# Appendix — Stern v. Tarrant County Hospital District > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1470%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1986 - **Citation:** 476 U.S. 1108 ## Text ~ 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 Fifth Cireuit Panel opinion (withdrawn) V. District Court opinion (including findings of fact) I-1 UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Pau A. STERN, et al..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 I-3 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. — tt, eee + oe ee nee mn 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 1-15 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1470%3A2. Public record. Not legal advice.