Roxanne Jones, Mary Kyser, Perry Varner and Velmer Taylor, Plaintiffs v. Board of Commissioners of the Alabama State Bar

IV. con- appellants’

Having found no merit

tеntions, granting of the district court’s imposition of civil summary judgment and Hatchett, Judge, dissented and

penalties is opinion. filed AFFIRMED. JONES, Perry Mary Kyser, Roxanne Taylor,

Varner Velmer

Plaintiffs-Appellants,

BOARD OF COMMISSIONERS OF BAR, al.,

ALABAMA STATE et

Defendants-Appellees.

No. 83-7004. Appeals,

United States Court of

Eleventh Circuit.

July

Rehearing Rehearing En Banc Sept.

Denied

997 of of the Ala the Board Commissioners members, plaintiffs, Bar and its bama State here, declaratory in appellants seek and § junctive relief under U.S.C.A. § Appellants chal and 28 U.S.C.A. 2201. lenge as of the Fourteenth violative applicable certain rules in the Amendment of the Alabama bar exami administration nation, limiting to including the rule five that an can the number of times for the examination and the rule sit the examination granting to those who fail limited to review their and papers.1 passing other should be reluctant to dis Courts complaint to state a claim miss a for failure Chestnut, Sanders, Sanders, granted. A upon relief can be com Mary which Rose Ala., Selma, plаin- Turner, plaint should not be dismissed on this & Sanders “ appears beyond ground ‘unless it doubt tiffs-appellants. prove no set of facts plaintiff that the can Ala., Jr., Mobile, William Champ Lyons, support his claim which would entitle Ala., Morrow, Jr., for Bd. Montgomery, H. Quality him to relief’.” Foods de Centro of Bd. individual members and of Comms. America, Agribu v. Latin American S.A. Clark, Redden, Redden, Mills & L. Drew Corporation, Development siness Ala., Terry Smyly, R. Asst. Birmingham, (11th Cir.1983)(quoting Con Ala., Gen., Ala. Montgomery, Su- Atty. 41, 45-46, Gibson, 355 U.S. ley v. and individual Justices. preme Court (1957)). 99, 101-102, The dis 2 L.Ed.2d in this case concluded that be trict court prove facts plaintiffs could yond doubt relief on entitle them to that would appeal challenges the claims. This KRAVITCH, and JOHNSON Before only on three of the court’s decision district HATCHETT, Judges. Circuit agree upon We grounds relied below.2 of the district court on the conclusions JOHNSON, Judge: affirm its grounds and therefоre all three appeal from the decision This is decision. court, dismissing plaintiffs’ com- district of the Rules challenge certain Appellants a claim plaint for failure to state to the Alabama State Governing Admission In their ac- granted. relief can which challenge on Specifically, Supreme Bar.3 against the Court tion Alabama equal protec process and against due and substantive justices of the Court and only an aver- must score appeal the examination also in this all' of did not raise (2) points, age the claimed violation of 70 and presented the dis to and decided the issues allegedly rights defendants’ due questions In addition to trict court. scoring arbitrary (1) method addressed, unscientific considered: the district court rights multistate equal protection violation of the claimed only elect to retake examinees who examination, accompanying notes supra text 2. See note 1 portion the bar the multistate 4-6 score ground individuals must that these on the infra. multistate median on the at least the national Governing to the Ala- examination, Admission re The Rules who elect to while examinees adopted the Board of bama State Bar were only essay portion of the examination take State Bar and the Alabama Commissioners of points and examinees must score of Alabama. approved essay portion of the multistate and the take both D,4 37 L.Ed.2d 63 which limits to U.S. Rule IV grounds Illinois, Stanley (1973); applicant can of times an number five the (1972), in sit for the the Court struck down as violative grounds op which procedural process statutory presump- conclusive D Rule IV and Rule VI together of eration necessarily and tions that univer- 6),5 were 1(3) (unnumbered paragraph which that were em- sally true but nevertheless failing examina write grants to those who fact ployed to answer as to all individuals right to review their limited papers tion by statutory scheme in questions raised the papers. Appel passing papers and other Appellants argue that the question. D on challenge Rule IV lants also question attorney competence of fact impact disproportionate on that its ground for all individuals answered blacks, in the context of a occurs which person that a who fails the bar examination intentional dis state-sponsored, history of it, may may five times not retake and thus elementary against blacks crimination bar, not become a member of the even education, as well as Ala secondary and universally though necessarily it is not and schools, principles of violates law bama’s that fail the examination true all who will discuss these equal protection.6 We incompetent attorneys. five times would be arguments turn. below, do not For the reasons set forth we presumption agree that the irrebuttable I. applicable in this case. doctrine is argue that the rule limit Appellants Court in LaFleur held ing the number of times one can sit un Supreme to five The examination violates the Alabama bar constitutional rules of the Cleveland Coun for ty County because it creates an irrebutta and boards of edu Chesterfield pregnant incompetence oper of that cation that teachers presumption ble work, respectively, the еnd who fail leave at of against ates all those rely pregnancy. fifth month of Appellants five times. fourth and 644, decisions, The asserted line of U.S. at 94 S.Ct. at 798. Court mandatory Board Education rationale for the termination Cleveland including of LaFleur, 791, physical necessity keeping of 94 S.Ct. 39 rules was U.S. Kline, the classroom.7 Id. (1974); out Vlandis v. ly unfit teachers of L.Ed.2d 52 any essay provides: the examinee will 4. Rule IV D of copy ques- be entitled to receive a of the shall limit times on the There be a of five tion^), an- may of answer and the model applicant exam- number times an his/her of Bar; swers), Headquarters ined provided admission to the Alabama State and to examine at Bar for however, applicant top papers particular three on that examina- failed the examination two times shall not be permitted tion. be- to sit for another examination (11) expiration persons fore the eleven of months after four black who have 6. are preceding An graduated seek to become from law school and who has failed an two times Only Alabama State Bar. two members of the evidence, give satisfactory or before Varner, must on Perry appellants, the four of applicant applies the date the to be re-exam- Law, Mary graduate College of Boston ined, prep- that has done additional School, graduate Kyser, Law a 1978 of Howard aration, study, additional tutorial failed the bar examina have taken and otherwise, subject subjects upon or Thus, only Kyser five times. Varner and which he was unsuccessful. standing presented to raise the issues added). (emphasis Village Arlington Heights appeal. See Metropolitan Housing Development Corp., 429 1(3) (unnumbered 6) paragraph pro- Rule 5. VI 555, 560-61, 252, 260-61, 5 97 S.Ct. vides: (1977). L.Ed.2d (60) sixty days Within after the announce- results, examinee shall ment of the the assert- Another rationale for the rules was 7. examine own be entitled to his/her maintaining continuity of ed purpose state interest Headquarters the State Bar for the accepting the va- ascertaining grades classroom instruction. While were cor- transcribed interest, lidity rectly, upon payment per Court held $5.00 section of this state Recognizing declared wards of the state. 405 U.S. at at concern, 649, 656-57, 1211, 1215-16. state’s the Court at validity of the The presumed as a fathers down the law all unwed were struck rules nonetheless parents. creat- unfit 92 S.Ct. at process because at violation of due every presumption that ed “a conclusive fully distinguishable cases are These fifth or teacher who reaches pregnant LaFleur, the case at bar. Vlan in- pregnancy physically sixth month dis, Stanley, the state raised a fact continuing,” capable id. question physical capability, residency, — large showing that 798, despite evidence fitness, parental respectively —and fully teachers were pregnant numbers question statute then answered continuing longer work than the capable of individual, denying each Id. at 94 S.Ct. at rules allowed. present individuals to evidence county concluded applicable in cases. question By their own phys- fact the boards, raising question, a contrast, ques the state here raises a fact teachers, pregnant and ical capabilities competency practicе to law—and tion— question all individ- answering the for then up gives opportunities individuals to five to presumption that uals a conclusive with competence. adopting their In prove bar ‘necessarily universally was “neither [nor] requirements, including the admission bar process. true’,” principles of due violated examination, adopts the ‍‌‌‌​​​‌​​​‌​​​​‌​​​​‌‌​​‌​‌​‌​‌‌‌​‌​‌​‌​​‌‌‌​‌​‌‍state effect a Vlandis, 412 U.S. at (quoting supra, Id. presumption incompetence, rebuttable 452, 2236). at 93 S.Ct. applicants opportunities to affords five re Vlandis, presumption by passing struck Similarly, in the Court but presumption essentially adopts violative and then down a conclusive as as those fail statutory a definition of fact as to individuals who of due university tui- five it formerly to fix examination times residency used state what 453, practice presumed, incompetency 412 U.S. at 93 S.Ct. at their to tion rates. held law.8 2237. The Court that Connecticut once claim to concerned could not at argue Appellants that the state violates deny residency and at time the same ques- process because it raises the fact residency meet seeking to one to its test of all tion whether who fail the bar examina- bearing show all to factors competent practice times are to tion five 452,

that at issue. 93 S.Ct. law, question then it answers individuals, do fail Stanley, negative for all who Finally, in the Court found vio- five times, providing opportunity process an that without lative of due Illinois statute father, Appellants’ in an proof an unwed the death individual case. denied to after mother, hearing pa- is misdirected. The state does to determine focus not fails applicant his whether a bar rental fitness before children could be ask right relationship has a to no between the he or she retake examination rational existed mandatory leave interest. rules and this state number of times. 517 F.2d an unlimited 643, S.Ct. at deciding right 414 U.S. at 798. In that the to retake the protected adequately an exami- incorrectly assert that the Eleventh burdening unduly without nee’s interest state, recognizes presumption that made that the Court the statement "unless competent practice the bar are to law rebutted, a bar and until failure on requires that this Court the state to rebut stigmatize ‘incompe- not an individual as does deny presumption applicant if it is to an admis merely indicates that he did not tent’ dem- Appellants’ bar. is based on sion to the error particular on a competence onstrate minimal reading Vickery, Tyler their of dictum Id. at 1104. This dictum examination.” falls 1089, (5th Cir.1975), holding applicant of a a bar far short is 2660, (1976), 940, U.S. 49 L.Ed.2d 393 competent practice presumed law unless binding upon See note 11 decision this Court. presumption state rebuts that with evidence of Tyler, the text a decision discussed in infra. accompanying Moreover, preclude incompetence. it does not infra, 11-12 Court held legitimate pur rationally related to a state Kotch v. Board River Pilot Commis of pose, and hold that it is so related. we sioners, 552, 910, 330 67 91 U.S. S.Ct. L.Ed. Appellants argue important (1947)). that the lib- 1093 Other circuits that have con high- erties involved here entitle them to a that, question sidered the have concluded scrutiny equal protec- er under the level protection analysis, equal rational basis re than mere clause rational basis review. appropriate view is for classifications af They assert that have a fundamental fecting applicants for admission to the bar. take the bar examination and to See, Givan, 495, e.g., Poats v. 651 F.2d 500 law, practice and that classification (7th Cir.1981) curiam); 12 (per Younger n. rights constitutionally that affects these v. Law Colorado State Board Examin permissible only if it is the least intrusive ers, 372, (10th Cir.1980); 3 625 F.2d 377 n. achieving means of compelling state in- Tauro, 798, 470 F.2d 800-01 Lombardi v. terest. (1st Cir.1972), denied, 4 412 n. U.S. 919, 2734, applied (1973). Court 93 37 L.Ed.2d 145 strict S.Ct. scrutiny analysis statutory join classifica- in that We these courts conclusion. LaFleur, 9. rejecting presumption holdings doc extension of the Vlandis irrebuttable challenge limiting (citing Weinberger Salfi, Stanley. trine in a to Colorado’s rule Id. v. 422 749, 772, 2457, 2470, applicants the number of times can sit for the 95 S.Ct. 45 L.Ed.2d (1975)). convincing bar the Tenth Circuit took We do not find this a anоther 522 Younger approach. denying application See Colorado State Board basis for conclusive Examiners, doubt, (10th Cir.1980). presumption Law F.2d 372 doctrine. No numerous supported The Court there stated that was not convinced decisions it factors of the school presumption adopt requiring that a conclusive was involved in boards in the rule LaFleur specific question pregnant the case because no fact was teachers to leave work at a certain conclusively point pregnancies. identified and then determined. in their The Court neverthe- Rather, application Id. at 378. the Court said the case less did not find this an obstacle to general policy,” presumption involved "a classification of the conclusive doctrine. More- over, may undergird "numerous factors the line it seems clear here that the raised [that] state has resolution, (citing Mogle question competency drawn the Rule.” Id. v. Sevier a fact 478, District, (10th County seeking School 540 F.2d of individuals to become members of 1121, Cir.1976), cert. 429 U.S. 97 S.Ct. the bar. The difference is that in this case the (1977)). fact, gives The Court decid state individuals an —in application presump opportunities compe- ed that of the conclusive five tence, demonstrate their —to judgment adopting pre- tion doctrine to invalidate the overall expressed instead of a conclusive sumption applicable in the rule would be an unwarranted all. lim- Appellants thus maintain that the rule analysis requires thus protection Equal iting to consider whether five the number of times one can in this case challenged here examination has no rational the classification sit for the bar —between the Alabama bar have failed relationship those interest in identi- to the state’s times and all others— five fying competent those who will be attor- relationship legitimate ato rational bears a neys. 376-77; supra, at Younger, purpose. state argument convincing. find We do not Casualty Surety & v. Aetna see Weber note, repeated appellees As failure 164, 172, Company, 406 U.S. may person’s compe- reflect itself (1972). 31 L.Ed.2d legitimately may tency practice law and process analysis, substantive Under establishing a state in be considered appropriate. review also is basis rational Poats, for admission to its standards bar. (10th Ogden, Lucero 499; supra, Younger, supra, 497; Poats, Cir.1983); supra, Younger, dismiss, Although on this motion to evi- require high can “A state supra, at 376. presented point, dence was not on this we qualification, good such as standards Younger note the decisions Poats law, proficiency in character moral presented of the ex- which evidence was bar, applicant to the it admits before pass among taking tremely low rates those must have a rational con- any qualification examination for the fourth or fifth fitness or ca- applicant’s nection with example, time. For the district court v. Board practice law.” Software pacity to (D.Colo.1980), F.Supp. 1244 Younger, 482 Mexico, New 353 U.S. Bar Examiners of of 232, 239, among evidence that rates received 752, 756, L.Ed.2d taking the examination for Bar (1957); Konigsberg v. State see dropped sharply or fifth time the fourth 252, 262, 77 California, first-, second- from the rate achieved (1957). 728, 1 L.Ed.2d 810 at 1247. The and even third-timers. Thus, pro- appellants’ answer taking those the bar for the pass rate for. protection challenges to the equal cess and level, From that it first time was Id. 77%. rule, must decide five-time time, the second dropped to 46% 61% exists be- a rational connection time, and then to the fourth the third 20% ensuring in a the state’s interest tween Similarly, the fifth time. Id. time and 0% competent and the limitation the bar Poats, supra, Circuit noted in the Seventh applicant may of times that an sit number examinations, bar recent Indiana initially for the bar examination. We note for first-time pass rate was about the 80% challenge legiti- the do not examinees, repeaters the rate for while macy Appellants state’s interest. of the lower. significantly was argue instead that the five-time rule is not purpose. rationally related to the stаte’s Although person may undertake a They the examination assert that bar itself/ and, study periods of intensive af several rule, is the mechanism not the five-time attempts pass several unsuccessful ter competent from the in- separates the bar, enough the familiar the become attorneys. competent prospective Under as well as the form of the examination ‍‌‌‌​​​‌​​​‌​​​​‌​​​​‌‌​​‌​‌​‌​‌‌‌​‌​‌​‌​​‌‌‌​‌​‌‍view, person if a would be an appellants’ by the areas covered examina substantive attorney, then he or she will incompetent test, pass a state questions tion examination, regardless of not the bar may conclude that this individ nevertheless opportunities afforded for the number displayed adequate ability to ual has not Similarly, appellants’ under taking it. pres everyday problems and handle the viеw, regard- passage repeated legal practice, where of a attempts, sures previous less of the number failures, ultimately if suc even followed has examinee indicates that successful cess, seriously injure rights competence. can required attained the level Thus, admission public.10 we con to the bar is interests of hearing to a full to contest his or number of entitled limitation on the clude that the failing her score on for the Alabama times one can sit hearing the Court held that a is Tyler, rationally related to the satisfy process due when ensuring interest in legitimate state’s a to retake the competency of its bar. an unlimited number of times. Og- F.2d at 1103. See also Lucero II. (10th Cir.1983). den, only 718 F.2d 355 The argue Appellants next question to be determined a process are in procedural due rights to be “whether a mechanical error had would effect of the fringed by the combined five- computing grade made in or the been granting only them rule and the rule a time grade given by arbitrary, the examiner was right to their own examina limited foundation,” capricious, and without correctly make no papers. the examiner’s evaluation of not whether practice absolute law. claim to an “correct,” paper was and the Court significant They only a interest claim that, hearing, compared concluded to a profession chosen and a practicing their speedy reexamination would a more be right to due before at least as effective method for determin- them. practice is denied ing whether an error had occurred. Id. at appellants’ importance of interest because, speedy 1104. It would more process protec and its entitlement to Georgia while are ad- bar examinations long recognized. tion has been See biannually, hearing procedure ministered Board Bar Examiners Schware v. subject waiting examinee to a could Mexico, 5, New 353 U.S. 238-39 & n. longer much than months period six before (1957); Tyler 755-56 & n. 5 case could his or her be considered. Id. (5th Cir.1975), Vickery, 517 F.2d Additionally, only question because the review would be whether mechanical error (1976).11 To L.Ed.2d 393 decide that an arbitrary conduct caused process protection, interest merits due how grade and because the chances are so small ever, begin analysis; it re subject that the same would be individual mains to be decided what is due. times, caprice same error or two prоcess requires particu “[W]hether highly reexamination would be effective procedure given lar situation must be detecting error or arbitrariness. by balancing determined the individual’s Moreover, the Court found that the state avoiding interest the loss which lack of avoiding had a interest in substantial procedure against the inflicts him the that a tremendous administrative burden government interests which the seeks to hearing procedure impose, especially would by denying Tyler, supra, advance it.” gains from this added the realized when Id, (citing Goldberg Kelly, 1104 397 so minimal. burden would be 254, 262-63, 1011, 1017-18, course, the Tyler, does not answer (1970)). L.Ed.2d 287 question presented by this case it because binding upon permitted applicants

Precedent this Court al- rule that involved a ready question opportunities has answered the unlimited to retake the exam- note, circuits, 10. We Appeals as have other the irrele- 11. The Eleventh Circuit Court of vancy argument adopted to this of the fact that selected case Fifth Circuit the law of the former permitted 30, 1981, individuals have been the September as its handed down as of greater the to take bar examination number of binding governing body precedent, which is permitted present times than the rule. See until overruled modified unless and or Givan, (7th Cir.1981) Pouts v. 651 F.2d Prichard, City en Court banc. Bonner v. Board, curiam); (per Younger v. Colorado State (11th Cir.1981) (en banc). Examiners, (10th Law 625 F.2d Cir. 1980). caprice. 1(3), error and Rule ¡nation, challenged against rule here VI the while challenged permits limitation on reexamina- places appellants, a five-time ex Nevertheless, reasoning Tyler the tion. review aminees to their own examination factors оf guides decision here. The our the purpose ascertaining “for are the speed and administrative burden correctly.” grades were transcribed Alabama, in Tyler. case as same in this Id.12 administers the bar examina- Georgia, like Therefore, applica- we hold that the rules expectation of months. The every six examination, limit- to the Alabama bar ble procedure each from a that allows delay appli- ing to five the number of times an a full and failing examinee can sit for examination and cant impose burden this would over the concern granting a limited to review one’s equally here. are reasonable state paper, afford own only might weigh Thus, factor that against adequate protections case the effectiveness differently in this prac- in possibility that their interests compared rule to the unlim- five-time improp- ticing law will be limited or denied detecting grading ited-examination erly. arbitrary conduct. error improbability that mechani- extreme The arbitrary strike cal or conduct would error III. five individual times ensures same Finally, appellants argue that of the Alabama rule. The effectiveness racially disparate rule has a ef five-time that, making the Tyler noted even Court fect, which when combined Alabama’s assumption every generous that one out of state-sponsored history of discrimination examinees should one hundred who against attempting pursue blacks ca arbitrary fails due to it requires in the law this Court reers error, only one grading or the chances are scrutiny subject the rule to strict in a million that the same individual would equal protection Apрel clause. under caprice error be the victim of or two argue that if rule is lants also even the 517 F.2d 1104. In Poats examinations. discriminatory, disproportionate per se Cir.1981) Givan, (7th (per F.2d 495 against at least discriminates those effect curiam), in upholding against the Court including Var applicants, appellant black ex- constitutional attack Indiana’s four-time ner, elementary segregated attended who limitation amination calculated secondary in Alabama and con schools million are one one hundred chances sequently received inferior educations. the vic- that the same individual would arbitrary error on allege

tim of mechanical Appellants nowhere those four Id. at 499. As examinations. adopted or the five- now administer noted, proba- court this case district chargeable rule are with intentional time staggeringly bility is low that an examinee discrimination, for this reason racial bar ex- who received scores on the applied challenges their facial each amination five different times was fail. rule must Thus, the victim of error. even with time Davis, Washington v. limitation, five-time reexamination (1976), 2040, 48 L.Ed.2d 597 held that ensuring that highly effective method of discriminatory purpose is proof of arbitrary error or conduct mere mechanical equal protection violation of to show a an failure. responsible applicant’s is not clause. Id. at 96 S.Ct. at 2049. “Dis- irrelevant, impact Furthermore, proportionate is not applicants to the Alabama the sole of an invidious protection afforded additional it is not touchstone bar are 1(3) to the also to review substantivе errors their answers exami- 12. Rule VI allows examinees particular top papers possible questions, written on the as the three nation well as me- Thus, they that examinees took. of the chanical errors examiner. opportunity their own are afforded the to detect by discriminatory impact forbidden the Con- because of its on racial discrimination alone, trig- Standing it does not stitution. blacks.

ger racial classifications are the rule that scrutiny subjected to be strictest IV. only by weightiest' justifiable are argu- Our careful consideration of the (citations omitted). considerations.” appeal ments raised this leads us to allege Although appellants in their brief properly conclude the district court historically subjected that Alabama to in appellants prove determined thаt no could blacks tentional discrimination who at set of facts that would entitle them to law, tempted ‍‌‌‌​​​‌​​​‌​​​​‌​​​​‌‌​​‌​‌​‌​‌‌‌​‌​‌​‌​​‌‌‌​‌​‌‍pursue careers complaint, relief. Its to dismiss decision that their own do not claim efforts be upon for failure to state a claim which lawyers by come were obstructed intention therefore, granted, relief can AF- be Moreover, discrimination. al racial we FIRMED. keep challenge in mind that the must raised past practices not to those aimed at HATCHETT, Judge, dissenting: excluding legal profession, blacks from the respectfully I dissent. disproportionate impact to the

but rather present importance rule One matter is of utmost on blacks that limits the an this case: This case number of times can sit for was dismissed without appellants having prove examination.13 do not allege adoptеd support type rule facts in of their this was or is claims. The purpose developed cases, of statistical data maintained for the of discrimina other ting against by majority, support cited Similarly, although pre- blacks. sumptions appellant alleges that he in those cases from other cir- Varner and other cuits, subjected black themselves is absent this The dis- were record. majority trict court and the to intentional racial in Ala rule that the discrimination by incompetence presumption five-time seg bama virtue of their attendance of is valid statistical, regated elementary schools, expert, without consideration of secondary challenge past he does not here dis other evidence. We do not know what crimination, but rather the on him has been result the five-time limita- effect provision. the five-time rule. tion rule and the limited review We must ask: Would a two-time examina- Finally, appellants allege that when tion limitation limited be con- adopted, appellees five-time rule was knew majority’s analysis, stitutional? Under the or should have known that the rule would important, any since facts are not maxi- racially have a discriminatory impact. This mum of times set number Alabama Bar allegation support also is insufficient to an taking officials for Bar Exam- equal protection claim. In Personnel Ad ination with limited review would Feeney, ministrator Massachusetts v. Clearly, constitutional. be this case should S.Ct. complaint. not have been dismissed its (1979), Court held that finding A process, of no violation of due prove equal protection a violation of the finding, like other must based on clause, рlaintiffs must show that the chal developed, argued, analyzed. facts lenged part action was “taken at least in of,’ of,’ merely spite My position simply ‘because ‘in in this case is stated adverse effects supported identifiable all of the law on the group.” App subject: Applicants Id. at who fail a state’s bar charge appel here make no must either the ellants lees (a adopted part five-time even full review of their hear- examinations 1975), recently 13. We also note that here do not such as considered in argument Turlington, make an based on McNeal v. Tate Debra P. Irene P. v. 730 F.2d 1405 District, (5th (11th 1984). County School 508 F.2d 1017 Cir. Cir.

1005 rationale, right to to the Fifth Circuit’s ing), or have the unlimited times followed majority today from retake the examination.1 deviates this bind- ing precedent. majority opinion I from the dissent be v. Illinois Board Law right granted In cause the limited of review to Whitfield of Examiners, (7th Cir.1974), F.2d applicants, combined with the 504 474 Alabama bar held taking procedural the bar exam Seventh Circuit that five-time limitation require ination, process. majority applicant The not that a bar violates due did permitted holding papers its of to see examination of no violation his bases Tyler v. misinterpretation compare of them model process on a with others and Vickery, cert. Cir.1975), (5th he F.2d 1089 answers where had the retake 517 denied, Whitfield, 49 the examination. 504 F.2d at 426 U.S. Whitfield, (1976). 476-78. In being L.Ed.2d besides enti- ap- tled retake the the bar Wegmann, Brewer 691 F.2d 216 In plicant performance also his could discuss (5th Cir.1982), Fifth clarified its .with one of examiners. The Seventh Tyler by holding that the reasoning Lou- “[gjiven availability Circuit held that of prohibit- procedure Bar isiana examination prоcedures,” applicant these alternative obtaining ing applicants re- was not entitled see his examination of examinations satisfied due view their papers compare them with model' an- appli- requirements because Whitfield, swers. In F.2d 477-78. unqualified right to retake the cants had an Givan, Poats (7th Cir.1981), 651 F.2d 495 The Brewer court concluded examination. holding the Seventh Circuit reaffirmed Tyler’s holding unqualified an possibility of reexamination satis- the bar examination consti- retake Poats, F.2d process. fies due pro- for a due adequate tutes an substitute Ogden, Lucero v. (10th Brew- decision. cess controlled its — er, -, Cir.1983), 217. other 691 F.2d at While circuits simply Although Georgia the state apparent that Alabama has of allows 1. It developing stayed papers, law abreast of the in this limited review of examination its rules A from the other two area. review of applicant rules an do not limit the number times of Georgia show states in this circuit Florida may pertinent take the examination. The brought compliance their have both rules in regarding provides: controlling with law. of Examination Pa- Section Review Article section 9 of the Florida Bar Admis- pers. Neither the Board of Bar Examiners provides: sion Rules post any member thereof shall conduct nor (a) An must Section 9. success- applicants interviews with nor examination fully complete the General Bar Examina- beyond applicants’ be retained shall tion and the Multistate Professional Re- sponsibility succeeding of the the commencement date (MPRE) within Examination of Bar Admis- Director submitting any portion months from first may post inter- conduct examination sions appli- оf in Florida. An the examination he not re- views with shall any part pass cant fails four times to of questions or answers with view individual Bar Examination or who fails General applicant, inspection nor shall he allow both the General Bar Examination questions following the of either or answers Responsibil- and the Multistate Professional examination; giving provided, an' how- (MPRE) ity Examination within months ever, applicant may duplicate make that an ineligible any part of the shall be sit taking copies time of his answers at the passage until least 1 may copies retain the examination and Bar administration of General Examina- questions exception questions Professional Re- tion and the Multistate portion pre- on that (MPRE) sponsibility Examination from the pared super- under for the Board period. At the end of close of the 25-month Conference of Bar again vision National period, must suc- Examiners. cessfully complete Bar the General Exami- Re- and the Multistate Professional nation sponsibility Governing Georgia Ad- Rules Court of (MPRE) Examination Approved as Law to the Practice of mission part regardless entirety whether a April successfully completed past. in the been (1984), right 79 L.Ed.2d 706 the Tenth cause a to retake the examination existed, upheld barring applies the Colorado rule its rationale to the instant right case where no applicant’s results, to retake the review of a bar examina tion after it five times exists. The permitting applicant right an an absolute applicant must be able to discuss his exami retake the bar examination for an unlimited nation with the attempt bar examiners and The Tenth Circuit held number of.times. explanation to obtain an grades. unqualified right that the absolute to re- McFadden, See Richardson v. 540 F.2d 744 take the examination constituted an ade- (4th Cir.1976), banc, rehearing on en quate process for due hearing. substitute (4th Cir.1977), F.2d 1130 Lucero, 718 F.2d at 359. See Single- also Association, ton v. Louisiana State Bar (1978) (reexamination may not be a more (E.D.La.1976)(the F.Supp. district remedy effective process than a due hear upheld court the Louisiana Bar prohib- ing)- iting post-examination review of failing right Since no unlimited to retake a papers. The court district relied on the case, exists this I dissent providing Louisiana Bar rules liberal stan- majority’s from the holding that the limited retaking dards examination). the bar right of review for an appli- Alabama Bar The above cases illustrate the majority’s cаnt who has failed the examination five reading incorrect of Tyler v. Vickery. process. times satisfies due Without an right Where an unlimited to retake the bar right examination, absolute to retake the exists, process due is satisfied process due mandates a broader review although the hearing. If, rules bar a full procedure. however, right no unlimited to retake the regrettably, Most majority takes the exists, process bar examination a due hear holding in Washington v. ing must be held because the mechanism Davis, providing a substitute for the process due (1976), L.Ed.2d 597 “dispro which held that hearing longer case, no exists. In this portionate impact alone, standing ... ... Alabama Bar who has failed the trigger does not the rule that racial classifi bar examination five times cannot retake subjected cations are to bе to the strictest applicant’s scrutiny” justify denial of appellants’ reviewing consists of paper, his ground claims on the did not top papers, three and the model answers. allege adopted those who and now Without a retake the administer the chargea five-time rule are this limited review satisfy fails to proc ble with intentional racial discrimination. ess.2 course, they Of charge; made no such The Seventh Circuit has held that “mere- charge no'such can ever be made. Because ly seeing comparing .examination or it present [an] charged officials cannot be with others” satisfy process. fails to past intentional discrimination does not Whitfield, 504 F.2d at 478. mean that a court That court need not consider the intentional, past further held that due effects of could discrimination upоn applicants in competitive if satisfied could endeavors. “confront fact, ‍‌‌‌​​​‌​​​‌​​​​‌​​​​‌‌​​‌​‌​‌​‌‌‌​‌​‌​‌​​‌‌‌​‌​‌‍In long circuit has considered as bar examiners and obtain from them disparate relevant impact past due to inten explanations grades.” of their Whitfield, tional discrimination.3 (footnote omitted). 504 F.2d at 478 While in Whitfield, the Seventh Circuit held that In By Debra P. Turlington, Irene P. v. no due (11th was Cir.1984), be- 730 F.2d 1405 the Eleventh passing noting it is worth Experience that review of the in these matters teaches me that "top papers” three comparison oftentimes useless. For 50 to 60 will fail or purposes, point. pass-fail three differences of less than 1 above the cut-off line are crucial. appellant clearly alleges past 3. The Varner intentional racial discrimination disproportionate impact has caused a on him of holding a court’s affirmed district Circuit Exami Literacy Florida Functional FOWLER, Louis Marlon diploma sanction used as a could be

nation Plaintiff-Appellant, court had 1982. The district only after against the four-year injunction issued BELL, INC., corporation, BLUE relevant reasons. The reason for two test Defendant-Appellee. high case is the students to this the first class of would be school No. 83-7083. integrated schools physically attended have years educational all twelve for Appeals, States Court of United test as a held that use of the We careers. Eleventh Circuit. permissible diploma sanction would be July 1984. forth in test set state satisfied the if the District, County v. Tate School McNeal (5th Cir.1975). had The state

508 F.2d dispro (1) demonstrate either caused was not failure blacks

portionate past intentional present effects of

by the (2) of the test or that the use

segregation, remedy those diploma sanction would

as 1020; McNeal, 508 F.2d at Debra

effects. Eleventh Cir

P., 730 F.2d at Under have been precedent, this test should

cuit determining in this case in

utilized сon Bar rule is Examination light disproportionate of its

stitutional past intentional

impact on blacks due to ready were

discrimination. that a number of prove disproportionate fail the Alabama Bar

blacks therefore, test should McNeal ‍‌‌‌​​​‌​​​‌​​​​‌​​​​‌‌​​‌​‌​‌​‌‌‌​‌​‌​‌​​‌‌‌​‌​‌‍Instead, applied developed facts.

been accept a majority court and

the district as constitution

five-time (without

ally adequate procedures) say Alabama Bar so. The officials

because claims,

appellants’ serious constitutional law, are

supported an abundance of case

summarily dismissed.4

Hatchett, Judge, dissented and opinion. filed public, passes Clearly, claim but one who an examination five-time Alabama’s rule. represent attempt competent without not have been dismissed sixth is not should on a being argument taken. public. evidence such is made in When history of a no bar examina- the shadow where law, states now Aside from dictates of case graduation required many years, tion was examinations unlimited times to take bar allow an accredited law is not school frivolity argument realize in an because law, argument practice be- such an asserting passes that one an examination even more frivolous. comes attempt represent competent fifth on the notes analysis employ satisfy we the due that a is here. process rights when of a bar examinee affecting rights. competent times is tions fundamental examination five See simply The state asks wheth practice Shapiro Thompson, law. practice competent to er an (1969) (when law, provides the five and then it classification touches on fundamental demonstrate his or her opportunities to travel, constitutionality interstate competence.9 judged by stricter standard must be promote necessary whether it is a com Failing argument in their Court, interest). pelling state how prоve compe opportunity to have no ever, pur held that the never tence, argue “five-time particular occupation is a sue a fundamen principles of due rule” violates right, applied tal and it has not strict equal protection because it is not tailored scruti purpose fit it carefully enough ny affecting the state review to classifications promote. Appellants pursuit is intended to assert occupa individual’s of his or her apply should the strict scru that this Court contrary, equal protection tion. On the tiny standard of review determine analysis, applied the Court has the tradi necessary the five-time whether tional rational to such basis review statuto compelling state interest. We achieve a ry Shapiro, supra, classifications. See disagree. pro both substantive due Under (Harlan, J., dissenting) 89 S.Ct. at 1345 equal protection analysis, cess and Co., (citing Optical v. Lee Williamson determine Court must rule is (1955); 99 L.Ed. 563

Case Details

Case Name: Roxanne Jones, Mary Kyser, Perry Varner and Velmer Taylor, Plaintiffs v. Board of Commissioners of the Alabama State Bar

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Sep 17, 1984

Citation: 737 F.2d 996

Docket Number: 83-7004

Court Abbreviation: 11th Cir.