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Whitfield v. Illinois Board of Law Examiners

decided: October 18, 1974.

LEROY WHITFIELD, PLAINTIFF-APPELLANT,
v.
ILLINOIS BOARD OF LAW EXAMINERS, GEORGE B. LEE, CLYDE O. BOWLES, JR., FRANCIS D. MORRISSEY, JOHN B. HENDRICKS, DEFENDANTS, LEN YOUNG SMITH, DEFENDANT-APPELLEE



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division - No. 73 C 1023 Frank J. McGarr, Judge.

Pell and Stevens, Circuit Judges, and Laramore,*fn* Senior Judge.

Author: Per Curiam

Plaintiff, LeRoy Whitfield, is a law school graduate who, after failing the Illinois Bar Examination five times, brought a civil rights action*fn1 against the Board of Law Examiners and its individual members.*fn2 He alleged that: 1) the bar examination is unconstitutional because it has no rational connection with an applicant's fitness or capacity to practice law; 2) he passed the examination and should be so certified; and 3) procedural due process requires that he be permitted to see his exam papers and to compare them with model answers or answers of successful applicants. Plaintiff also alleged that the defendants had discriminated against him because of his race; this claim, however, has been abandoned on appeal. The district court dismissed plaintiff's complaint for failure to state a cause of action. We affirm.

I.

Plaintiff alleged that, in addition to his fine academic and military record, he had extensive legal experience. This included employment at various legal aid clinics, where he litigated cases (see Ill. S. Ct. Rule 711), interviewed clients and prepared legal documents, and as "Legal Advisor, special policeman and Project Director" of the Gary, Indiana, Police Department, where he drafted search warrants and directed searches. Plaintiff argued that an applicant with his background clearly has the capacity and fitness to practice law; and, if the Illinois Bar Examination had a "rational connection" to such capacity and fitness, he would have passed it. He therefore concluded that, under Schware v. Board of Bar Examiners, 353 U.S. 232, 1 L. Ed. 2d 796, 77 S. Ct. 752,*fn3 the examination is unconstitutional.*fn4

We may assume arguendo that plaintiff's background does establish his ability to practice law. The fact that the bar examination has prevented one even exceptionally qualified individual from practicing is not, however, a sufficient reason to declare it violative of the Fourteenth Amendment. It is well settled that the question of whether a classification passes constitutional muster cannot be answered simply by assessing its chance effect upon a particular individual. See, e.g., Colgate v. Harvey, 296 U.S. 404, 436, 80 L. Ed. 299, 56 S. Ct. 252. As the Supreme Court has concluded:

"The fact that the Rules [concerning admission to the bar] may result in 'incidental individual inequality' [does not] make them offensive to the Fourteenth Amendment."

Martin v. Walton, 368 U.S. 25, 26, 7 L. Ed. 2d 5, 82 S. Ct. 1. Since plaintiff's attack on the Illinois Bar Examination is based solely upon such a chance effect, it is plainly insubstantial.*fn5

II.

Plaintiff further alleged that, in light of his background, it was "impossible" for him to have failed a bar examination five times; thus, he must have passed and should be so certified. It was uncontroverted that the Board actually determined that plaintiff failed each of his five examinations. His contention, however, was that the Board made "serious mistakes" in grading.

Admission to practice in a state and before its courts is primarily a matter of state concern. Schware, supra, 353 U.S. at 248 (Frankfurter, J., concurring). And the determination of which individuals have the requisite knowledge and skill to practice may properly be committed to a body such as the Illinois Board of Law Examiners.*fn6 Douglas v. Noble, 261 U.S. 165, 67 L. Ed. 590, 43 S. Ct. 303. A federal court is not justified in interfering with this determination unless there is proof that it was predicated upon a constitutionally impermissible reason. See Schware, supra, 353 U.S. at 238-40; id. at 248-49 (Frankfurter, J., concurring); cf. Theard v. United States, 354 U.S. 278, 281, 1 L. Ed. 2d 1342, 77 S. Ct. 1274. Since nothing in plaintiff's complaint indicates that he was denied admission for such a reason, the district court correctly rejected plaintiff's request to overrule the judgment of the Board of Examiners.

Plaintiff, of course, did allege that defendants acted arbitrarily in grading his examination. There may very well be situations in which a capricious denial by state officials may give rise to a federal remedy. See Schware, supra, 353 U.S. at 239; id. at 249 (Frankfurter, J., concurring). But, as Justice Brandeis observed for a unanimous Court in Douglas v. Noble, supra, "it is not to be presumed that powers conferred upon the administrative boards will be exercised arbitrarily . . . ." 261 U.S. at 170. In this case plaintiff has merely alleged, in essence, that an essay-type examination requires subjective evaluation and that the standards of grading are not susceptible to precise definition. We agree with the Eighth and Ninth Circuits that such an allegation is not sufficient to state a claim for federal relief. Feldman, supra note 5; Chaney, supra note 5.*fn7

III.

Finally, plaintiff alleged*fn8 that procedural due process requires that he be permitted to see his examination papers and to compare them with model answers or answers of successful applicants.*fn9 We may assume that the due process clause requires the state to employ fair procedures in processing applications for admission to the bar and, therefore, that an applicant who has failed the bar examination is entitled to some procedural protections. Nevertheless, we do not ...


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