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DELGADO v. MCTIGHE

December 1, 1977

CARLOS DELGADO, JOHN EDMONDS, WALTER D. PALMER, MIGUEL RODRIGUEZ and ANN WILSON, Individually, and on behalf of a class of all others similarly situated
v.
DESMOND J. McTIGHE, HON. ABRAHAM H. LIPEZ, JUSTIN M. JOHNSON, MARVIN COMISKY and JOHN H. ENGLISH, SR., Individually and as Members of the Commonwealth of Pennsylvania, State Board of Law Examiners and COMMONWEALTH OF PENNSYLVANIA STATE BOARD OF LAW EXAMINERS



The opinion of the court was delivered by: BRODERICK

 BRODERICK, J.

 This class action *fn1" against the Commonwealth of Pennsylvania State Board of Law Examiners and its individual members was instituted by black and Puerto Rican law school graduates, each of whom has taken the Pennsylvania bar examination at least once. The plaintiffs allege that the grades they received would have been passing grades if the Bar Examiners had not on several occasions raised the minimum passing grade from its 1972 level. In 1972, the Board required an assigned grade of 130 or better on the Multistate Bar Examination (MBE), or a grade of 100 in the MBE and 50 on the essay portion, or a grade of 85 on the MBE and 65 on the essay: in subsequent years the Board elevated these grades. These changes, the plaintiffs contend, were done arbitrarily and with the intent to discriminate against black and Puerto Rican applicants to the Bar of the Supreme Court of Pennsylvania, in violation of the due process and equal protection clauses of the Fourteenth Amendment, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Civil Rights Act of 1866, 42 U.S.C. §§ 1981 and 1983.

 The defendants have moved to dismiss the amended complaint contending:

 1. The amended complaint fails to state a claim upon which relief can be granted under 42 U.S.C. §§ 1981 or 1983 because it fails to allege facts which would indicate that the Board has violated any of the plaintiff's constitutional rights.

 2. The amended complaint fails to state a claim upon which relief can be granted against the Board under 42 U.S.C. § 1983 because the Board is not a "person" within the meaning of that provision.

 3. The amended complaint fails to state a claim upon which relief can be granted under Title VII of the Civil Rights Act of 1964 because the Board is not an "employer" or "employment agency" within the meaning of that Act.

 4. The action is premature because plaintiffs have not presented to the Supreme Court of Pennsylvania their claims that they should be admitted to the bar of that court.

 5. Plaintiffs have failed to join the Supreme Court of Pennsylvania or its Justices, who are indispensable parties to this action.

 6. Until this matter is presented to the Supreme Court of Pennsylvania, this Court should abstain from hearing the case under principles of comity and federalism.

 For a clearer understanding of the plaintiffs' allegations we shall first review the procedures pursuant to which applicants are admitted to the Pennsylvania bar. Rules 7 through 16 of the Rules of the Supreme Court of Pennsylvania *fn2" were promulgated by that court pursuant to its constitutional grant of authority. *fn3" These rules provide two procedures pursuant to which graduates of accredited law schools may be admitted to the bar. *fn4" One applies to applicants of good character who have been admitted to the bar of another state and have either practiced law outside of Pennsylvania, or taught law school, for at least five years. Rule 9 allows such attorneys, upon submission of proof of their status, to be recommended by the State Board of Law Examiners to the Pennsylvania Supreme Court for admission to the bar. The court reviews the individual applications and determines whether to admit the candidates. In re Denenberg, No. 169 Misc. Dkt. No. 20 (Pa. S. Ct. July 30, 1974).

 The other procedure for admission to the bar (Rule 8) requires graduates of accredited law school to fill out an application which they must send to the State Board of Law Examiners, together with the names of three reputable citizens who are acquainted with the applicant. If these requirements are satisfactorily met, the Board then permits the candidate to take an examination, which is prepared, administered and graded by the Board. The Pennsylvania Supreme Court Rules do not provide any guidelines with respect to the examination or its grading. If the applicant received a passing grade as determined by the Board, the Board then issues to the applicant a certificate pursuant to Rule 12. Upon submission of the Rule 12 certificate, together with a written motion for admission from a member of the Pennsylvania bar and the required oath of admission, the Prothonotary of the Pennsylvania Supreme Court then certifies the applicant's admission to the bar of that court.

 The thrust of the plaintiffs' amended complaint is that (1) the State Board of Bar Examiners has raised the passing grade each year since 1972; (2) these actions by the Board have been arbitrary and have had a disparate adverse impact on the ability of black and Puerto Rican examinees to obtain a passing grade; (3) the Board knew that a disproportionately large percentage of black and Puerto Rican examinees would not obtain a passing grade if there was a slight increase in the passing grade; (4) the passing grade determined by the Board for 1972 more accurately distinguished between qualified and unqualified applicants; (5) there was no justification, reasonably related to the aim of distinguishing between qualified and unqualified examinees, supporting the Board's decision to raise the passing grade from its 1972 level; and (6) each time since 1972 that the Board raised the passing grade, "the Board knew, and therefore intended, that the effect of such changes in the passing grade/grades would be to reduce the number and percentage of black and Puerto Rican examinees passing the examination without materially improving the examination's ability to distinguish between qualified and unqualified entry-level lawyers." *fn5"

 In connection with a motion to dismiss, *fn6" all of the well pleaded complaint must be taken as true and must be construed in the light most favorable to the plaintiffs. Helstoski v. Goldstein, 552 F.2d 564, 565, No. 75-1956 at 3 (3d Cir. 1977); Mortensen v. First Federal Savings and Loan Association, 549 F.2d 884, 890-91 (3d Cir. 1977). This being a F.R. Civ.P. 12(b)(6) motion, the motion can be granted only if the Court finds that "even were [plaintiffs] to prove all [of their] allegations, [they] would be unable to prevail." Mortensen, supra at 891.

 Allegation of Discriminatory Purpose in Actions Based on 42 U.S.C. §§ 1981 and 1983.

 The defendants' first ground for requesting the dismissal of plaintiffs' amended complaint is that it does not state a claim upon which relief can be based under 42 U.S.C. §§ 1981 and 1983, because discriminatory purpose has not been adequately alleged. In this case the plaintiffs' original complaint was filed on April 16, 1976. A month and a half later the United States Supreme Court handed down its opinion in Washington v. Davis, 426 U.S. 229, 48 L. Ed. 2d 597, 96 S. Ct. 2040 (1976), which delineated the requirements for discrimination claims based on 42 U.S.C. § 1981. The defendants promptly filed a motion to dismiss, contending in part that the complaint did not allege discriminatory purpose, as required by the Washington court. The defendants' motion to dismiss was withdrawn after it was agreed at a conference that plaintiffs could file an amended complaint. Having reviewed the amended complaint and, in particular, paragraph 16, supra, we find that discriminatory intent is now adequately averred, and that in all other respects the plaintiffs have alleged facts sufficient to withstand a motion to dismiss for failure to state a claim pursuant to 42 U.S.C. §§ 1981 and 1983. *fn7" Washington v. Davis, supra at 242, 96 S. Ct. 2040; Resident Advisory Board v. Rizzo, 564 F.2d 126, 140, No. 77-1241 at 27 (3d Cir. 1977); Richardson v. Pennsylvania Department of Health, 561 F.2d 489, 492, No. 76-2263 at 7 (3d Cir. 1977).

 The State Board of Law Examiners Not a "Person" Within the Meaning of 42 U.S.C. § 1983.

 Defendants' second contention is that the amended complaint fails to state a claim upon which relief can be granted against the State Board of Law Examiners under 42 U.S.C. § 1983 because the Board is not a "person" within the meaning of that provision. As heretofore pointed out, the Pennsylvania Constitution grants to the Supreme Court of Pennsylvania the power to provide for admission to the bar. Pursuant to this constitutional authorization the Supreme Court has delegated certain of its responsibilities in connection with the bar examinations to the State Board of Law Examiners, whom it appoints. In view of the United States Supreme Court's holding in Monroe v. Pape, 365 U.S. 167, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961), and the cases hereinafter cited, the conclusion appears inescapable that the Board is not a "person" within the meaning of 42 U.S.C. § 1983. Nevertheless, the individual members of the Board are "persons" under the statute. Thompson v. Burke, No. 73-2085 at 1 (3d Cir. 1977) (Pennsylvania Board of Parole and Pardons is not a "person" within the meaning of 42 U.S.C. § 1983); Fischer v. Cahill, 474 F.2d 991, 992 (3d Cir. 1973) (New Jersey Prison Medical Department is not a "person"); Lehman v. City of Pittsburgh, 474 F.2d 21, 22 (3d Cir. 1973) (Civil Service Commission of Pittsburgh is not a "person"); Educational Equality League v. Tate, 472 F.2d 612, 614 n. 1 (3d Cir. 1973) (Nominating Panel appointed by the city mayor is not a "person"); Madden v. New Jersey ...


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