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Garces v. Department of Reg. & Education

DECEMBER 16, 1969.

VICTOR HUGO ELIAS GARCES, PLAINTIFF-APPELLEE,

v.

DEPARTMENT OF REGISTRATION AND EDUCATION OF THE STATE OF ILLINOIS, DENTAL EXAMINING COMMITTEE OF SAID DEPARTMENT, AND WILLIAM H. ROBINSON, DIRECTOR OF SAID DEPARTMENT, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County; the Hon. EDWARD J. EGAN, Judge, presiding. Order affirmed.

MR. PRESIDING JUSTICE LYONS DELIVERED THE OPINION OF THE COURT.

This is an appeal by the defendants from an order of the Circuit Court in a proceeding under the Administrative Review Act (Ill Rev Stats (1967), c 110, §§ 264-279 inclusive), which order found that: (1) Rules V-A and V-B of the dental section of the Department of Registration and Education of the State of Illinois are void as being arbitrary and discriminatory; (2) the decision of the Department denying plaintiff admission to the examination for a license to practice dentistry in Illinois was against the manifest weight of the evidence and was reversed; (3) the plaintiff was entitled to take the examination; and (4) the Department was directed to admit the plaintiff to the dental licensing examination the next time it was given.

In September, 1967, the plaintiff filed his application for admission to the Illinois dental licensure examination. The application was accompanied by diplomas evidencing the degrees of Bachelor of Dentistry and Dental Surgeon from the Main National University, San Marcos of Lima, Peru; certified copies of course records covering the applicant's four years of training in dentistry and one year of predentistry education at the Main National University, San Marcos; certified copies of documents showing the courses taken by him and grades earned during his five years of high school education required in Peru; a certificate from the Ministry of Health and Social Welfare of Peru certifying applicant as a registered oral surgeon in that country; a statement from a former employer that the applicant had been employed as an oral surgeon between 1958 and 1962; a statement of the Police Investigation Department that applicant had served as Orthodontologist at the National School of Police Investigations; a declaration of intention to become a citizen of the United States filed by the applicant in the Federal District Court in Chicago; recommendations from two individuals licensed to practice dentistry in the State of Illinois; scores earned by the applicant on the Science Achievement Examination of the American Dental Association; and a statement by the applicant relating to his experience and background.

In December, 1967, the Dental Examining Committee of the Department denied plaintiff's application for entrance to the examination on the grounds that the Committee had concluded that the dental school from which he had graduated did not have rules and curricula commensurate with those of the University of Illinois Dental School, such conclusion being based upon the refusal of the University of Illinois to admit him to advanced training courses at its School of Dentistry. The denial was further based upon the finding of the Committee that the school from which plaintiff graduated was not accredited by the Council on Dental Education of the American Dental Association. These two bases of denial are established, under Rules V-A and V-B of the Department, as criteria for determining the reputability of dental schools.

Thereafter plaintiff filed his complaint for judicial review of the Department's final administrative decision alleging, inter alia, that the denial of admission by the Department violated his constitutional rights in that Rules V-A and V-B are contrary to the Constitutions of Illinois and the United States since the rules were not promulgated by the Department but rather the Department unconstitutionally delegated its rule-making power to two outside bodies, the University of Illinois College of Dentistry and the American Dental Association. It was alleged that it was the actions of these bodies that established the criteria which the Department applied in determining the reputability of dental schools. The defendants' answer to this complaint consisted of the application and attendant documents submitted to them by the plaintiff.

In the first of three amendments to the complaint, the plaintiff alleged, inter alia, that the actions of the Department violated his rights under the Fourteenth Amendment of the United States and under section 2 of Article II of the Illinois Constitution in that its conduct was arbitrary and discriminatory and operated to deprive him of property without due process of law since the Department had delegated, to two outside bodies, its statutory duty to determine the reputability of dental schools. In April, 1968, the Circuit Court entered an order reversing the decision of the Department which had denied plaintiff admission to the dental licensing examination. The trial court, retaining jurisdiction of the case, also remanded the cause to the Department and its Dental Examining Committee for a hearing on the question of whether the dental school from which the plaintiff graduated is a reputable one. Pursuant to this order, the Dental Examining Committee held a hearing in July, 1968, at which the following evidence was presented.

The plaintiff called as a witness Dr. Martin Unterman, a graduate of the University of Illinois Dental School and a licensed dentist in Illinois. He testified that he had, at the time of the hearing, employed the plaintiff as a laboratory technician for two years and during that time had conversed with him about dentistry. The witness testified that he had concluded from those conversations that the plaintiff was as knowledgeable as the graduates of American Dental Schools and that plaintiff's training was comparable with that offered in American dental schools. Dr. Unterman also testified that if the plaintiff were allowed to take the examination and passed it, he would be considered for a position with the witness as a practicing dentist. During the past two years, the plaintiff had been in charge of the laboratory supervising four other employees and aiding in the complete reconstruction of dentures. Dr. Unterman stated that during this time the plaintiff had done the most technical work that could be done in dentistry in the laboratory. Dentists could not do this kind of work unless they had a good background and training for it.

The plaintiff then introduced into evidence a letter addressed to and received by Dr. Unterman. It was written by T.M. Graber, D.D.S., M.S.D., Ph.D., whom Unterman identified as a former professor at Northwestern University and other schools, an authority on dentistry throughout the world who had lectured in many foreign countries, an author of a dental textbook concerning orthodontics, and a highly respected dentist. In his letter Dr. Graber supplied the following information concerning San Marcos University:

"San Marcos is the oldest university in the western hemisphere. I have been there and lectured at the dental school and know some of the faculty personally. The dental school is one of the better ones in South America, is supported heavily with Kellogg funds, and has had a number of its faculty trained in the United States. I would think that the training is comparable with a number of schools in the United States, and superior to many throughout the world."

Also admitted into evidence was an extract from the World Directory of Dental Schools, 1963, prepared by the World Health Organization and published by Columbia University Press which publication indicated that the dental course in Peru required four years of study with a nine-month academic year and a University faculty. Instruction is in the form of lectures and clinical and practical work. A student gains admission to the dental school if he has successfully completed one year of predental work conducted in the University faculty of science. Admission to predental school is limited and is handled by a Selection Board composed of the professors of the respective faculties of science and dentistry. To obtain a degree of Dental Surgeon, the candidate must fulfill four conditions precedent: (1) successfully complete the four-year dental course; (2) present and defend a thesis; (3) pass a written qualifying examination in medicine; and (4) pass a qualifying examination, written and practical, in dentistry.

The plaintiff then testified and stated that his education in Peru consisted of five years of elementary school, five years of secondary or high school, one year of predental school in the Science Faculty, and four years of dental school. His educational background was a normal one for a professional school graduate based upon a long established school system existing in Peru. The plaintiff went on to state that he was twenty when he entered dental school; that examinations and consideration of past academic achievement are the criteria used when application is made for predental and dental school at the University; that many applicants are not admitted; and that the school term in dentistry runs for nine months, from April through December. From January through March, the student is working in the summer clinic and is gaining practical experience. The plaintiff described in some detail the courses he had taken in dental school, the practical work required, his independent research in support of his thesis, and his final examinations for the degree of Dental Surgeon. In Peru, one can practice dentistry upon earning this degree. No other licensing examination is required.

The plaintiff then identified certain professional articles written by some of his teachers in the dental school. One of his general pathology professors had received a grant of $4,000 from the Damon Runyon Memorial Fund for Cancer Research. The plaintiff also identified photographs of the various laboratories and clinics at the dental school and a list of books kept in the dental school's library, some of which were in the English language. These items were then introduced into evidence and made a part of the record. Finally, the witness testified that at the time of his attendance San Marcos was the only dental school in Peru; that prior to moving to the United States he was a general practitioner of dentistry in Lima, Peru, for seven years and also worked part time for the government in his professional capacity; and that he had scored above seventy-five in every one of the ten subjects covered in the two-day Science Achievement Examination of the American Dental Association which examination he had taken in the United States in 1967. Based on his observation of the practice of dentistry in the United States, he believed himself qualified to practice his profession here. In conclusion, the plaintiff stated that graduates of the University of San Marcos Medical School were allowed to take the medical examination in the United States; that he knew some such graduates who now lived and practiced their profession in Chicago; that the dental school is of the same quality as the medical school of the University of San Marcos; and that he was married and lived with his wife and two children in Chicago. This concluded the evidence offered in behalf of the plaintiff.

The Department of Registration and Education then called as a witness Mr. John Cody, assistant secretary for the Council on Dental Education of the American Dental Association. He explained that the Council is composed of nine people with three coming from the American Dental Association, three from the American Association of Dental Examiners, and three from the American Association of Dental Schools. Their task is to accredit dental schools if the educational institution meets the minimum requirements set by the Council. Schools are visited at least once every seven years and evaluated on the basis of administration, facilities, curriculum, faculty, libraries, research, advanced studies, and student achievement. The Council has no mechanism for accreditation of dental schools located outside the United States with the single exception of Canadian schools, which are accredited by reciprocal agreement with the Council on Education of the Canadian Dental Association. Prior to the existence of this agreement, Canadian schools of dentistry were not accredited in the United States. Cody did not know if the dental school from which the plaintiff had graduated was or was not a reputable one. It was not on the Council's list of approved dental schools, but the school had never been tested by the Council with respect to the Council's criteria and no plans had been formulated with respect to evaluating, for purposes of accreditation, dental schools located in South America. Cody was not personally familiar with the dental school at Main National University, San Marcos. He did state that a foreign dental school could be reputable although not on the Council's accreditation list.

The final witness called was Anthony J. Diekema, Director of Admissions and Records of the University of Illinois, Medical Center campus in Chicago, Illinois. He was not a dentist but held a Ph.D. degree in Sociology and Education and determined the educational qualifications of applicants for admission to the dental school of the University of Illinois. He stated that in considering applications for the admission of foreign dental graduates, their foreign academic background, their scores on the American Dental Association Science Achievement Examination, their proficiency in the English language, and recommendations from professors under whom they had studied or colleagues with whom they had worked in the United States are the factors which must be evaluated. These criteria are used in screening applicants for admission ...


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