Larry v. White
| Citation | 929 F.2d 206 |
| Decision Date | 24 April 1991 |
| Docket Number | No. 89-2969,89-2969 |
| Parties | Dr. Julius J. LARRY, III, DDS, and Dr. Abdul-Hakim Ahmed, DDS, Plaintiffs-Appellants, v. Mark WHITE, Individually and in His Capacity, et al., Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Julius J. Larry, III, Houston, Tex., pro se.
Carnegie H. Mims, Jr., Jefferson & Mims, Houston, Tex., for Dr. Abdul-Hakim Ahmed.
Abdul-Hakim Ahmed, DDS, J.D., Houston, Tex., for amicus-Gulf State Dental Asso. of Texas, Inc.
Joseph W. Barbisch, Austin, Tex., Elena DiIorio, Vinson & Elkins, Houston, Tex., for Mark White.
Appeals from the United States District Court for the Southern District of Texas.
Before CLARK, Chief Judge, GARWOOD and DAVIS, Circuit Judges.
Plaintiffs-appellants Dr. Julius J. Larry, III (Dr. Larry) and Dr. Abdul-Hakim Ahmed (Dr. Ahmed) appeal the district court's summary judgment dismissal of their suit against defendants-appellees Mark White, et al (appellees). We affirm.
Dr. Larry, black and a graduate of Meharry School of Dentistry in Nashville, Tennessee, who practiced dentistry in the United States Army for six years, completed and failed the Texas dental licensing examination twice, once in August 1983 and again in June 1984. The examination consists of three parts that are taken over the course of three and one-half days: a section on dentistry and the law, a denture set-up section, and an oral diagnosis and treatment plan section. During the last section of the August 1983 examination, five members of the Texas State Board of Dental Examiners (Board) failed Dr. Larry while he was preparing a filling, purportedly because he was about to lay a base over decay that he had failed to remove from his patient's tooth. 1 Larry contends that he had requested a "deep check" from the examiners, but was not given one. 2 Appellees deny that Dr. Larry failed because he had not obtained a "deep check" prior to a pulpal exposure and maintain that he failed only because of his error in preparing to lay a base over decay as reflected in the Board records. 3
Dr. Larry repeated the dental licensing examination in June 1984 and again failed. He asserts that at 8:40 a.m. on the morning of the final part of the examination, examiners requested to see the completed bridge he was to have prepared. Dr. Larry maintains that because the examination was not supposed to end until noon, he had nothing to show the examiners. He asserts that as a result, Board members and appellees, Brian Babin (Babin) and L. Jack Bolton (Bolton), harassed him for twenty to thirty minutes by shouting at him. Dr. Larry claims that the reason given for his failure was that he did not have his bridge ready for the 10:00 a.m. pre-cementation check. Appellees maintain that Dr. Larry failed this portion of the examination because he did not complete his dental bridge by the termination of the examination at noon. 4
Dr. Ahmed, also black, is a graduate of the University of Texas Dental Branch at Houston who first completed the dental licensing examination in June 1984. He claims that he requested and received a "deep check" in the final part of the examination when he feared nerve exposure, but that five examiners concurred in failing him when nerve exposure subsequently occurred. According to Dr. Ahmed, the examiners asserted that Dr. Ahmed had failed because he had "proceeded on unnecessarily and mechanically exposed the tooth." Appellees maintain in their brief that Dr. Ahmed failed because he had "cut through good tooth in creating the exposure." Dr. Ahmed voluntarily withdrew from the final part of the September 1984 examination when his bridge would not properly fit the patient's mouth at the 10:00 a.m. pre-cementation check, even though, according to Dr. Ahmed, it had previously fit properly. Dr. Ahmed subsequently argued before the Board in a December 1984 hearing granted at his request that the misfit occurred because the patient suffered from a rare gum disease, Crohn's Disease, which caused two teeth to shift. 5 He claimed that just two days after the end of the examination the bridge in question was seated in the same patient's mouth by a licensed dentist. The Board unanimously rejected Dr. Ahmed's contention because it claimed it should not make an exception to its rules and pass Dr. Ahmed even though, according to Dr. Ahmed, the Board had in the past made exceptions for white examinees. Dr. Ahmed was offered, but refused, the opportunity to take the next examination. 6
Dr. Larry filed a complaint in Texas state court on June 20, 1984, against Babin, Bolton, and the Texas State Board of Dentistry, contending that defendants denied him his equal protection and due process rights under the Fourteenth Amendment of the United States Constitution. Dr. Larry amended the complaint three times, adding defendants and additionally alleging slander and intentional infliction of emotional distress. The state court dismissed the suit in December 1985 for want of jurisdiction on sovereign immunity grounds. Dr. Larry subsequently withdrew his notice of appeal.
On April 2, 1985, Dr. Larry filed the present suit against eighteen people, including then-Texas Governor Mark White, and various members of the Board as well as two of its attorneys, all in their individual and official capacities. The complaint sought relief under 42 U.S.C. Secs. 1981, 1983 and 1985, alleging that defendants had engaged in "racially biased and discriminatory practices, under color of state law." Dr. Ahmed filed his suit on April 3, 1986, against virtually the same defendants as those named in Dr. Larry's complaint with the addition of the Texas State Board of Dentistry and the University of Texas Dental Branch at Houston. He sought relief as well under 42 U.S.C. Secs. 1981, 1983, and 1985, alleging that defendants conspired against him based on his race, color, religion, and skin complexion, thus depriving him of his civil rights under color of state law. The cases were consolidated on November 20, 1986. The district court granted appellees' summary judgment motion on August 1, 1989, stating that Dr. Larry and Dr. Ahmed had failed to demonstrate that the Board had acted with a racially prejudicial animus. Dr. Larry and Dr. Ahmed each filed timely notice of appeal.
Appellants contend on appeal that the district court erred in granting appellees' summary judgment motion, asserting that a genuine issue of material fact exists regarding whether appellees failed them on their respective dental licensing examinations because of their race. 7 To demonstrate that a challenged official act violates the racial component of the equal protection clause of the Fourteenth Amendment, a party must prove the racially discriminatory purpose of the act. See Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 2047-50, 48 L.Ed.2d 597 (1976). The district court dismissed the case because appellants did not show that the challenged conduct was based on a "racial animus." 8
As indicating racial discrimination, Dr. Larry presents statistics showing that graduates of two assertedly "predominantly" black dental schools, Howard and Meharry, historically do not fare as well on the Texas dental licensing examination as do graduates of Baylor University and the University of Texas dental schools, which are assertedly "predominantly" white. 9 Dr. Ahmed presented, following the summary judgment hearing, an unsworn letter from a statistician he retained stating that, based entirely on the assumed fact that of the twenty-four examinees who received a "deep check" at the June 1984 examination, the sole one to fail that examination was the only black among the twenty-four, racial discrimination probably existed in application of the deep check rule at that examination.
Dr. Larry's skimpy and partial statistics do not further his claim of racial discrimination because they might reasonably lead to inferences other than racial animus by the Board. Because Meharry and Howard are located outside of Texas and the University of Texas and Baylor are in Texas, one could conclude from Dr. Larry's data that out-of-state students have fared less well historically on the Texas dental licensing examination than have in-state students. Indeed, the summary judgment evidence showed that out-of-state students generally had a much higher failure rate than in-state students. There was no showing that in any way correlated the higher out-of-state failure rate to race. Further, one might infer from Dr. Larry's statistics that the reason for the disparity in examination results is that Meharry and Howard are less academically rigorous than Baylor and the University of Texas. 10 The statistics do not separately reflect the pass rates on the dental licensing examination for black and white students at these schools (nor even the actual racial composition of the respective dental school student bodies or of their examinees). However, the undisputed evidence does show that all in-state blacks who took the examinations with Dr. Larry and Dr. Ahmed passed either those or subsequent examinations and were licensed to practice in Texas. The evidence also shows that a greater number of students failed the examinations taken by Dr. Larry and Dr. Ahmed than is normally the case. Statistics presented by appellees below in support of their motion for summary judgment reflect that in the nine examinations given from May 1983-85, at which there were over 1,100 examinees in all, the failure rate ranged from six to nine percent for six of the examinations; but for the August 1983, June 1984, and September 1984 examinations, the failure rate was 43, 21, and 23 percent, respectively. We conclude that Dr. Larry's statistics do not demonstrate either a discriminatory effect or a discriminatory purpose of the challenged acts. 11 The letter from Dr. Ahmed's statistician was not presented to the district...
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