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DELGADO v. MCTIGHE

August 10, 1981

Carlos DELGADO, et al., Plaintiffs,
v.
Desmond McTIGHE, et al., Defendants



The opinion of the court was delivered by: BRODERICK

MEMORANDUM

Introduction

 The plaintiffs in this action are three Blacks and two Hispanics who failed the Pennsylvania bar examination at least once between February 1973 and July 1976. They allege that they would have received a passing grade on at least one of the bar examinations during this period if the defendants, the Commonwealth of Pennsylvania State Board of Law Examiners and its members (Board), had not on several occasions between 1973 and 1976 raised the minimum passing grade for the bar examination above its July 1972 level. The plaintiffs contend that their rights under the equal protection clause of the fourteenth amendment were violated in that: 1) the changes in the passing grades were done arbitrarily and with intent to discriminate against minority applicants; and 2) the bar examination is not rationally related to the objectives of the examination. The plaintiffs seek redress for these alleged violations under 42 U.S.C.A. §§ 1981 and 1983.

 The allegation that Blacks have been excluded by the Board from the practice of law in Pennsylvania is not new. Frankly, some of the statistics are shocking. For the ten year period from 1933 to 1943, no Black was admitted to the practice of law in Pennsylvania. In 1953, the then Chancellor of the Philadelphia Bar Association, Bernard G. Segal, appointed a Special Committee to investigate the allegation of discrimination in the grading of bar examinations. This Special Committee, which became known as the "Hastie Committee", *fn1" reported in 1954 that from July 1950 to the end of 1952, thirty Black candidates from Philadelphia County took a total of forty-three examinations, some individuals being examined two or more times, and that only six of them passed. In 1970, the then Chancellor of the Philadelphia Bar Association, Robert M. Landis, appointed a Special Committee, which became known as the "Liacouras Committee", *fn2" to "investigate the claims of possible discrimination against black law students." The Liacouras Committee Report *fn3" pointed out that Black enrollment in predominantly white law schools, which for many years had been less than 1%, showed a significant increase between 1966 and 1970 as the result of affirmative action taken to overcome the historic exclusion of Blacks. In 1971, the Board was threatened with litigation by a group represented by Paul Bender, a professor at the University of Pennsylvania Law School. However, this instant litigation, instituted in 1976, appears to be the first time that allegations of discrimination by the Board have been subjected to judicial scrutiny.

 The Court held a class certification hearing on June 22-24, 1981, and denied the plaintiffs' motion for class certification in a Memorandum and Order dated July 2, 1981. This action was tried by the Court, sitting without a jury, from July 13, 1981 to July 28, 1981. For the reasons hereinafter set forth, the Court concludes that the plaintiffs have failed to carry their burden of proof with respect to each of the two constitutional violations claimed by them.

 Background

 In addition to the testimony of the plaintiffs, the Court received testimony from four members of the Board (Desmond McTighe, Esq., Judge Justin Johnson, Judge Abraham Lipez and Judge (now Justice) Roy Wilkinson), Dean Liacouras of Temple University Law School, Professor Paul Bender of the University of Pennsylvania Law School, and such experts as Dr. James Portwood, Dr. Richard Barrett and Mr. Earl Medlinsky. On the basis of this evidence, the Court makes the following findings of fact.

 Rule 203(4) of the Pennsylvania Bar Admission Rules sets forth as a requirement for admission to the bar "satisfactory completion of a bar examination administered by or under the authority of the (Board)." The Board is composed of five members of the Pennsylvania bar appointed by the Supreme Court of Pennsylvania. The members of the Board generally sit for five year terms. During the years in question in this lawsuit, 1972-76, the following distinguished lawyers and judges were members of the Board:

 
Marvin Comisky
 
February 23, 1973 to May 15, 1975
 
Robert Dechert
 
November 21, 1933 to June 12, 1939
 
May 15, 1970 to February 23, 1973
 
John W. English, Sr.
 
May 20, 1974 to the present
 
The Honorable Justin M. Johnson
 
April 1, 1969 to the present
 
The Honorable Abraham H. Lipez
 
January 16, 1961 to January 14, 1976
 
Vice-Chairman from March 12, 1970 to January 14, 1976
 
Desmond J. McTighe
 
October 9, 1964 to the present
 
Chairman from November 3, 1973 to the present
 
Anthony S. Minisi
 
May 15, 1975 to the present
 
The Honorable Roy Wilkinson, Jr.
 
January 5, 1959 to May 20, 1974
 
Vice-Chairman from May 1, 1961 to March 12, 1970
 
Chairman from March 12, 1970 to November 3, 1973

 During the period in question in this lawsuit, the Board employed eight examiners who were responsible for the initial preparation of the bar essay questions as well as sample answers to those questions. Each examiner graded the essay examination question which he prepared. The Board also employed a Supervising Examiner who reviewed and revised the examiners' questions and sample answers and supervised the grading of the essay examination papers by the examiners. The Supervising Examiner during the period relevant to this lawsuit was William C. Storb, who first became an examiner in 1945.

 Prior to 1972, the Pennsylvania bar examination, which is given in February and July of each year, was a two-day essay test consisting first of 24 and, more recently, 16 questions on various subjects with which the Board believed individuals seeking to practice law should be familiar. In the late 1960's the National Conference of Bar Examiners (NCBE) began serious efforts to develop a multiple choice test to be administered as part of the bar examination on a national basis. This examination evolved into what is today known as the Multistate Bar Examination (MBE). Justice Wilkinson, who was then Chairman of the Board, was a member of the NCBE multistate examination policy committee responsible for the development of the MBE. Pennsylvania played a leading role in the development of the MBE.

 The MBE was first administered in February 1972, and Pennsylvania was one of six states that initially determined to include the MBE as part of its February 1972 bar examination. Since February 1972, the Pennsylvania bar examination has consisted of one day of eight essay questions ...


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