*1 1052
right any petition was violated. of Johnson’s for writ of corpus habeas event, light of the careful voir dire of AFFIRMED. Allen, Jr., Jimmy prosecutor, counsel, judge and trial
defense examined understand, recall ability
his and narrate shootings, impression
his would be
difficult conclude that trial court’s fundamentally
decision rendered the trial Allen, Jimmy
unfair. Whether Jr.’s testi internally
mony was so inconsistent as a credible,
matter of fact that it was not as argues,
Johnson further
is not an issue
may
Maggio
this
consider.
v.
2261,
Fulford,
462 U.S.
103 S.Ct.
al.,
STERN,
Paul A.
et
(1983);
see
794
United
Plaintiffs-Appellees,
Jersey,
States ex rel. Petillo v. New
v.
(3d
Cir.1977); Mapp
F.2d
v. Clem
ent,
F.Supp.
(S.D.N.Y.),
TARRANT
COUNTY HOSPITAL
aff'd
Cir.1978), DISTRICT,
opinion,
(2d
without
objected given. charge to the as There
fore, Wainwright under doctrine of
Sykes, addressing we are barred from Furthermore,
merits issue. it may noted that trial court instructed the
jury that the circumstances of the “[i]f convincing beyond
identification are not you
reasonable doubt find the must defend guilty.”
ant not It is inconceivable that the charge jury,
refusal to further as de requested, you
fendant that “if ... have a
reasonable doubt whether the defendant present place at the time and offenses,
alleged you him must find
guilty,” fundamentally rendered the trial
unfair specific or violated a constitutional Indeed,
right. requested charge would nearly nothing charge
have added
given.
VI. above,
For the reasons set forth the Or- dismissing
der of the District Court *2 Curry, Atty., Tim Crim. Dist. judgment Frederick of the district court that we Worth, Schattman, Tex., M. Fort for Tar- now review. County Hosp. rant Dist. background, The factual as recited Williams, Westfall, Fowler, Bailey, Lee & panel, follows: *3 Keith, Tex., Dallas, Stern, for Kevin J. et Hospital operated John Peter Smith al. by County District, Hospital the Tarrant Law, Snakard, Gambill, & Brown Alan agency. a Texas state Before Worth, Tex.,
Wilson, George Fort for J. hospital permitted bylaws physician a Luibel. be a member of its staff only he was a County
member of
Tarrant
Medical
Society, an association which admitted
only allopaths.
In
this was
changed
require graduation
with a
CLARK,
Judge,
Before
Chief
and GOLD-
(M.D.)
degree of Doctor of Medicine
from
BERG, GEE, RUBIN, REAVLEY, POL-
by
school accredited
the Council on
ITZ, RANDALL, TATE, JOHNSON, WIL-
Medical Education of the American Medi-
GARWOOD, JOLLY,
LIAMS,
HIGGIN-
cal Association. The Council accredits
BOTHAM, DAVIS,
JONES,
HILL and
Cir-
only allopathic
only
schools
allopath-
and
Judges.
cuit
degree;
ic schools award the M.D.
osteo-
pathic
degree
schools award the
Doctor
HIGGINBOTHAM,
E.
PATRICK
Circuit
Osteopathy (D.O.).
requirements
Judge:
hospital
admission
staff were
today
We reaffirm
the settled
again changed
requirement
in 1979. The
agencies may
constitutional rule that state
deleted,
degree
of an M.D.
was
in-
pursue legitimate
by
purposes
any means
stead,
required
staff members were
to be
having
conceivable
relationship
rational
by
licensed
the state and to have two
purposes.
passes
those
A decision that
years
post-doctoral training
pro-
in a
constitutional muster under the rational-ba
gram
by
accredited
the Accreditation
equal protec
sis test does not violate the
Committee
Graduate Medical Edu-
[on
simply
tion clause
because it violates a
Accreditation Committee is
cation]. [The
state anti-discrimination statute.
affiliated
with
AMA and accredits
programs
aligned
institutions
I
allopathic
with
medicine.]
osteopaths
privi-
Five
were denied staff
leges
by
Hospital,
John
Smith
Peter
parties stipulated
that the sole rea-
operated
by
County
the Tarrant
plaintiffs
privi-
son the
were
staff
denied
District,
Hospital
agency,
Texas
leges
they
was because
had trained in
they
because
had
in an osteopathic
trained
osteopathic-institution programs [rather
allopathic
pro-
institution
not in an
programs
by
than in
approved
the Ac-
gram. Their
upon
attack
constitution-
Committee]____
creditation
ality
by
of this exclusion
sustained
In
Texas state
district court after a trial on the merits.
enacted the Medical Practice Act and de-
court,
F.Supp.
The district
held
prohibit
clared its intention “to
hospital
unconstitutionally
had
de-
[state-
agency hospitals
differentiating]
from
osteopathic physicians equal pro-
nied the
solely on the basis of the academic medi-
thereby
tection under the law and
violated
degree
by”
physician
cal
held
a licensed
judgment
fourteenth
This
amendment.
determining
appoint-
medical
by
panel
was affirmed
staff
divided
of our
art.
judges
court. A
ments.
of the
of this
[Tex.Rev.Civ.Stat.Ann.
A,
1.02(9) (Vernon
banc,
4495b, Subchapter
court voted to
case
consider the
en
§
thereby vacating
opinion.
Supp.1984).]
recognizes
The Act
that all
panel
It is
prohibition
osteopaths
same
to Texas’
their
physicians are examined
examination,
board,
use
the initials “M.D.”
pass
same
standards, “irrespective
same
meet the
binding
Being
prece-
in its view free of
degree.”
of academic medical
[M]
dent, the
court concluded that
district
there
Act, a
to be licensed under the
order
county hospi-
for the
was no rational basis
an
graduated
must have
from
physician
osteopaths
allopaths and
differ-
tal to treat
school,
approved medical
but both
light
contrary
particularly in
ently,
by the Accreditation
schools accredited
legislature,
Texas
ex-
decision
by the
Committee and those accredited
Medical
pressed in
Texas
Practice Act.
Osteopathic Association are
American
Accordingly, the court struck down the
approved.
rule as a
hospital’s
violation
case,
plaintiffs in this
Dr. Paul protection clause.
[The
*4
osteopaths,
four other
each of
Stern and
-2-
years
at least
two
whom has had
panel opinion adopted a different
in
post-doctoral training
program
ac-
the
rationale but reached
same conclusion
As-
by
Osteopathic
credited
the American
court.
as the district
Rather than hold
sociation, challenge
county hospital’s
the
Hayman
distinguish
outdated or
Berman
grant
privileges.]1
refusal to
them staff
Maceluch,
panel
and
found “it unneces-
sary to reach so far.”
administration, is
de
whether
rational
so
cisionmaker could have
classified.
-1-
per
equal protection
se
construct
purports not to overrule or otherwise con-
-2-
flict
our
per
analysis
with
decisions
Berman and
is
to
se
said
find its
Supreme
sustenance,
or
part,
Maceluch
Court’s decision
at least in
in Yick
v.Wo
it would
Hayman:
permit
Hopkins,
the conces-
U.S.
6
30
118
S.Ct.
sion,
irrelevant,
(1886).
but find it
that a
220
755
at
& n.
rational L.Ed.
See
F.2d
Wo,however,
or
agency might
support
dis- 8. Yick
does not
Wo,
tinguish
allopaths
osteopaths
between
conclusion. In Yick
a San Francisco
violating
required
without
the fourteenth amend- ordinance
consent from the Board
per
approach,
Supervisors
operate
ment.
one could
Under
se
viola-
before
equal protection
laundry
building
tion of
made of
federal
none-
materials
Department
grounds,
or
The Board
Monell
Social
than brick
stone.
other
Servs.,
in wooden
permits
laundries
U.S.
98 S.Ct.
granted
applicants save
buildings
all non-Chinese
This statement sum-
L.Ed.2d
one,
applicants.
none of 200
Chinese
marizes
results
the Court’s extensive
359, 6 S.Ct.
1066. The Court
118 U.S. at
at
background
of the historical
sec-
review
Wo's
under the
reversed Yick
conviction
tion 1983: federal courts are
afford a
that,
ground
although the
ordinance on
remedy only
discriminatory
for such
en-
neutral,
ap-
facially
it had
law was
been
as
forcement of
laws
violates
deny
so
citizens
plied
as
Chinese
independent guarantees of the fourteenth
362-63,
at
protection of the laws.
Id.
amendment.
at
1067-68.
proper application
A
of Yick Wo will not
case, broadly
principle of the
support
finding
of an
stated,
facially neutral stat
is that when a
facts
case.
violation on the
of this
To the
classes,
administered so as to create
ute is
ad-
extent
has
pass
must
constitutional mus
those classes
it has
point,
confirmed the view
dressed
The court struck it down because
ter.
law
that under Yick Wo state
does not
“hostili
basis for the classification was
sole
rationality
equality
guaran-
define
nationality
... which
ty to ... race
teed
the fourteenth amendment. See
eye
justified____”
law is not
Hughes, 321
Snowden v.
U.S.
64 S.Ct.
at
Its
differs
rule
U.S.
(1944). The
It is
clear
plaintiff’s equal
argument.
legislation
passed
was
was to afford
problem
from
same
The claim suffered
because,
right in
courts
a federal
federal
although
at
there
that in
case
bar:
as
neglect,
prejudice, passion,
by
violated,
reason
showing that
was
was a
state law
otherwise,
laws
or
intolerance
showing
was
violation
there
no
the claims of
might
enforced and
not be
the federal
also offended
rights, privi-
enjoyment
citizens to the
is,
made
the Court
clear
clause. That
guaranteed by the
leges,
immunities
decision was
rationality of the Board’s
might be denied
Fourteenth Amendment
prohi-
legislature’s
by the state
unaffected
agencies.
the state
legisla-
of that decision. Since
bition
have written a
constitutionally
167, 180,
could
ture
Pape, 365 U.S.
Monroe v.
plaintiff
have denied
480,
(1961)
that would
(emphasis
statute
L.Ed.2d 492
nomination,
to do
decision
the Board’s
added),
his
part
on other
overruled
necessarily
equality
were
so in violation of state law was
not shown to have been
enforcement,
also constitutional.
Justice Stone wrote:
discriminatory
violated
equal protection
no
claim was stated:
subject
of the Board is ...
action
[T]he
infirmity
to constitutional
to the same
though
Even
the statistics in this ease
greater
but no
extent than if the action
might imply policy
of selective enforce-
legislature.
were taken
the state
Its
ment, it was not stated that the selection
illegality under the
can
state statute
nei-
deliberately
upon
unjustifi-
was
based
an
ther add to nor
from its consti-
subtract
race, religion,
able standard such as
validity.
tutional
Mere violation of a
arbitrary
other
classification. Therefore
infringe
state statute does not
the feder-
grounds supporting
finding
of a denial
Constitution____
action,
And state
al
equal protection
were
alleged____
law,
though illegal
even
under state
can
Hughes,
Snowden v.
1U.S.
[64
Cf.
no more and no less constitutional
(1944);
S.Ct.
88 L.Ed.
Yick Wo
497]
under the Fourteenth Amendment
than
Hopkins,
v.
by Clark. Chief system government power Our of shared traditionally giv- requires all the deference example per approach se One of how in review. Our lodestar is questions law en rational-basis transmogrify would legislature or what has done springs readily to not the state into constitutional claims bar, fairly to whether the state law had order determine In the case at which involved a F.Supp. differentiating at In prohibition against been violated. See 565 1445-52. precise state clear, "solely law is less federal courts appointments cases where state staff on the in medical greater correspondingly degree by” difficulties would face of the medical held basis academic prone extent be to physician, and would to that more court to en- licensed the district had complex analysis gage error. in a extended and do, purported any allopaths but what rational osteopaths to treatment and might requirement have to do. decisionmaker chosen “not a which has as a founda- may put professional be “lost we tion a reasonable as We maze basis such by,” certainly qualifications compass but we will be and ethical for the common on trespassing good public hospital itself”, state domains. law is of the State or the way by F.Supp. in no demeaned trivialized its at and concluded that the state, present federal, as today status rather than facts different from those exist- part, judiciary, law. The federal for its has ing at the time of Hayman City enough Galveston, law to enforce an- federal without nexing legislation. (1927), new We bodies F.Supp. L.Ed. see will, must, and leave violations of law It only is conceded that the facts allow appropriate to be corrected allopathic osteopathic conclusion that and mechanisms. training programs have similar course re- content, quirements and gradu- and that
IV testing ates face identical and licensing re- Having rejected panel’s per se quirements. We find fault no with the analysis, opinion we undertake a court respect review district in this and we judgment. approve district court’s Because the dis that court’s decision to use the trict court found differences allo rational-relationship between standard review. osteopaths paths agree, and our that are in view We also that the Texas Medical Prac- permit agencies to, though sufficient to Texas or disposi- tice Act relevant of, hospital the granting question differentiate tive of whether there was privileges, staff that court’s conclusion a rational basis for differentiation. unconstitutionality cannot stand. difficulty is that the district court only remaining also concluded that
In the
“[t]he
trial of constitutional is
difference between
and M.D.’s has
sues,
D.O.’s
differing
roles of historical and
simply
philoso
been described
one of
legislative
present conceptual
facts can
dif
phy.”
F.Supp.
question
Our
at 1443.
attempt
ficulties.
need not in
We
this case
whether
could have sanc
distinguish precisely
historical
between
tioned
classification
the Tar-
drawn
legislative
and
facts in the district court’s
County Hospital
deny
rant
without
District
findings:
the findings
however
be charac
ing osteopaths equal protection.
If the dis
terized, the state action in question was
approaches adopted by
medical
tinct
allo
general
constitutional.
distinction be
paths
osteopaths provide
and
a sufficient
legislative
adjudicative
tween
facts is
classification,
such
inquiry
basis for
our
important
helps
nevertheless
because
Guste,
Depot,
ends.
Home
Inc.
why
show
district
ought
court
to have
Cf.
(5th Cir.1985).
F.2d 616
asked
there was
conceiv
whether
County
Hospital
able basis for
Tarrant
After a court cian the bench the district of clinical tech- knowledge Hospital found that the District’s different substantive RUBIN, Judge, the B. ñiques, judgments also his as to ALVIN Circuit with but of, for, need and nature treatment. That CLARK, Judge, POLITZ, whom Chief skill, experience, perception of of born JOHNSON, TATE, Judges, join and Circuit nature, as human and intuitions to what dissenting: patient, jumps a the is best for over prevent The refuses to a many knowledge in “scientific” and voids agency discriminating against from state from separates the scientist the doctor. osteopathic physicians in allopathic favor of that two schools of medicine It follows of physicians in defiance state law. In so approaches, differing even advocate doing, disregards plain language it both the they advocacy in of if differ their of the fourteenth amendment and the his- approaches to the differing philosophical enactment, its toric reasons for for the realities, present differ- same scientific a forbids, equal protection clause and was legislature may without ence that a note forbid, purposefully intended to a state to one, discriminating against unlawfully arbitrarily deny persons to one class of preferring one over the other. protection of a state that it law affords persons. to another class sum, the state has demonstrated licens- relationship rational between its addition, majority, The accords to the real, debatable, ing categories conclusions of a board directors possessing differences between doctors hospital district the same deference it ex- degrees. That all that M.D. and D.O. is legisla- to the a state tends enactments of requires. the Constitution presumptive It ture. attaches same (citation omitted). every validity at 1066-68 Id. decisions agency, petty jur- however or limited underlying The reasons our deci isdiction, that is extended to formal enact- apply also to sion the case Maceluch reasoning, ments of state statutes. In so We that it rational for the bar. held majority disregards findings of fact steps to to ensure that medical take directly it contrary to conclusion reach- easily distinguish could between consumers es and fails to heed mandate of rule allopaths osteopaths. It is no less 52(a) of the Federal Rules of Civil Proce- state, in the of its rational for exercise dure, sidestepping appli- the rule’s adroitly power, police to make the same choice that by labeling cability the facts on as permitted give to its citi review Maceluch “adjudicative.” than “legislative” zens. Nor does choice become less rather I agency, must, therefore, it is respectfully rational when made dissent. County Hospital as Tarrant Dis such “[Tjhose challenging legislative trict. I. must convince the court that
judgment any The amendment forbids fourteenth legislative facts on which classification any “deny person within its reasonably apparently based could governmental jurisdiction true conceived to be The amendment was not needed to
decisionmaker.” Minnesota Clover laws.” Leaf 456, 464, Co., provide equal protec- Creamery U.S. states ensure (1981) 715, 723, (quoting L.Ed.2d 659 laws, for the text of the tion of federal Bradley, Vance original makes federal law the Constitution (1979)). land, “any Thing supreme law the in the case, legislative in this facts involved or Laws State to Constitution Maceluch, conceivably, if not indubita notwithstanding.”1 Contrary bly, true. in- needed and was protection clause was that the states afford tended to assure judgment district court protection of their persons all REVERSED. accordingly Const, VI, 1. U.S. art. cl. 2.
1062 certainly continues. “While one main source of the Court own laws. view, perhaps leading the one—was the Ku Pape, for Monroe v. it takes this evil— Klux states, Klan,” remedy the “the 1983: of section said remedy against it created was not a or its abundantly the clear that one reason It is against represent- members but those who passed was to afford a legislation was capacity ing a state in some were unable because, right in federal courts federal law____ unwilling or to a state prejudice, passion, neglect, by reason of enforce was, said, quarrel the There no with otherwise, or laws intolerance state laws on the books. It was their lack and the claims of might not be enforced of of enforcement that was the nub the enjoyment rights, privi- of to the citizens Howard, difficulty.”5 As Senator one of guaranteed by the immunities leges, and amendment, stated, sponsors might be denied Fourteenth Amendment purpose equal clause was agencies.2 by the state prohibit to the states from upon single seizes word denying [any person] equal protec- to from passage in this Monroe “and” tion of the laws This State. of that federal then asserts legislation abolishes all class [clause] en- only when a state’s failure to denied away injus- the States and does with the its laws also constitutes a denial of force subjecting persons one tice caste immunity or secured right, privilege applicable a code not to another.6 This is an unwarranted and Constitution. adoption reading. The fourteenth Before fourteenth unprecedented amendment, required forbids the states either the states were amendment provide either due or enforce law which shall Constitution “make process equal protection. citi- or The Bill of abridge privileges or immunities of Rights, “deprive of the United States” or to Chief Justice Marshall wrote zens 1833, life, solely any person liberty, property, or was “intended as a limitation power by govern- process deny of law” or “to on the exercise of without due States, appli- and is not any person jurisdiction ment of United within legislation to the of the states.”7 protection of the laws.” The sentence cable amendment, prohibit- to The thirteenth which Pape from Monroe v. was not intended servitude, involuntary adopted rights legislation of the civil ed had been limit the shield responded by equal pro- that denies in 1868. Some states enact- to state action both discriminated, explicit- citizenship privileges ing immu- laws that either tection and slaves, Indeed, continues, ly implicitly, against the former as that nities. grandfather example, by the use of “It is no answer that the State has a law Many appar- give relief. The clauses. states also enforced if enforced would ently discriminatory in a man- remedy supplementary neutral laws federal explicitly crimes that were forbidden remedy____”3 ner: by state law were condoned when commit- unavailability of state “It was against ted whites blacks. remedies but the certain states failure of discrimination, To combat both kinds of the laws with an hand to enforce enacted, Congress over the veto of Presi- powerful momentum be- that furnished ” Johnson, bill,’ rights Andrew the first civil Pape4 the ‘force dent hind Monroe 473, 480, Fairman, 6. 6 C. History Supreme Court 2. 81 S.Ct. added). (1961) (emphasis and Reunion the United States —Reconstruction added). 1864-88, (1971) (emphasis at 1925 at L.Ed.2d at 503. Id. at Mayor City 7. Barron v. Council Balti- 174-75, 4. (7 Pet.) more, added). U.S. 8 L.Ed. (1961) (emphasis L.Ed.2d L.Ed.2d at 499 Id. at (added original).
1063
however,
doubt,
interpreted the equal
was
whether
the
laws. There
adopt
Congress
power
had
to
these
prohibit
the
to
protection
discriminatory
clause
laws,
given
had
the
and President Johnson
application
judge
of
law
who
legislation8
the
unconstitutionality of
because,
jury
from a
in
excluded blacks
“Immediately
for his veto.
one reason
part,
authority
“outside his
in
was
and
fourteenth
pressing to [the
amendment]
spirit
violation of the
of the
direct
State
provide
the desire to
a firm
sponsors was
gave
That statute
him no
statute.
authori-
already
the
basis for
enacted
constitutional
selecting jurors
ty,
...
to
when
exclude all
legislation.”9
Congress
rights
civil
merely
they
men
because
col-
colored
were
addition,
sought,
to amend “the Constitu-
in
Such an exclusion was not left
ored.
with-
beyond
repeal
accomplish-
to
the
place
tion
12
in the limits of his discretion.”
simple majority
of
in a future Con-
ment
por-
that case involvedthe criminal
While
10
gress.”
Rights
tions of the Civil
Acts and racial
equal
major purpose
pro-
of the
While a
discrimination, its rationale
was
based
prevent
to
discrimina-
tection clause was
later-developed
scrutiny
on
differential
know,
blacks,
not,
against
it
as we
was
tion
theory
simple
but on the
thesis that was
requiring equal
of
to
treatment
confined
equal protection for a
a denial of
equal protection of
for it
the races
assures
against
agent
to discriminate
a class of
Thus,
pur-
“persons.”
to all
the laws
in
people
Similarly,
violation of state law.
equal protection clause of the
pose
dicta,
sitting in
a circuit court
Alabama
amendment was to forbid both
fourteenth
said
United States
Hall:13
unequal
kinds of
state action:
enact-
amendment not
fourteenth
[T]he
discriminatory
and the dis-
ment of
laws
making or
prohibits
enforcing
of
criminatory administration or enforcement
abridge
privileges
shall
of
laws which
laws
were not themselves discrimi-
of
that
citizen,
prohibits
but
the states from
natory.
persons
jurisdic-
denying to all
within its
however,
jurisprudence,
has
been
equal
tion the
of
laws.
entirely with discrimina-
concerned almost
Denying includes inaction as well as ac-
is,
laws,
determining
tory
that with
wheth-
tion,
denying
equal protection
nondiscriminatory on their
laws
are
er
protect,
the laws includes the omission
discriminatory
fact and whether
face
pass
as well as the omission
laws
expressly drawn
classifications
protection.
con-
constitutional. These cases
laws are
writ-worthy by
tinue
considered
intentionally
A state
treats
official who
Court.
people differently in the
classes of
face
two
implies
law
treat-
of a valid state
legal
The fact that the
contest has been
guaran-
ment violates
not, how-
in this area should
concentrated
ago in
century
Hop-
A
Yick Wo
tee.
ever,
neglect
cause us
consideration
kins,14
unconstitutional the
the Court held
“majestically
plain, but
the amendment’s
municipal
ordinance
administration
unconfined,”11 language.
when
persons,”
particular
denied “a
class
purpose
fourteenth
history and
owners,
laundry
permits that
every justice,
were
were known to
Chinese
amendment
Service, supra
Leg-
Congressional
Schnapper,
11.
note
See
Action
Research
8.
Affirmative
Amendment,
History
at 1471.
Fourteenth
islative
(1985).
Va.L.Rev.
785-86
Virginia, 10 Otto
12. Ex Parte
added).
(1880) (emphasis
District’s action a equal protec- denial of constitutional violation” unless “the selec- tion. deliberately tion was upon unjust- based an [but, suggest, ifiable standard such as I not majority opinion The upon relies a race, religion, limited or arbitrary other lengthy quotation to] from Snowden v. Hughes.15 But it fails to include another classification.”21 statement of the Snowden court that di scope applicability rectly conflicts with the rationale the ma are, course, clause determined jority opinion espouses. At the outset of by validity federal standards. The equal protection its discussion of the clause being Texas unchallenged, statute discrimi- Snowden, Court said: nation in its administration violates the fed-
The unlawful administration eral constitution. face,
officers of a state statute fair on its
II.
resulting in its unequal application to
alike,
those who are entitled to be treated
majority opinion
starts with a bland
equal protection
not a denial of
unless
statement of law: rational state action does
present
there is shown to
be
in it an
not violate the
clause sim-
particular
face of the action
sic evidence
itself____”
another not to be inferred from the action
sign to favor one individual or class over
tinued,
“This
discrimination.16
element
[discrimination]
“or it
class or
showing
may only
intentional or
Snowden himself did not
taken with
person,”
a discriminatory de-
may appear
be shown
the Court con-
respect
purposeful
on the
extrin-
to a
persons
action and whether a subordinate state
law and discriminates
there
agency
uous.
ply
nation statute. The action of the Tarrant
County Hospital District is not so innoc-
because
questions put by
inis
Stating
acts
while
fact a rational basis for the state
rationally
favoring
violates a state anti-discrimi-
the rule in this fashion
against
when it defies state
this case: whether
another.
one class of
begs
qualify
equal protection guarantee
for the
agency may,
The state or a state
without
allege
purpose-
because he did not even
denying equal protection,
“a
make a distine-
15. 1,
397,
(1944).
Id.,
tion
protection.
antee of
lawful
making
the distinction is
purpose
rationally
related
and the distinction
“seeming logi
concedes
however,
Once,
purpose.
legitimate
analysis by
of this
first
cal force”
what
affirmatively
adopts
re-
a statute
the state
year
recognize
law students will
as the
persons
be
classes
quiring
two
slippery slope argument: to accept the the
alike,
agency may
de-
consequences.
might
treated
lead to
sis
dread
Vio
that,
lawfully
rationally
de-
equal rights
cree either
lation of
amendment
says, it is still
might
federal constitutional
spite what
violation.
contention, however, portends
suggest
That
no dis
I
that it is
going to discriminate.
Purposeful
unlawful,
aster.
discrimination
a state
arbitrary
;per
but
se
persons
against a class of
*13
in order
rational,
agency
a state
hence not
for
capricious,
to favor another class
dis
deliberate
create a
agency intentionally to
discrimina-
(or
regard
per
of a
state
valid
law—even
forbidden
a valid
tory classification
especially)
equal rights
haps
an
law—con
state law.
equal protection.
a denial of
stitutes
grant
County
did
Tarrant
The state
of
County Hospi-
The action
the Tarrant
consider,
any
Hospital District
discretion to
merely a
tal District was not
of
violation
qualifications,
respect
physician’s
with
a
might
state law that
be
in the
remedied
physician's
de-
the nature of the
medical
state courts.
It
also a
violation of the
case,
gree, allopathic
osteopathic.
This
court,
A federal
Constitution.
district or
therefore, presents
distinguish-
a situation
appellate,
ignore
duty simply
cannot
found in “selective
typically
from
able
alleged
because an
constitutional violation
cases,
In such
state
enforcement” cases.
may
contrary
also be
to state law or be-
agencies,
as
state
such
law often accords
require
claim may
cause the constitutional
boards,
liquor licensing
great
a
zoning or
in a
engage
complex
the court “to
and
This case
deal of discretion.
is different.
analysis”24
“typically
of a
extended
broad
grounds, the
prevail
on
To
vague
and
state law.”25
(1)
plaintiff
only show
he is
here need
persons
class of
who have
member
III.
against on
discriminated
the basis
been
majority opinion
pre-
The
rests
the
on
class; (2)
membership in that
mem-
their
Hospital
mise that the
District acted ration-
classes,
similarly
other
bers of
otherwise
pursuit
legitimate
pur-
ally in
of a
state
situated,
differently;
have
treated
been
however,
pose.
purely
Rationality,
not a
(3)
discriminatory
treatment was
judgment.
subjective
“Rational” means
purposeful.
on reason.” Reason rests on facts.
“based
was,
Hospital
The action of the
District
as
County Hospi-
The actions of the Tarrant
found,
district court
unreasonable.
discriminatory
patently
District were
tal
it,
testimony adduced
Based on
before
stat-
taken in violation
a state
and were
conjecture
possible
reasons
merely on
denied
discretion.
Its ac-
ute that
it
action,
the court conclud-
for
District’s
obviously
not further
tions
did
what
that,
purposes
prac-
of admission to
ed
legislature
determined to be a
had
significant
hospital,
in the
no
differ-
tice
pur-
The
legitimate
purpose.
District
post-graduate
ences existed between
protec-
posefully
osteopaths the
denied to
allopaths
training
osteopaths.
granted
allopaths.22
tion of the law it
notes,
pro-
doing
plaintiffs
majority opinion
it
the district
so
denied
As the
Hospital
dif-
law,
found that the
District’s
and this
turn consti- court
tection of
opinion, p.
Majority
24.
Virginia,
1059 n. 2.
Parte
10 Otto
22.
ExCf.
ferent treatment but are in- only paths was not founded on “reasonable stead determine whether there is professional quali- “any and ethical the [agency’s] basis such as conceivable basis for good public implicit legislative judgment.”29 agen- fications for the common conceded,” cy’s hospital having up, itself.”26 “It is mind been made or the neither the states, agency the facts allow nor “that the court is to confused facts, allopathic and oste- and the only the conclusion that court is to evaluate agency lawyer’s post-hoc suggestion opathic training programs have similar content, might conceivable and that basis that have been in requirements course agency’s testing mind—even if it was not. graduates face identical and licens- adds, ing requirements.”27 And “[w]e findings Even factual when are of consti- court find no fault with the district importance appellate tutional and an court Nevertheless, the ma- respect.”28 52(a), appellate is not bound rule opinion ignores all of these facts on jority court undertakes to the facts review inde- that, might if the val- basis pendently. Court and this idly against osteopaths, have discriminated hypothesize court do not but determine the Hospital may District do so—without facts from the evidence.30 regard to the facts. repeatedly rejected sugges- We have majority opinion not even men- does tion that the actions of a federal adminis- *14 52(a), requires tion Fed.R.Civ.P. agency might trative be validated on the by are the facts found a district court to be developed by basis of rationalizations coun- accepted appeal clearly on unless errone- presume sel.31 While we valid and accord there ous. Whether is rational basis deference to determinations made state treating differently persons two classes of legislatures,32 part we do so at least in must, submit, I turn on the facts distin- highest because the is the guishing these classes as shown law-making agency, by a elected democrat- majority justify evidence. seeks to its process, ic in enacts statutes a deliberative disregard of the evidence and the fact find- manner, and its enactments become law ings by asserting validity that the only approved by highest the state’s ex- against osteopaths is discrimination to be ecutive or reenacted a substantial ma- by something “legisla- determined called jority his veto. In New over Orleans v. “adjudicative” tive” facts rather than or Dukes,33 this deference was extended to a facts, “legislative” ordinance, historical facts. But it municipal adopted legislative in out, are, They fashion, turns are not at all. in city’s objective facts in which the in instance, assumptions up- enacting clearly utilized the ordinance was identi- disregard agency’s hold the state fied. But as Justice Powell said in dissent- apparently ing facts. District courts are not to from the Court’s in Schweiker Wilson,34 legis- take evidence when the actions of inferior v. “The deference to which Dist., See, County e.g., Hosp. 26. Stern v. Tarrant 31. United States v. New Orleans Public 565 Service, 422, 1440, (5th Cir.1984). F.Supp. 723 F.2d 428-29 1454. See, Guste, e.g., Depot, Inc. v. 32. Home 773 F.2d Majority opinion, p. 1060. 27. (1985). 616 p. opinion, Majority 1060. 297, 304, 2513, 2517, 33. 427 U.S. 96 S.Ct. 49 511, (1976). L.Ed.2d 517 Majority opinion, p. 1060. U.S., Inc., 221, 243, 1074, 1087, Corp. 30. Bose v. Consumers Union 34. 450 U.S. 101 S.Ct. 67 Regents (1981); the Uni- L.Ed.2d 203 466 U.S. 80 502 L.Ed.2d cf. Bakke, 265, 309, Diamond, versity (1984); v. U.S. Jones v. 438 636 F.2d 1370 California 2733, 2758, (1978); City (5th Cir.1981); 783 see also Cousins S.Ct. & n. 7 Dist., Council, School No. (7th Cir.), cert. de see also Kramer Union Free 466 F.2d 1886, 1895-96, nied, L.Ed.2d (1969) (Steward, dissenting). J. L.Ed.2d discriminating against osteopaths conflicting inter- did not accommodation lative part upon princi- provision rests constitutional ests is entitled violate the Texas majori- political process of our ple that any preference given by that forbids “be democracy responds to the wishes of tarian law to schools of medicine.”37 The people.” No similar deliberations found that state constitutional appointed agencies and no exacted of qualifi- directed limitation was presumption of constitu- similar deferential cations of those to be admitted to medical Deference tionality attends their actions. practice in the state and not limit did con- hardly due to the of this extreme sort practitioners’ qualifi- sideration medical board, hospital decision of practice hospital.38 in a cations allopathic physicians, members are whose Hayman significant changes Since have evidence, hearings or to ex- made without education, training, occurred and li- Instead, osteopathic physicians. clude censing osteopaths Texas law. me, such self- seems to we should view arbitrary That state action was not under serving with at least some mea- decisions existing century ago facts a half does not skepticism. sure of today. make it rational The decision of a said, legisla- Powell has “when a Justice in Berman v. Florida panel of this court suggested only by the purpose tive can be Center, Medical Inc.39 is no more confin- lawyer litigat- ingenuity government of a ing, private hospi- for that case dealt with a statute, constitutionality ing the of a tal and did not involve state action. may presented not so reviewing court legislative policy as its ab- much with a 35 Moreover, IV. at least one fact that sence.” ig- undoubtedly legislative cannot be The fourteenth amendment forbids legislature has de- The Texas state nored: agencies to discriminate creature, the Tar- unlawful what its clared against any persons. class of It is a bul- District, County Hospital has chosen rant against against prejudice, wark state action *15 decisive, it is a if this is not to do. Even The that condemns rational basis. without determining that must be considered fact adopted only to assure not that clause was actions rationality of the District’s both nondiscriminatory enact laws but states its actions are to be accorded and whether equally they also that administer state law legislature’s given deference a state opinion refuses to fairly. The enactments. deliberate mandate of the Constitu- apply the literal majority opinion puts the Constitu ignores history led to its tion and that every agen mercy petty tion at the bigotry of an enactment. It condones the thesis, cy lawyers can submit hospital district allopathic-dominated evidence, unsupported by factual by either refuses to be bothered might support opin constitutionality. constitution, law, or the the federal supported by the ion cannot be facts. Hayman City Galv decision eston,36 the kind here for evidence in the record before that presented was not
Court. opinion Hayman, moreover, rest- part on the conclusion
ed at least Hospital Board
the action of the Galveston
Wilson,