joint Exhibit 1) show that in
1960, one requirement for staff membership was membership in
the Tarrant County Medical Society, an allopathic institution.
In 1974, that was changed to a requirement of a degree of
Doctor of Medicine (allopathic) from a school accredited by
the Council on Medical Education of the American Medical
Association and “one year of internship approved by the
Council on Medical Education of the American Medical Associ-
ation” (Joint Exhibit #3, page 2, Art. III, § 3.11). The M.D.
(allopathic) requirement was continued in December 1974
(Joint Exhibit #4), 1975 (Joint Exhibit #5), 1977 (Joint
Exhibit #6), and 1978 (Joint Exhibit #7).
In 1979, (Joint Exhibit #8) the M.D. requirement was
changed to a requirement of two years of training in a program
accredited by the Liaison Committee on Graduate Medicine
Education (LCGME), which accredits oniy allopathic training
programs. The only change in that requirement in December
1980 was a reduction from two years to one year of training (in
the LCGME accredited program). The record does not reveal
why this was changed from two years to one year. Then, in
December 1981, the accrediting body was changed from the
LCGME to the “Accreditation Committee on Graduate Medi-
ca! Education,” a successor to the LCGME.
approved by the “Accreditation Committee on Graduate Medical
Education,” the successor of the LCGME discussed above (See
Joint Exhibit #11). Had the bylaws which were amended in
December of 1981 been changed to drop this requirement, the
request for an injunction would be moot at this time. On the other
hand, the Defendants, by not changing the requirement, and by
claiming such requirement is reasonable even in light of the Medi-
cal Practice Act of 1981 place the issue of reasonableness before
the Court today.
V-19
In the bylaws of 1979 (Joint Exhibit #8) there was a
“waiver” of the above qualifications, in “exceptional cases.” It
was under this waiver that Dr. Paul Stern, one of the Plaintiff
osteopaths, had applied for staff membership and privileges,
and the Executive Committee did, in fact, reeommend waiving
that requirement for Dr. Stern on August 7, 1979. However,
before the matter was presented to the Board of Managers for
the Tarrant County Hospital District, Dr. Bruce Jacobson
(who admitted to this Court that he wishes to keep the
Hospital an allopathic institution) contacted the then Assis-
tant Tarrant County District Attorney, Marvin Collins, who
was the Board's legal advisor, and raised the question of what
guidelines were to be applied in the “exceptional cases.”
Mr. Collins, the legal advisor, recommended that the ap-
proval of Dr. Stern be deferred pending receipt of the staff's
recommendations concerning the guidelines. The Board of
Managers determined that no appropriate guidelines could be
established and thus eliminated the “waiver” for exceptional
eases. Dr. Stern was denied staff privileges and all other
Plaintiff osteopaths were likewise denied staff privileges in
1979. Subsequently, the bylaws were amended in 1980 to
eliminate any possible “waivers” under any circumstances. All
parties before the Court agree the denial of staff membership
for all Plaintiffs was based solely on their lack of training in an
LCGME.-accredited program.
Defendants first assert that such a requirement relates to
the post-graduate medical training program of physicians, not
to their “academic medical degree” and thus, does not differen-
tiate solely on the basis of the academic medical degree held by
a person licensed under this Act” Vernon’s Ann.Civ.St. Art.
4495b, supra. However, it is obvious that if the Board of
Managers were to state in the bylaws that the Board, itself,
rather than the LCGME would be the body who must approve
certain training programs, then in light of the Medical Practice
V-20
Act of 1981 the Board would not be free to state that it would
personally investigate and approve only allopathic training
programs providing training for physicians the majority of
whom hold allopathic degrees and would not even investigate
osteopathic training programs where the overwhelming major-
ity of physicians with osteopathic degrees train.
And yet, rather than make such a statement on its own part,
the Board chose to delegate such investigation and accredita-
tion of training programs to the LCGME, who, according to
the undisputed evidence in this Court, takes just such a
position as described above. The Defendants appear to be
attempting in this delegation to do indirectly what they cannot,
in light of the Act, do directly. The Court finds this to be
unreasonable.°
Next, Defendants assert that even if such approval of gradu-
ate training programs is differentiation on the basis of aca-
demic medical degree, it is not solely on such a basis, but is
also based on the reasonable desire on the part of the Board
that only the physicians of the highest quality be on the staff.
Noting that the burden is on the Plaintiffs to convince the
Court that the reason given by Defendants “could not reasona-
bly be conceived to be true by the... decisionmaker,”’ Clover
Leaf at 464, 101 S.Ct. at 724, the Court finds that Plaintiffs
have carried their burden of proof in this case for the following
reasons.
® Plaintiffs assert that delegating the determination of qualifications
for staff membership from the Board to the LCGME is improper
under Duson v. Poage,318 S.W.2d 89 (Tex.Civ.App.1958 w/r n.r.e.).
Without deciding that issue, the Court emphasizes that even if such
delegation were proper, in the present case it would result in a
party doing indirectly what he must not do directly under the law.
On the other hand, if such delegation is improper, the new words
added to the bylaws in 1979, and in the 1980 and 1981 bylaws
stating that the standards of the accrediting body LCGME are
specifically “adopted” does not cure the delegation problem.
V-21
The Court is aware that concern about the high quality of
physicians in John Peter Smith Hospital is a basic principle in
all actions taken by that hospital. However, the history of the
bylaws of the Tarrant County Hospital District and the testi-
mony before the Court reveals that in the years since 1960 the
bylaws have repeatedly been amended to meet the changing
legal standards regarding osteopaths and allopaths, and at the
same time, to continue to have the ultimate effect of excluding
all osteopathic physicians. Thus, the Court has seen a continu-
ous pattern, the actual purpose of which is to exclude all
osteopathic doctors from the hospital either by requiring that
they be M.D.’s or by later requiring that their post-doctoral
training be allopathic. It appears that such provisions were
aimed not at maintaining a highly-qualified staff, but at main-
taining a segregated allopathic hospital.’
Second, the Court notes that even if such a concern about the
qualifications of the staff is the true reason for the provisions
in question, that reason has been shown by Plaintiffs to be
arbitrary and capricious. Defendants’ assertions that they are
primarily concerned with seeing that only the physicians of
highest quality are on the stan and that they must therefore
carefully make such rules and regulations as are before the
Court today, are weakened by several facts which they have
neither denied nor contradicted. First, as the Court has dis-
eussed above, the “threshold” requirements for Licensure in
Texas approve of both allopathic and osteopathic post-graduate
medical training. The Medical Practice Act, while recognizing
that certain additional factors (namely “professions' and ethi-
cal qualifications” of the physician) may be cousidered in
’ For example, Dr. Hargrove testified that a position taken in 1976
involved keeping all osteopaths off of the staff. A fall-back position
was to allow D.O.’s but make them allopathic. He admitted this fall-
back position was assumed in 1979. No words about the quality or
ability of the staff were involved.
V-22
appointment to staffs of public hospitals, does not include the
reexamination of those “threshold” requirements as a factor,
implying that those who have met the threshold requirements
are equally qualified in those areas. Thus, a concern about the
quality of physicians would be unreasonable according to the
Medical Practice Act, if it measured such quality by differenti-
ating solely between allopathic and osteopathic education.
Here, the Board of Managers asserts its desire to reexamine
those threshold requirements, for no apparent reason. Dr.
Jacobson testifying for the Defendants admitted that he did
not consider osteopathic training to be “inferior” to allopathic
training. Such a statement cannot logically support the theory
that a desire for the highest qualified physicians mey be
effected by looking only to allopathic training programs, ex-
pecially in light of the Act in which a distinction between
osteopaths and allopaths is unreasonable by definition.
Also, the Defendants’ insistence that only those physicians
who attended LCGME-approved graduate training programs
have the necessary training and skills to meet the hospital’s
high qualifications is contradicted by the fact there are numer-
ous physicians on the staff of John Peter Smith Hospital who
attended training programs which were not approved by
LCGME. LCGME came into existence in 1970, and all gradu-
ate training programs before that year fall short of this
requirement. However, to avoid this small problem whénever a
physician on the staff is being considered for reappointment,
the bylaws were rewritten in 1980 and 1981 to read “Qualifica-
tions for Initial Appointment” [the Court’s emphasis]. Thus an
automatic waiver was written into the requirements for all
allopathic physicians already on the staff in the absence of
LCGME-approved training. In contrast, those osteopaths who
received training before 1970 face the absolute impossibility of
having attended any training program in the world that was
LCGME-approved before 1970.
<a i Sell Cs
V-23
More importantly, in the testimony of Dr. Roberts, from
Southwestern Medical School, speaking as an allopathic physi-
cian, he denied that experience at an LCGME-approved train-
ing program would mean an applicant was a good physician.
He elaborated on that denial by stating that some LCGME-
approved training programs are placed on probation for four to
seven years. Thus some M.D.’s go through their entire resi-
dency in a deficient program, but their training looks as good
on paper as any other LCGME-approved training.
A third theory offered by Defendants as a basis for the
provision in question is that all physicians on the staff are
“potential teachers” in the post-graduate program and Defend-
ants have a reasonable desire that all physicians on the teach-
ing staff at John Peter Smith Hospital should be trained in
allopathic programs. In asserting this theory, Defendants ap-
parently use a three-step process. They begin with the premise
that a physician who meets the qualifications may be appointed
to the hospital staff. Next, Defendants add the statement that
all physicians appointed to the hospital staff are potential
teachers in the post-graduate program. Finally, Defendants
arrive at the conclusion that if an osteopath is appointed to the
hospital staff that is the equivalent of having an osteopath on
the teaching staff of the allopathic educational program. The
Court considers such a conclusion a non sequitur. It is not
supported either by the evidence before the Cour
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