The 1984 Lawsuit Over the Colorado Bar Exam

a wall of old books is dimly lit by a nearby window.
In June 1984, four Hispanic law school graduates filed a $50 million lawsuit in Denver federal court over the way the Colorado bar exam was scored the previous summer. / Photo by Alfons Morales on Unsplash.

In June 1984, four Hispanic law school graduates filed a $50 million lawsuit in Denver federal court over the way the Colorado bar exam was scored the previous summer. El Gallo, a newspaper started by Chicano civil rights leader Corky Gonzales, published a report from a Rocky Mountain News staff writer that explained the complaint alleged “a complicated numerical formula used in grading the exam caused them to flunk.” 

According to the report in El Gallo, of the 40 Hispanic test takers in 1983, 31 failed, and of the 27 Black test takers, 25 failed. The lawsuit named the “Colorado Supreme Court and its judges and the Colorado State Board of Law Examiners and its past and present directors” as defendants. The complaint also alleged the defendants were responsible for informal policies and customs that included harassment and suppression of Hispanic and Black students in violation of their constitutional rights. The plaintiffs claimed the policies reduced the number of Hispanic and Black attorneys practicing in the state.

Two of the plaintiffs, Felix Garcia and Eduardo Lucero, represented themselves in the suit. The trial court wasn’t swayed by Garcia and Lucero and ordered summary judgment against them. By April 1985, an appeal made its way to the 10th Circuit Court of Appeals. 

The three-judge panel reviewing the appeal determined no oral arguments were needed in this case. 

The opinion explained that “With respect to the Sherman Act violation, the crux of the plaintiffs’ argument is that Colorado’s system of grading the bar examination on a curve bears no relationship to competency but is designed only to limit the number of licensed attorneys, thus impeding competition.” The panel went on to note that “[a] virtually identical claim was recently rejected by the Supreme Court in Hoover v. Ronwin.”

In the 1982 Harlow v. Fitzgerald case, the U.S. Supreme Court held that “executive branch officials are entitled to immunity for actions they could not have known would be a violation of plaintiff’s constitutional rights.” The trial court relied upon Harlow to dismiss the 1984 lawsuit against the defendants and the 10th Circuit didn’t find any error in that analysis. But on appeal, Garcia and Lucero argued that even if Harlow applied, “it would not apply to the prayer for injunctive relief in their complaint.” 

The 10th Circuit ruled it didn’t need to reach that issue because no basis was noted “in the record on which the district court could have relied to grant injunctive relief.” 

“We note that the record reflects that plaintiffs came dangerously close to putting all their eggs in their antitrust basket,” the 10th Circuit panel wrote. “They conceded to the trial court that if the Supreme Court overturned Ronwin (as it did), they would be ‘mooted out’ on antitrust claims. In any event, they failed to present to the trial court evidence or argument sufficient to give the court a basis to deny summary judgment against them.” 

The 10th Circuit went on to say it may “have been possible to develop a theory that a racially focused statement about failing more minority applicants made by a justice of the Colorado Supreme Court coupled with a coincidental change in the passing standard and a high minority fail rate was sufficient evidence of disparate treatment to survive a motion for summary judgment.” But the federal appeals circuit noted that “in pursuit of their more promising antitrust theory, plaintiffs elected to argue and produce evidence that the passing grade had remained constant over a long period of time, antedating the justice’s comments” 

“The uncontroverted evidence showed that the grading of the examinations was anonymous and plaintiffs concede the test was not improperly skewed against minorities,” the 10th Circuit panel concluded. “At best, their record shows some disparate impact. But the impact is not significant enough or sufficiently supported by other evidence to show the kind of purposeful discrimination mandated by Washington v. Davis.”

The panel affirmed the dismissal of the case.

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