Tyler v. Vickery

• Decision Date: 20 August 1975
• Docket Number: No. 74-3413,74-3413
• Parties: 11 Fair Empl.Prac.Cas. 972, 30 A.L.R.Fed. 907, 10 Empl. Prac. Dec. P 10,388 Eugene W. TYLER, Plaintiff-Appellant, v. Trammell E. VICKERY et al., Defendants-Appellees. Ralph BANKS, Jr., Plaintiff-Appellant, v. Trammell E. VICKERY et al., Defendants-Appellees. James E. C. PERRY et al., Plaintiffs-Appellants, v. Edward S. SELL, Jr., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1089

517 F.2d 1089

11 Fair Empl.Prac.Cas. 972, 30 A.L.R.Fed. 907,

10 Empl. Prac. Dec. P 10,388

Eugene W. TYLER, Plaintiff-Appellant, v. Trammell E. VICKERY et al., Defendants-Appellees.

Ralph BANKS, Jr., Plaintiff-Appellant, v. Trammell E. VICKERY et al., Defendants-Appellees.

James E. C. PERRY et al., Plaintiffs-Appellants, v. Edward S. SELL, Jr., et al., Defendants-Appellees.

No. 74-3413.

United States Court of Appeals Fifth Circuit.

Aug. 20, 1975.

Neil Bradley, Laughlin McDonald, Atlanta, Ga., Elaine R. Jones, Jeffry Mintz, Melvin L. Wulf, New York City, C. B. King, Albany, Ga., Ray P. McClain, Charleston, S. C., for plaintiffs-appellants.

Arthur K. Bolton, Atty. Gen., Dorothy Y. Kirkley, Asst. Atty. Gen., Atlanta, Ga., for defendants-appellees.

Appeals from the United States District Court for the Northern District of Georgia.

Before GEWIN, DYER and ADAMS, ^* Circuit Judges.

DYER, Circuit Judge:

This appeal presents a broad-based challenge to the constitutionality of the Georgia bar examination on due process and equal protection grounds. This suit before us, which has been certified by the district court as a class action on behalf of all black persons who have taken and failed the Georgia bar examination and have not been admitted to the practice of law in Georgia, as well as all black persons who will take the examination in the future, results from the consolidation of several suits brought by black individuals who have been unsuccessful on the examination.

Summarized briefly, the Georgia bar examination is a two-day test administered biannually by the Georgia State Board of Bar Examiners (the Board), a group of five practicing lawyers appointed by the Georgia Supreme Court. Since February, 1972, the examination has been composed one-half of essay questions prepared and graded by the bar examiners, and one-half of the multiple choice Multistate Bar Examination (MBE), prepared and graded by the National Conference of Bar Examiners (NCBE), and administered simultaneously to bar examinees in a majority of states. Following grading, the scores on the essay and MBE portions of the examination are combined into a final grade according to one of three formulas recommended by the NCBE and selected by the Board. It has also been the practice of the Board, prior to final certification of the examination results, to convene and regrade failing papers which meet certain criteria such as falling close to the minimum passing score of 70, receiving a passing grade from a certain minimum number of examiners, or being recommended for regrading by an examiner. As a result of this reconsideration, a previously failing grade is on occasion raised to a passing score. No other review of a grade is provided.

The central focus of this litigation clearly is that black applicants as a class have traditionally experienced particular difficulty in passing the Georgia bar examination. This unfortunate situation reached a nadir in July, 1972, when each of the 40 black applicants taking the examination failed. On the February and July, 1973, examinations, slightly more than one-half the black applicants were unsuccessful, as compared to a failure rate of roughly one-fourth to one-third among white examinees.

Appellants' challenges to the constitutionality of the bar examination fall into three major areas. They claim: 1) that the examiners have used the bar examination to purposefully discriminate against black applicants on the basis of race; 2) that the bar examination inherently violates the fourteenth amendment's equal protection clause because of the highly disparate passing rates of black and white applicants; and 3) that the examination violates due process because there is no procedure for review of a failing grade.

Following extensive discovery by both sides which lasted several months, the district court granted summary judgment to appellees on each of these claims. After careful consideration of the record, we conclude that that court was correct in holding that there were no genuine issues of material fact to be resolved and that appellees were entitled to judgment as a matter of law. We therefore affirm its judgment.

I. INTENTIONAL DISCRIMINATION

Appellants' first major contention is that the bar examiners utilize the examination as a device to purposefully discriminate against prospective black attorneys on the basis of race. The district court found this allegation to be "totally without factual foundation," and hence appropriate for summary disposition. We agree that it presents no genuine issue of material fact which would require a trial.

In so holding, we are mindful of the Supreme Court's admonition that " summary procedures should be used sparingly . . . where motive and intent play leading roles." Poller v. Columbia Broadcasting System, 1962, 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458. However, discriminatory motivation, even if proved, is not in itself a constitutional violation, Palmer v. Thompson, 1971, 403 U.S. 217, 91 S.Ct. 1940, 29 L.Ed.2d 438, and becomes so only when given the opportunity to manifest itself in discriminatory conduct. Accordingly, appellees undertook to negate the materiality of intent as an issue of fact in this case not merely by denying racial animus but also by affirmatively demonstrating their inability to discover an applicant's race before grading had been completed.

The bulk of the evidence on this point was introduced through the deposition of Estes, an employee of the Georgia Supreme Court serving as Administrative Assistant to the Board, and the official primarily responsible for implementing the procedures designed to insure anonymity in the grading process. The substance of Estes' testimony was that while applicants are seated alphabetically and identified by name cards in the examination room, examination papers are identified and graded by number only. These numbers are drawn at random on individual cards by the applicants, who write their names on the cards and place them in sealed envelopes. These envelopes are then collected, sealed in a container in the examination room, and kept in the container in his custody throughout the grading process. ¹ This testimony, which was uncontradicted, ² was sufficient to show the absence of any genuine issue of material fact as to the examiners' direct access to information concerning an examinee's race during grading. Fed.R.Civ.P. 56(c).

Despite the examiners' inability to directly discover an applicant's race, appellants contend that a fact issue regarding intentional racial discrimination is inferentially raised by the deposition of Dr. J. L. Dillard, linguist and author of Black English: Its History and Usage in the United States (1972). According to Dr. Dillard, many black persons tend to speak an English variant, characterized by structures such as the pre-verbal use of "been", which has been coined Black English. While all formal education, and in particular that at predominantly black institutions, attempts to inculcate Standard English usage rather than Black English, Dr. Dillard opined that a person who had spoken this dialect during his youth might revert to it under situations of extreme time pressure, such as during a bar examination. From this testimony appellants wish us to draw the twin factual inferences that black applicants utilized a 1) unique and 2) recognizable writing style on the examination, providing the bar examiners with the opportunity to intentionally discriminate against black examinees, and hence raising a fact issue as to whether they had actually done so.

In opposing a motion for summary judgment, a party is entitled not only to have the facts viewed in the light most favorable to it but also to all reasonable inferences which may be drawn from these facts. Harvey v. Great Atlantic & Pacific Tea Co., 5 Cir. 1968, 388 F.2d 123, 124-25; Liberty Leasing Co. v. Hillsum Sales Corp., 5 Cir. 1967, 380 F.2d 1013, 1014-15. The inferences the nonmoving party seeks to draw, however, must be "reasonable," and it is in this respect that we find Dr. Dillard's deposition insufficient to controvert appellees' properly supported motion for summary judgment.

A major reason is that the deposition itself directly contradicts both inferences appellants would have us draw from it. In response to questioning by appellees' counsel regarding the racial uniqueness of Black English, Dr. Dillard testified that the incidence of the dialect was not limited to blacks, but was, in his words, "a major factor that differentiates so-called Southern dialect." He specifically testified that some southern whites would use similar or identical grammatical construction and that for those whites who had learned this patois in their youths, "(t)he trends of reversion are the same, of course." On the issue of the dialect's racial recognizability, Dr. Dillard testified that it was highly unlikely that an individual untrained in linguistics would recognize the use of Black English as a "black" characteristic, or indeed as anything other than incorrect standard English. ³ Both of these observations, which are in direct contradiction to the use of Dr. Dillard's linguistic theories which appellants wish to make in this lawsuit, in our view render the inference that Black English presents a viable opportunity for the Board to engage in overt racial discrimination unreasonable as a matter of law.

Two other factors support this conclusion. First, in determining whether a factual inference a party seeks to draw is a reasonable one, we need not ignore the existence of other evidence of record which tends to make that inference more or less plausible. First Nationl Bank v. Cities Service Co., 1968, 391 U.S. 253, 284-86, 88 S.Ct. 1575, 20 L.Ed.2d 569. Here, such relevant record evidence is the MBE, which has comprised one-half of the Georgia bar examination since February, 1972. The significance of the MBE, as a...