Leroy Whitfield, Plaintiff-appellant, v. Illinois Board of Law Examiners et al., Defendants, Lenyoung Smith, Defendant-appellee, 504 F.2d 474 (7th Cir. 1974)

Plaintiff, LeRoy Whitfield, is a law school graduate who, after failing the Illinois Bar Examination five times, brought a civil rights action¹  against the Board of Law Examiners and its individual members.²  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.

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. 232,³  77 S. Ct. 752, 1 L. Ed. 2d 796, the examination is unconstitutional.⁴ 

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, 56 S. Ct. 252, 80 L. Ed. 299. 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, 82 S. Ct. 1, 2, 7 L. Ed. 2d 5. Since plaintiff's attack on the Illinois Bar Examination is based solely upon such a chance effect, it is plainly insubstantial.⁵ 

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, 77 S. Ct. 752 (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.⁶  Douglas v. Noble, 261 U.S. 165, 43 S. Ct. 303, 67 L. Ed. 590. 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 Schward, supra, 353 U.S. at 238-240; id. at 248-249, 77 S. Ct. 752 (Frankfurter, J., concurring); cf. Theard v. United States, 354 U.S. 278, 281, 77 S. Ct. 1274, 1 L. Ed. 2d 1342. 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, 77 S. Ct. 752 (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, 43 S. Ct. at 305. 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 5.⁷ 

Finally, plaintiff alleged⁸  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.⁹  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 believe that, in the context of this case, the procedures requested by plaintiff are required by the Constitution.¹⁰ 

Plaintiff argues that these procedures were absolutely necessary to expose errors in the grading process and to discern his various strengths and weaknesses. Plaintiff, however, had been given five opportunities to write a bar examination which was offered biannually. Ill.S. Ct. Rule 704(c). There is no allegation that in the future, he will be denied the same opportunity.¹¹  As the Attorney General persuasively argues, reexamination provides an adequate means of exposing grading errors.¹²  In addition, at least one of the examiners personally discussed with plaintiff his general performance in the exam and even graded sample answers which plaintiff wrote. Given the availability of these alternative procedures, the requested procedures were not constitutionally required.

Furthermore, merely seeing his examination or comparing it with others would not allow plaintiff to expose errors or discern his abilities. These procedural rights would be virtually meaningless unless plaintiff also was able to confront the bar examiners and obtain from them explanations of their grades.¹³  Several hundred applicants fail the Illinois Bar Examination annually. Requiring an explanation for each of these applicants would place an intolerable burden upon the bar examiners. It also would place at an unfair disadvantage those applicants who were taking the exam for the first time.

As plaintiff notes, several state courts have determined, either by rule or decision, that a failing applicant should be afforded the procedures which he seeks. See, e.g., Application of Peterson, 459 P.2d 703 (Alaska 1969). These determinations, however, were made in the exercise of the courts' supervisory powers. It is axiomatic that the Fourteenth Amendment does not necessarily require those same procedural safeguards which a legislature or court may consider desirable as a matter of policy.

Plaintiff has raised two other contentions. The first, which apparently was never considered by the district court, is that defendants violated Article I, 12 of the Illinois Constitution.¹⁴  As plaintiff recognizes, this purely state claim is pendent to his federal claims. Since we have concluded that the district court properly dismissed all of these claims, it was within the court's discretion to refuse consideration of the state claim. See United Mine Workers v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed. 2d 218.¹⁵ 

Second, plaintiff contends that the district court should have entered a default judgment against defendants because their pleading in response to his complaint was filed three days late. In Duling v. Markun, 231 F.2d 833, 836 (7th Cir. 1956), cert. denied, 352 U.S. 870, 77 S. Ct. 96, 1 L. Ed. 2d 76, this court stated that, whether a default judgment should be entered, is 'a matter resting in the sound discretion of the trial judge.' We find no abuse of that discretion.

The judgment of the district court is therefore

Affirmed.