JOHNSON, Circuit Judge:
This is an appeal from the decision of the district court, dismissing plaintiffs’ complaint for failure to state a claim upon which relief can be granted. In their action against the Alabama Supreme Court and the justices of the Court and against the Board of Commissioners of the Alabama State Bar and its members, plaintiffs, appellants here, seek declaratory and injunctive relief under 42 U.S.C.A. § 1983 and 28 U.S.C.A. § 2201. Appellants challenge as violative of the Fourteenth Amendment certain rules applicable in the administration of the Alabama bar examination, including the rule limiting to five the number of times that an applicant can sit for the bar examination and the rule granting to those who fail the examination a limited right to review their papers and other passing examination papers.1
Courts should be reluctant to dismiss a complaint for failure to state a claim upon which relief can be granted. A complaint should not be dismissed on this ground “ ‘unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief’.” Quality Foods de Centro America, S.A. v. Latin American Agribusiness Development Corporation, 711 F.2d 989, 995 (11th Cir.1983) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957)). The district court in this case concluded that beyond doubt plaintiffs could not prove facts that would entitle them to relief on any of their claims. This appeal challenges the district court’s decision on only three of the grounds relied upon below.2 We agree with the conclusions of the district court on all three grounds and therefore affirm its decision.
Appellants challenge certain of the Rules Governing Admission to the Alabama State Bar.3 Specifically, appellants challenge on substantive due process and equal protec[998]*998tion grounds Rule IV D,4 which limits to five the number of times an applicant can sit for the Alabama bar examination, and on procedural due process grounds the operation together of Rule IV D and Rule VI 1(3) (unnumbered paragraph 6),5 which grants to those who write failing examination papers a limited right to review their papers and other passing papers. Appellants also challenge Rule IV D on the ground that its disproportionate impact on blacks, which occurs in the context of a history of state-sponsored, intentional discrimination against blacks in elementary and secondary education, as well as in Alabama’s law schools, violates principles of equal protection.6 We will discuss these arguments in turn.
I.
Appellants argue that the rule limiting to five the number of times one can sit for the Alabama bar examination violates due process because it creates an irrebuttable presumption of incompetence that operates against all those who fail the bar examination five times. Appellants rely upon the line of Supreme Court decisions, including Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974); Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973); and Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), in which the Court struck down as violative of due process statutory conclusive presumptions that were not necessarily and universally true but that nevertheless were employed to answer as to all individuals fact questions raised by the statutory scheme in question. Appellants here argue that the fact question of attorney competence is answered for all individuals by the rule that a person who fails the bar examination five times may not retake it, and thus may not become a member of the bar, even though it is not necessarily and universally true that all who fail the bar examination five times would be incompetent attorneys. For the reasons set forth below, we do not agree that the irrebuttable presumption doctrine is applicable in this case.
The Supreme Court in LaFleur held unconstitutional rules of the Cleveland County and Chesterfield County boards of education that required pregnant teachers to leave work, respectively, at the end of the fourth and fifth month of pregnancy. 414 U.S. at 644, 94 S.Ct. at 798. The asserted rationale for the mandatory termination rules was the necessity of keeping physically unfit teachers out of the classroom.7 Id. [999]*999at 643, 94 S.Ct. at 797. Recognizing the validity of the state’s concern, the Court nonetheless struck down the rules as a violation of due process because they created “a conclusive presumption that every pregnant teacher who reaches the fifth or sixth month of pregnancy is physically incapable of continuing,” id. at 644, 94 S.Ct. at 798, despite evidence showing that large numbers of pregnant teachers were fully capable of continuing work longer than the rules allowed. Id. at 646, 94 S.Ct. at 799. The Court concluded that the county boards, in raising a fact question, the physical capabilities of pregnant teachers, and then answering the question for all individuals with a conclusive presumption that was “neither ‘necessarily [nor] universally true’,” violated principles of due process. Id. (quoting Vlandis, supra, 412 U.S. at 452, 93 S.Ct. at 2236).
Similarly, in Vlandis, the Court struck down as a conclusive presumption violative of due process a statutory definition of residency used to fix state university tuition rates. 412 U.S. at 453, 93 S.Ct. at 2237. The Court held that Connecticut could not at once claim to be concerned with residency and at the same time deny to one seeking to meet its test of residency all opportunity to show factors bearing on that issue. Id. at 452, 93 S.Ct. at 2236.
Finally, in Stanley, the Court found vio-lative of due process an Illinois statute that denied to an unwed father, after the death of the mother, a hearing to determine parental fitness before his children could be declared wards of the state. 405 U.S. at 649, 656-57, 92 S.Ct. at 1211, 1215-16. The law presumed that all unwed fathers were unfit parents. Id. at 650, 92 S.Ct. at 1212.
These cases are fully distinguishable from the case at bar. In LaFleur, Vlandis, and Stanley, the state raised a fact question — physical capability, residency, and parental fitness, respectively — and then by statute answered the question for each individual, denying the opportunity for individuals to present evidence on the question applicable in their own cases. By contrast, the state here raises a fact question — competency to practice law — and gives individuals up to five opportunities to prove their competence. In adopting bar admission requirements, including the bar examination, the state in effect adopts a rebuttable presumption of incompetence, affords applicants five opportunities to rebut the presumption by passing the bar examination, and then essentially adopts as fact as to those individuals who fail the examination five times what it formerly presumed, their incompetency to practice law.8
Free access — add to your briefcase to read the full text and ask questions with AI
JOHNSON, Circuit Judge:
This is an appeal from the decision of the district court, dismissing plaintiffs’ complaint for failure to state a claim upon which relief can be granted. In their action against the Alabama Supreme Court and the justices of the Court and against the Board of Commissioners of the Alabama State Bar and its members, plaintiffs, appellants here, seek declaratory and injunctive relief under 42 U.S.C.A. § 1983 and 28 U.S.C.A. § 2201. Appellants challenge as violative of the Fourteenth Amendment certain rules applicable in the administration of the Alabama bar examination, including the rule limiting to five the number of times that an applicant can sit for the bar examination and the rule granting to those who fail the examination a limited right to review their papers and other passing examination papers.1
Courts should be reluctant to dismiss a complaint for failure to state a claim upon which relief can be granted. A complaint should not be dismissed on this ground “ ‘unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief’.” Quality Foods de Centro America, S.A. v. Latin American Agribusiness Development Corporation, 711 F.2d 989, 995 (11th Cir.1983) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957)). The district court in this case concluded that beyond doubt plaintiffs could not prove facts that would entitle them to relief on any of their claims. This appeal challenges the district court’s decision on only three of the grounds relied upon below.2 We agree with the conclusions of the district court on all three grounds and therefore affirm its decision.
Appellants challenge certain of the Rules Governing Admission to the Alabama State Bar.3 Specifically, appellants challenge on substantive due process and equal protec[998]*998tion grounds Rule IV D,4 which limits to five the number of times an applicant can sit for the Alabama bar examination, and on procedural due process grounds the operation together of Rule IV D and Rule VI 1(3) (unnumbered paragraph 6),5 which grants to those who write failing examination papers a limited right to review their papers and other passing papers. Appellants also challenge Rule IV D on the ground that its disproportionate impact on blacks, which occurs in the context of a history of state-sponsored, intentional discrimination against blacks in elementary and secondary education, as well as in Alabama’s law schools, violates principles of equal protection.6 We will discuss these arguments in turn.
I.
Appellants argue that the rule limiting to five the number of times one can sit for the Alabama bar examination violates due process because it creates an irrebuttable presumption of incompetence that operates against all those who fail the bar examination five times. Appellants rely upon the line of Supreme Court decisions, including Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974); Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973); and Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), in which the Court struck down as violative of due process statutory conclusive presumptions that were not necessarily and universally true but that nevertheless were employed to answer as to all individuals fact questions raised by the statutory scheme in question. Appellants here argue that the fact question of attorney competence is answered for all individuals by the rule that a person who fails the bar examination five times may not retake it, and thus may not become a member of the bar, even though it is not necessarily and universally true that all who fail the bar examination five times would be incompetent attorneys. For the reasons set forth below, we do not agree that the irrebuttable presumption doctrine is applicable in this case.
The Supreme Court in LaFleur held unconstitutional rules of the Cleveland County and Chesterfield County boards of education that required pregnant teachers to leave work, respectively, at the end of the fourth and fifth month of pregnancy. 414 U.S. at 644, 94 S.Ct. at 798. The asserted rationale for the mandatory termination rules was the necessity of keeping physically unfit teachers out of the classroom.7 Id. [999]*999at 643, 94 S.Ct. at 797. Recognizing the validity of the state’s concern, the Court nonetheless struck down the rules as a violation of due process because they created “a conclusive presumption that every pregnant teacher who reaches the fifth or sixth month of pregnancy is physically incapable of continuing,” id. at 644, 94 S.Ct. at 798, despite evidence showing that large numbers of pregnant teachers were fully capable of continuing work longer than the rules allowed. Id. at 646, 94 S.Ct. at 799. The Court concluded that the county boards, in raising a fact question, the physical capabilities of pregnant teachers, and then answering the question for all individuals with a conclusive presumption that was “neither ‘necessarily [nor] universally true’,” violated principles of due process. Id. (quoting Vlandis, supra, 412 U.S. at 452, 93 S.Ct. at 2236).
Similarly, in Vlandis, the Court struck down as a conclusive presumption violative of due process a statutory definition of residency used to fix state university tuition rates. 412 U.S. at 453, 93 S.Ct. at 2237. The Court held that Connecticut could not at once claim to be concerned with residency and at the same time deny to one seeking to meet its test of residency all opportunity to show factors bearing on that issue. Id. at 452, 93 S.Ct. at 2236.
Finally, in Stanley, the Court found vio-lative of due process an Illinois statute that denied to an unwed father, after the death of the mother, a hearing to determine parental fitness before his children could be declared wards of the state. 405 U.S. at 649, 656-57, 92 S.Ct. at 1211, 1215-16. The law presumed that all unwed fathers were unfit parents. Id. at 650, 92 S.Ct. at 1212.
These cases are fully distinguishable from the case at bar. In LaFleur, Vlandis, and Stanley, the state raised a fact question — physical capability, residency, and parental fitness, respectively — and then by statute answered the question for each individual, denying the opportunity for individuals to present evidence on the question applicable in their own cases. By contrast, the state here raises a fact question — competency to practice law — and gives individuals up to five opportunities to prove their competence. In adopting bar admission requirements, including the bar examination, the state in effect adopts a rebuttable presumption of incompetence, affords applicants five opportunities to rebut the presumption by passing the bar examination, and then essentially adopts as fact as to those individuals who fail the examination five times what it formerly presumed, their incompetency to practice law.8
Appellants argue that the state violates due process because it raises the fact question whether all who fail the bar examination five times are competent to practice law, and then it answers the question in the negative for all individuals, who do fail five times, without providing opportunity for proof in an individual case. Appellants’ focus is misdirected. The state does not ask whether a bar applicant who fails the [1000]*1000bar examination five times is competent to practice law. The state simply asks whether an applicant is competent to practice law, and then it provides the applicant five opportunities to demonstrate his or her competence.9
Failing in their argument that they have no opportunity to prove their competence, appellants argue that the “five-time rule” violates principles of due process and equal protection because it is not tailored carefully enough to fit the state purpose it is intended to promote. Appellants assert that this Court should apply the strict scrutiny standard of review and determine whether the five-time rule is necessary to achieve a compelling state interest. We disagree. Under both substantive due process and equal protection analysis, the Court must determine whether the rule is rationally related to a legitimate state purpose, and we hold that it is so related.
Appellants argue that the important liberties involved here entitle them to a higher level of scrutiny under the equal protection clause than mere rational basis review. They assert that they have a fundamental right to take the bar examination and to practice law, and that any classification that affects these rights is constitutionally permissible only if it is the least intrusive means of achieving a compelling state interest.
The Supreme Court has applied strict scrutiny analysis to statutory classifications affecting fundamental rights. See Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969) (when classification touches on fundamental right of interstate travel, its constitutionality must be judged by the stricter standard of whether it is necessary to promote a compelling state interest). The Court, however, has never held that the right to pursue a particular occupation is a fundamental right, and it has not applied strict scrutiny review to classifications affecting an individual’s pursuit of his or her occupation. On the contrary, in equal protection analysis, the Court has applied the traditional rational basis review to such statutory classifications. See Shapiro, supra, at 661, 89 S.Ct. at 1345 (Harlan, J., dissenting) (citing Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955); Kotch v. Board of River Pilot Commissioners, 330 U.S. 552, 67 S.Ct. 910, 91 L.Ed. 1093 (1947)). Other circuits that have considered the question have concluded that, in equal protection analysis, rational basis review is appropriate for classifications affecting applicants for admission to the bar. See, e.g., Poats v. Givan, 651 F.2d 495, 500 n. 12 (7th Cir.1981) (per curiam); Younger v. Colorado State Board of Law Examiners, 625 F.2d 372, 377 n. 3 (10th Cir.1980); Lombardi v. Tauro, 470 F.2d 798, 800-01 n. 4 (1st Cir.1972), cert. denied, 412 U.S. 919, 93 S.Ct. 2734, 37 L.Ed.2d 145 (1973). We join these courts in that conclusion.
[1001]*1001Equal protection analysis thus requires the Court in this case to consider whether the classification here challenged — between those who have failed the Alabama bar examination five times and all others— bears a rational relationship to a legitimate state purpose. Younger, supra, at 376-77; see Weber v. Aetna Casualty & Surety Company, 406 U.S. 164, 172, 92 S.Ct. 1400, 1405, 31 L.Ed.2d 768 (1972).
Under substantive due process analysis, rational basis review also is appropriate. Lucero v. Ogden, 718 F.2d 355, 359 (10th Cir.1983); Poats, supra, at 497; Younger, supra, at 376. “A state can require high standards of qualification, such as good moral character or proficiency in its law, before it admits an applicant to the bar, but any qualification must have a rational connection with the applicant’s fitness or capacity to practice law.” Software v. Board of Bar Examiners of New Mexico, 353 U.S. 232, 239, 77 S.Ct. 752, 756, 1 L.Ed.2d 796 (1957); see Konigsberg v. State Bar of California, 353 U.S. 252, 262, 77 S.Ct. 722, 728, 1 L.Ed.2d 810 (1957).
Thus, in answer to appellants’ due process and equal protection challenges to the five-time rule, this Court must decide whether a rational connection exists between the state’s interest in ensuring a competent bar and the limitation upon the number of times that an applicant may sit for the bar examination. We note initially that appellants do not challenge the legitimacy of the state’s interest. Appellants argue instead that the five-time rule is not rationally related to the state’s purpose. They assert that the bar examination itself/ not the five-time rule, is the mechanism that separates the competent from the incompetent prospective attorneys. Under appellants’ view, if a person would be an incompetent attorney, then he or she will not pass the bar examination, regardless of the number of opportunities afforded for taking it. Similarly, under appellants’ view, passage of the examination, regardless of the number of previous attempts, indicates that the successful examinee has attained the required level of competence. Appellants thus maintain that the rule limiting to five the number of times one can sit for the bar examination has no rational relationship to the state’s interest in identifying those who will be competent attorneys.
We do not find this argument convincing. As appellees here note, repeated failure in itself may reflect upon a person’s competency to practice law and legitimately may be considered by a state in establishing the standards for admission to its bar. Poats, supra, at 499; Younger, supra, at 377. Although on this motion to dismiss, evidence was not presented on this point, we note the decisions in Poats and Younger in which evidence was presented of the extremely low pass rates among those taking a bar examination for the fourth or fifth time. For example, the district court in Younger, 482 F.Supp. 1244 (D.Colo.1980), received evidence that pass rates among applicants taking the bar examination for the fourth or fifth time dropped sharply from the rate achieved by first-, second- and even third-timers. Id. at 1247. The pass rate for. those taking the bar for the first time was 77%. Id. From that level, it dropped to 61% for the second time, 46% the third time, and then to 20% the fourth time and 0% the fifth time. Id. Similarly, in Poats, supra, the Seventh Circuit noted that in recent Indiana bar examinations, the pass rate was about 80% for first-time examinees, while the rate for repeaters was significantly lower.
Although a person may undertake several periods of intensive study and, after several unsuccessful attempts to pass the bar, become familiar enough with the form of the examination as well as the substantive areas covered by the examination questions to pass the test, a state nevertheless may conclude that this individual has not displayed adequate ability to handle the everyday problems and pressures of a legal practice, where repeated failures, even if ultimately followed by success, can seriously injure the rights and [1002]*1002interests of the public.10 Thus, we conclude that the limitation on the number of times one can sit for the Alabama bar examination is rationally related to the state’s legitimate interest in ensuring the competency of its bar.
II.
Appellants next argue that their rights to procedural due process are infringed by the combined effect of the five-time rule and the rule granting them only a limited right to review their own examination papers. Appellants correctly make no claim to an absolute right to practice law. They claim only a significant interest in practicing their chosen profession and a right to due process before the opportunity to practice is denied them.
The importance of appellants’ interest and its entitlement to due process protection has long been recognized. See Schware v. Board of Bar Examiners of New Mexico, 353 U.S. 232, 238-39 & n. 5, 77 S.Ct. 752, 755-56 & n. 5 (1957); Tyler v. Vickery, 517 F.2d 1089, 1104 (5th Cir.1975), cert. denied, 426 U.S. 940, 96 S.Ct. 2660, 49 L.Ed.2d 393 (1976).11 To decide that an interest merits due process protection, however, is only to begin the analysis; it remains to be decided what process is due. “[W]hether due process requires a particular procedure in a given situation must be determined by balancing the individual’s interest in avoiding the loss which lack of the procedure inflicts upon him against the interests which the government seeks to advance by denying it.” Tyler, supra, at 1104 (citing Goldberg v. Kelly, 397 U.S. 254, 262-63, 90 S.Ct. 1011, 1017-18, 25 L.Ed.2d 287 (1970)).
Precedent binding upon this Court already has answered the question whether an applicant for admission to the bar is entitled to a full hearing to contest his or her failing score on the bar examination. In Tyler, the Court held that a hearing is not required to satisfy due process when the applicant has a right to retake the examination an unlimited number of times. 517 F.2d at 1103. See also Lucero v. Ogden, 718 F.2d 355 (10th Cir.1983). The only question to be determined by a hearing would be “whether a mechanical error had been made in computing the grade or the grade given by the examiner was arbitrary, capricious, and without foundation,” and not whether the examiner’s evaluation of the paper was “correct,” and the Court concluded that, compared to a hearing, reexamination would be a more speedy and at least as effective method for determining whether an error had occurred. Id. at 1104. It would be more speedy because, while bar examinations in Georgia are administered biannually, a hearing procedure could subject the examinee to a waiting period much longer than six months before his or her case could be considered. Id. Additionally, because the only question on review would be whether mechanical error or arbitrary conduct caused the failing grade and because the chances are so small that the same individual would be subject to the same error or caprice two times, reexamination would be highly effective in detecting error or arbitrariness. Id. Moreover, the Court found that the state had a substantial interest in avoiding the tremendous administrative burden that a hearing procedure would impose, especially when the gains realized from this added burden would be so minimal. Id, at 1105.
Tyler, of course, does not answer the question presented by this case because it involved a rule that permitted applicants unlimited opportunities to retake the exam-[1003]*1003¡nation, while the rule challenged here places a five-time limitation on reexamination. Nevertheless, the reasoning of Tyler guides our decision here. The factors of speed and administrative burden are the same in this case as in Tyler. Alabama, like Georgia, administers the bar examination every six months. The expectation of delay from a procedure that allows each failing examinee a full hearing and the concern over the burden this would impose on the state are equally reasonable here. Thus, the only factor that might weigh differently in this case is the effectiveness of the five-time rule compared to the unlimited-examination rule in detecting grading error and arbitrary conduct.
The extreme improbability that mechanical error or arbitrary conduct would strike the same individual five times ensures the effectiveness of the Alabama rule. The Court in Tyler noted that, even making the generous assumption that one out of every one hundred examinees who should pass the examination fails it due to arbitrary grading or error, the chances are only one in a million that the same individual would be the victim of error or caprice in two examinations. 517 F.2d at 1104. In Poats v. Givan, 651 F.2d 495 (7th Cir.1981) (per curiam), the Court in upholding against constitutional attack Indiana’s four-time examination limitation calculated that the chances are only one in one hundred million that the same individual would be the victim of mechanical or arbitrary error on four examinations. Id. at 499. As the district court in this case noted, the probability is staggeringly low that an examinee who received failing scores on the bar examination five different times was each time the victim of error. Thus, even with a five-time limitation, reexamination is a highly effective method of ensuring that mere mechanical error or arbitrary conduct is not responsible for an applicant’s failure.
Furthermore, applicants to the Alabama bar are afforded additional protection against error and caprice. Rule VI 1(3), challenged here by appellants, permits examinees to review their own examination papers “for the purpose of ascertaining that grades were transcribed correctly.” Id.12
Therefore, we hold that the rules applicable to the Alabama bar examination, limiting to five the number of times an applicant can sit for the bar examination and granting a limited right to review one’s own examination paper, afford applicants adequate due process protections against the possibility that their interests in practicing law will be limited or denied improperly.
III.
Finally, appellants argue that the five-time rule has a racially disparate effect, which when combined with Alabama’s history of state-sponsored discrimination against blacks attempting to pursue careers in the law requires this Court to subject the rule to strict scrutiny review under the equal protection clause. Appellants also argue that even if the rule is not per se discriminatory, its disproportionate effect at least discriminates against those black applicants, including appellant Varner, who attended segregated elementary and secondary schools in Alabama and consequently received inferior educations.
Appellants nowhere allege that those who adopted or now administer the five-time rule are chargeable with intentional racial discrimination, and for this reason their facial and applied challenges to the rule must fail. The Supreme Court in Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), held that proof of discriminatory purpose is required to show a violation of the equal protection clause. Id. at 242, 96 S.Ct. at 2049. “Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious [1004]*1004racial discrimination forbidden by the Constitution. Standing alone, it does not trigger the rule that racial classifications are to be subjected to the strictest scrutiny and are justifiable only by the weightiest' of considerations.” Id. (citations omitted).
Although appellants allege in their brief that Alabama historically subjected to intentional discrimination blacks who attempted to pursue careers in the law, they do not claim that their own efforts to become lawyers were obstructed by intentional racial discrimination. Moreover, we must keep in mind that the challenge raised here is not to those past practices aimed at excluding blacks from the legal profession, but rather to the disproportionate impact on blacks of the present rule that limits the number of times an applicant can sit for the bar examination.13 Appellants do not allege that this rule was adopted or is maintained for the purpose of discriminating against blacks. Similarly, although appellant Varner alleges that he and other black applicants themselves were subjected to intentional racial discrimination in Alabama by virtue of their attendance of segregated elementary and secondary schools, he does not here challenge that past discrimination, but rather the effect on him of the five-time rule.
Finally, appellants allege that when the five-time rule was adopted, appellees knew or should have known that the rule would have a racially discriminatory impact. This allegation also is insufficient to support an equal protection claim. In Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979), the Supreme Court held that to prove a violation of the equal protection clause, plaintiffs must show that the challenged action was “taken at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” Id. at 279, 99 S.Ct. at 2296. Appellants here make no charge that appellees adopted the five-time rule even in part because of its discriminatory impact on blacks.
IV.
Our careful consideration of the arguments raised in this appeal leads us to conclude that the district court properly determined that appellants could prove no set of facts that would entitle them to relief. Its decision to dismiss the complaint, for failure to state a claim upon which relief can be granted, therefore, is AFFIRMED.