965 F.

2d 1262

Dana SCHUMACHER, Leroy Hodge, Appellants,

v.
Robert N.C. NIX, Jr., Chief Justice of the Supreme Court of
Pennsylvania, Rolf Larsen, Justice of the Supreme Court of
Pennsylvania, John P. Flaherty, Justice of the Supreme Court
of Pennsylvania, James T. McDermott, Justice of the Supreme
Court of Pennsylvania, Stephen A. Zappala, Justice of the
Supreme Court of Pennsylvania, Nicholas P. Papadakos,
Justice of the Supreme Court of Pennsylvania, Ralph J.
Cappy, Justice of the Supreme Court of Pennsylvania, Patrick
Tassos, Executive Director of the Pennsylvania Board of Law
Examiners.
No. 91-3666.

United States Court of Appeals,

Third Circuit.
Argued April 6, 1992.
Decided June 3, 1992.

Jules Lobel (argued), Pittsburgh, Pa., for appellants.

A. Taylor Williams (argued), Supreme Court of Pennsylvania,
Philadelphia, Pa., for appellees.
Before: GREENBERG and SCIRICA, Circuit Judges, and DEBEVOISE,
District Judge* .
OPINION OF THE COURT
SCIRICA, Circuit Judge.

This case presents an equal protection challenge to Pennsylvania Bar

Admission Rule 203(a)(2)(ii), which governs the eligibility of graduates of
unaccredited law schools to sit for the Pennsylvania bar examination. The

district court entered summary judgment for defendants on the ground that the
Rule is rationally related to Pennsylvania's interest in securing mutual treatment
for its attorneys seeking admission to the bars of other states. We will affirm.
2

* Plaintiffs Dana Schumacher and Leroy Hodge are graduates of the People's
College of Law in California, which is not accredited by the American Bar
Association. They have taken and passed the California first-year law students'
examination, professional responsibility examination, and general bar
examination. Plaintiffs are members in good standing of the California bar, and
have practiced law in that state for more than five years.

Plaintiffs moved to Pennsylvania in 1987. Since then they have been admitted
to the bars of the United States District Court for the Western District of
Pennsylvania, the United States Court of Appeals for the Third Circuit, and the
United States Supreme Court. Plaintiffs have been unable to gain admission to
the Pennsylvania bar, however, because they are ineligible to sit for the
Pennsylvania bar examination.1

As a general matter, only graduates of law schools accredited by the ABA are
eligible to sit for the Pennsylvania bar examination. Pa.B.A.R. 203(a)(2)(i).
There is an exception, however, for graduates of unaccredited law schools who
are members in good standing of the bar of a "reciprocal state" and have
practiced law there for five years. Id. 203(a)(2)(ii).2 "Reciprocal state" is
defined as "[a] state having a reciprocal agreement or arrangement with
[Pennsylvania] concerning admission to the bar." Id. 102(a). In practice, the
Pennsylvania Board of Law Examiners has accorded reciprocal status to those
states which permit experienced Pennsylvania attorneys who are graduates of
accredited law schools to waive into their bar without taking an examination.3

California is not considered a reciprocal state by the Board of Law Examiners,

because it will not allow Pennsylvania attorneys, whether graduates of
accredited law schools or not, to become members of its bar without taking an
examination. Accordingly, although plaintiffs are members in good standing of
the California bar and have practiced law there for five years, they are
ineligible to sit for the Pennsylvania bar examination. To become eligible,
plaintiffs would have to either obtain a degree from an accredited law school or
become members in good standing of the bar of a reciprocal state and practice
law there for five years. See id. 203(a)(2)(ii).

On August 29, 1990, plaintiffs filed this 42 U.S.C. 1983 action in federal
district court seeking a declaration that Rule 203(a)(2)(ii) is unconstitutional

and an injunction preventing its enforcement. Defendants are the Chief Justice
and Justices of the Pennsylvania Supreme Court, who promulgated Rule 203(a)
(2)(ii), see 42 Pa.Cons.Stat.Ann. 1701 & 1722(a)(1), and the Executive
Director of the Pennsylvania Board of Law Examiners, who is responsible for
implementing the Rule, see Pa.B.A.R. 104(c).
7

In their complaint, plaintiffs allege that Rule 203(a)(2)(ii) violates the Equal
Protection Clause of the Fourteenth Amendment. U.S. Const. amend. XIV,
2.4 They assert that the Rule substantially interferes with their fundamental
right to interstate travel by discouraging them from moving to Pennsylvania,
and is invalid under the strict scrutiny standard of equal protection analysis.5 In
the alternative, they contend that the Rule cannot pass the minimum rational
basis test, because there is no logical connection between whether a state is
considered reciprocal by the Pennsylvania Board of Law Examiners and
whether it accords mutual treatment to Pennsylvania attorneys who are
graduates of unaccredited law schools.

After both parties sought summary judgment, a magistrate judge recommended

that summary judgment be granted for defendants. Rejecting plaintiffs'
argument that strict scrutiny applied, he held that Rule 203(a)(2)(ii) passed
muster under rational basis review. The district court issued a memorandum
and order adopting the magistrate judge's recommendation. Schumacher v. Nix,
No. 90-1431, 1991 WL 346074 (W.D.Pa. Aug. 27, 1991). This appeal
followed.

II
9

We have jurisdiction under 28 U.S.C. 1291.6 At issue is whether Rule 203(a)

(2)(ii) violates plaintiffs' right to equal protection of the laws. Our review of the
district court's grant of summary judgment for defendants is plenary. Sacred
Heart Medical Ctr. v. Sullivan, 958 F.2d 537, 543 (3d Cir.1992). We apply the
same principles governing the district court's determination whether to grant
summary judgment, and must be convinced that defendants have successfully
demonstrated "that there is no genuine issue as to any material fact and that
[they are] ... entitled to judgment as a matter of law." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).

10

* The threshold question is what standard of equal protection analysis governs

our review of Rule 203(a)(2)(ii). As a general matter, economic and social
legislation7 is subject to rational basis review, under which a law need only be
"rationally related to a legitimate state interest." City of New Orleans v. Dukes,
427 U.S. 297, 303, 96 S.Ct. 2513, 2517, 49 L.Ed.2d 511 (1976) (per curiam).

However, where such legislation establishes "a classification [that] trammels

fundamental personal rights or is drawn upon inherently suspect distinctions
such as race, religion, or alienage," id., it must meet the strict scrutiny standard,
under which a law must be narrowly tailored to further a compelling
government interest. See City of Cleburne v. Cleburne Living Ctr., Inc., 473
U.S. 432, 440, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985).
11

As we have noted, plaintiffs argue that we must subject Rule 203(a)(2)(ii) to

strict scrutiny, because it substantially burdens their right to travel by deterring
them from migrating to Pennsylvania. The district court disagreed, and applied
rational basis review instead. It found the right to travel cases cited by plaintiffs
inapposite, because Rule 203(a)(2)(ii) does not "condition the receipt of a
benefit on a form of in-state residency." And even though the Rule has the
"practical effect" of making plaintiffs ineligible to practice law in Pennsylvania,
the district court concluded that it does not so impinge plaintiffs' "freedom of
movement" as to trigger strict scrutiny. We agree.

12

"[F]reedom to travel throughout the United States has long been recognized as a
basic right under the Constitution." United States v. Guest, 383 U.S. 745, 758,
86 S.Ct. 1170, 1178, 16 L.Ed.2d 239 (1966). Although the Supreme Court has
declined to "ascribe the source of this right ... to a particular constitutional
provision," Shapiro v. Thompson, 394 U.S. 618, 630, 89 S.Ct. 1322, 1329, 22
L.Ed.2d 600 (1969), it has been said that the right to interstate travel finds its
"most forceful expression in the context of equal protection analysis," Zobel v.
Williams, 457 U.S. 55, 67, 102 S.Ct. 2309, 2316, 72 L.Ed.2d 672 (1982)
(Brennan, J., concurring). Cf. Lutz v. City of York, 899 F.2d 255, 258-68 (3d
Cir.1990) (concluding that the right to intrastate travel emanates from the
substantive component of the Fourteenth Amendment Due Process Clause).

13

The Supreme Court's modern right to travel jurisprudence originated in Shapiro

v. Thompson. There the Supreme Court struck down under strict scrutiny a
durational residency requirement for welfare benefits. Following Shapiro, the
Court applied strict scrutiny in striking down durational residency requirements
to vote, Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274
(1972); and to receive free nonemergency medical care, Memorial Hosp. v.
Maricopa County, 415 U.S. 250, 258, 94 S.Ct. 1076, 1082, 39 L.Ed.2d 306
(1974). But cf. Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532
(1975) (upholding durational residency requirement for in-state divorce).8

14

In Zobel v. Williams, however, the Court employed rational basis review in

striking down a legislative scheme for distribution of surplus oil revenues to
citizens based on duration of residency. Three years later, in Hooper v.

Bernalillo County Assessor, 472 U.S. 612, 105 S.Ct. 2862, 86 L.Ed.2d 487
(1985), the Court applied rational basis review in striking down a limited
property tax exemption for Vietnam veterans with residency prior to May 8,
1976. In Attorney General of New York v. Soto-Lopez, 476 U.S. 898, 106 S.Ct.
2317, 90 L.Ed.2d 899 (1986), a plurality of the Court applied strict scrutiny to a
civil service preference for Vietnam veterans with residency at the time they
entered military service, but the fifth and sixth votes for striking down the
preference were cast by Justices applying rational basis review.
15

The Supreme Court has yet to articulate why it has applied rational basis review
in some right to travel cases and strict scrutiny in others, except to say that
where a law cannot meet the minimum rationality requirement there is no need
to undertake a more searching inquiry. See Zobel, 457 U.S. at 60-61, 102 S.Ct.
at 2312-13; Soto-Lopez, 476 U.S. at 912, 106 S.Ct. at 2325-26 (Burger, C.J.,
concurring). Plaintiffs maintain that the proper level of equal protection
analysis is dependent on the degree to which the right to travel is infringed,
and, because Rule 203(a)(2)(ii) substantially burdens their right to travel, we
must subject it to strict scrutiny. Although the extent to which the right to travel
is impinged may affect the standard of equal protection review, we cannot
agree that the strict scrutiny standard applies here.

16

As the preceding discussion illustrates, the Shapiro line of cases has, without
exception, involved challenges to state laws that create "distinctions between
newcomers and longer term residents." Zobel, 457 U.S. at 60 n. 6, 102 S.Ct. at
2312-13 n. 6. As the district court observed, however, Rule 203(a)(2)(ii) neither
conditions the receipt of in-state benefits on residency nor classifies applicants
on the basis of residency. Under the Rule, Pennsylvania graduates of
unaccredited law schools must meet the same requirements to sit for the
Pennsylvania bar examination as nonresident graduates of unaccredited law
schools.

17

This is not to say that Rule 203(a)(2)(ii) is no impediment to plaintiffs' freedom

of movement. Surely, the Rule has some deterrent effect on nonresident
attorneys who wish to migrate to Pennsylvania but choose not to because they
are ineligible to sit for the Pennsylvania bar examination. However, the
Constitution does not guarantee that citizens of State A may move to State B
and enjoy the same privileges they did as citizens of State A, only that citizens
of State A may move to State B and be treated on similar terms as the citizens
of State B. See Toomer v. Witsell, 334 U.S. 385, 395, 68 S.Ct. 1156, 1161-62,
92 L.Ed. 1460 (1948) (construing U.S. Const. Art. IV, 2). Nor does it "require
that because a lawyer has been admitted to the bar of one State, he or she must
be allowed to practice in another." Leis v. Flynt, 439 U.S. 438, 443, 99 S.Ct.

698, 701, 58 L.Ed.2d 717 (1979) (per curiam).

18

Therefore, because Rule 203(a)(2)(ii) neither establishes a classification based

on residency nor erects a barrier to migration, we believe rational basis review
applies here.9 We are not alone in this view. The courts that have considered
equal protection challenges to state bar rules have uniformly applied rational
basis review. See, e.g., Nordgren v. Hafter, 789 F.2d 334 (5th Cir.), cert.
denied, 479 U.S. 850, 107 S.Ct. 177, 93 L.Ed.2d 113 (1986); Lupert v.
California State Bar, 761 F.2d 1325 (9th Cir.), cert. denied and appeal
dismissed, 474 U.S. 916, 106 S.Ct. 241, 88 L.Ed.2d 251 (1985); Salibra v.
Supreme Court of Ohio, 730 F.2d 1059 (6th Cir.), cert. denied, 469 U.S. 917,
105 S.Ct. 295, 83 L.Ed.2d 230 (1984); Lowrie v. Goldenhersh, 716 F.2d 401
(7th Cir.1983). And at least two courts have embraced the right to travel
analysis we adopt here.

19

In Moore v. Supreme Court of South Carolina, 447 F.Supp. 527 (D.S.C.1977),

aff'd without op., 577 F.2d 735 (4th Cir.), cert. denied, 439 U.S. 984, 99 S.Ct.
574, 58 L.Ed.2d 655 (1978), the district court dismissed a right to travel
challenge to a South Carolina bar rule that made all graduates of unaccredited
law schools ineligible to practice law in that state. The plaintiff in Moore
asserted that the rule impinged his right to travel by not allowing him "to pursue
his chosen vocation" in South Carolina, thus triggering strict scrutiny. Id. at
530. The district court disagreed.

20

It noted the "crucial factual distinction" between laws that create classifications
based on residency, like those challenged in the "Shapiro line of cases," and
laws that create classifications unrelated to residency. Because the challenged
rule distinguished only "between those who have graduated from ABA
approved law schools and those who have not," the district court found the
Supreme Court's right to travel cases "inapplicable." Therefore, although the
rule "clearly discourage[d] plaintiff from traveling to South Carolina for the
purpose of establishing a residence," the court held that rational basis review
applied. Id.

21

The Moore court relied in part on Hawkins v. Moss, 503 F.2d 1171 (4th
Cir.1974), cert. denied, 420 U.S. 928, 95 S.Ct. 1127, 43 L.Ed.2d 400 (1975).
There the court of appeals rejected a right to travel challenge to a South
Carolina bar rule that exempted from the general examination requirement
experienced attorneys from reciprocal states but not similarly situated attorneys
from nonreciprocal states. The court stated:

[T]he "right to travel" ... is not to be construed to mean that a citizen carries with
22

him from state to state an absolute right of comity to practice, not a "common
occupation," but a profession, which is properly subject to state regulation, in any
state to which he travels.... The exercise by a state of power to regulate reasonably
the practice of law within its jurisdiction and to require of any applicant, whether a
resident or a migrant, that he demonstrate sufficient proficiency in the law as a
prerequisite to a license to practice, is, as we have seen perfectly permissible and
represents no violation ... of the Fourteenth Amendment.
23

Id. at 1178-79 (emphasis added). Cf. Shenfield v. Prather, 387 F.Supp. 676,
683-86 (N.D.Miss.1974) (undertaking right to travel analysis of state bar rule
requiring attorneys from nonreciprocal states to sit for bar examination but
concluding that rational basis review applied).

24

Finally, our conclusion that rational basis review applies here squares with the
deference the Supreme Court has long afforded states in regulating the practice
of law and admission to the bar. See Schware v. Board of Bar Examiners, 353
U.S. 232, 239, 77 S.Ct. 752, 756, 1 L.Ed.2d 796 (1957) ("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.")
(emphasis added). See also District of Columbia Court of Appeals v. Feldman,
460 U.S. 462, 484 n. 16, 103 S.Ct. 1303, 1315-16 n. 16, 75 L.Ed.2d 206 (1983);
Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423,
434-35, 102 S.Ct. 2515, 2522-23, 73 L.Ed.2d 116 (1982).

B
25

Having concluded that rational basis review governs our equal protection
analysis of Rule 203(a)(2)(ii), the next question is whether the Rule passes
muster under this standard. The district court determined that Rule 203(a)(2)(ii)
is rationally related to Pennsylvania's interest in securing mutual treatment for
its attorneys seeking admission to the bars of other states. Plaintiffs argue that
the Rule cannot further Pennsylvania's reciprocity interest, because the
Pennsylvania Board of Law Examiners has not conditioned the grant of
reciprocal status on whether a state accords mutual treatment to Pennsylvania
attorneys who are graduates of unaccredited law schools.

26

State laws that neither employ a suspect classification nor impinge a

fundamental right are "entitled to a presumption of validity against attack under
the Equal Protection Clause." Parham v. Hughes, 441 U.S. 347, 351, 99 S.Ct.
1742, 1745, 60 L.Ed.2d 269 (1979). Cf. City of Cleburne v. Cleburne Living
Ctr., Inc., 473 U.S. at 440, 105 S.Ct. at 3254 ("[T]he Constitution presumes that

even improvident decisions will eventually be rectified by the democratic

processes."). This presumption finds its expression in the rational basis test,
which requires only that a law "classify the persons it affects in a manner
rationally related to legitimate governmental objectives." Schweiker v. Wilson,
450 U.S. 221, 230, 101 S.Ct. 1074, 1080-81, 67 L.Ed.2d 186 (1981).
27

Rational basis review accords great deference "to legislative determinations as

to the desirability of particular statutory discriminations." City of New Orleans
v. Dukes, 427 U.S. at 303, 96 S.Ct. at 2516. Under this standard, the Supreme
Court has said that "a statutory distinction does not violate the Equal Protection
Clause 'if any state of facts reasonably may be conceived to justify it,' "
Sullivan v. Stroop, 496 U.S. 478, 110 S.Ct. 2499, 2504, 110 L.Ed.2d 438
(1990) (quoting Bowen v. Gilliard, 483 U.S. 587, 601, 107 S.Ct. 3008, 3017, 97
L.Ed.2d 485 (1987)), and that "rational distinctions may be made with
substantially less than mathematical exactitude," City of New Orleans, 427 U.S.
at 303, 96 S.Ct. at 2517.

28

Of course, rational basis review is not "entirely 'toothless.' " Murillo v.

Bambrick, 681 F.2d 898, 905 n. 15 (3d Cir.), cert. denied, 459 U.S. 1017, 103
S.Ct. 378, 74 L.Ed.2d 511 (1982). "A classification 'must be reasonable, not
arbitrary, and must rest upon some ground of difference having a fair and
substantial relation to the object of the legislation, so that all persons similarly
circumstanced shall be treated alike.' " Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct.
251, 254, 30 L.Ed.2d 225 (1971) (quoting F.S. Royster Guano Co. v. Virginia,
253 U.S. 412, 415, 40 S.Ct. 560, 561-62, 64 L.Ed. 989 (1920)). Laws that
cannot meet this minimum rationality requirement are constitutionally infirm.
See, e.g., Jimenez v. Weinberger, 417 U.S. 628, 94 S.Ct. 2496, 41 L.Ed.2d 363
(1974); Delaware River Basin Comm'n v. Bucks County, 641 F.2d 1087 (3d
Cir.1981).

29

To determine whether Rule 203(a)(2)(ii) passes rational basis review, we must

first "identify with particularity the precise classification alleged to be
irrational." Murillo, 681 F.2d at 906. The challenged classification here is
between similarly situated attorneys in reciprocal and nonreciprocal states who
have graduated from unaccredited law schools, are members in good standing
of the bar, and have practiced law for five years. Under Rule 203(a)(2)(ii), only
experienced attorneys who are graduates of unaccredited law schools from
reciprocal states are eligible to sit for the Pennsylvania bar examination.

30

As we have noted, although plaintiffs are members in good standing of the

California bar and have practiced law there for five years, they are ineligible to
sit for the Pennsylvania bar examination because California is not considered a

reciprocal state by the Pennsylvania Board of Law Examiners. Of course, as

defendants point out, plaintiffs would be eligible to sit for the Pennsylvania bar
examination if they had graduated from an accredited law school. See
Pa.B.A.R. 203(a)(2)(i). But this is not relevant to our equal protection inquiry.
Having decided to allow some graduates of unaccredited law schools to sit for
its bar examination (i.e., those who are experienced attorneys from reciprocal
states), Pennsylvania cannot deny this privilege to similarly situated graduates
of unaccredited law schools (i.e., those who are experienced attorneys from
nonreciprocal states) without meeting the minimum rationality requirement.
See Lindsey v. Normet, 405 U.S. 56, 77, 92 S.Ct. 862, 876, 31 L.Ed.2d 36
(1972); Hetherton v. Sears, Roebuck & Co., 652 F.2d 1152, 1157-58 (3d
Cir.1981).10
31

We must decide whether Pennsylvania has a legitimate interest in classifying

experienced attorneys who are graduates of unaccredited law schools on the
basis of whether they are members of the bar of a reciprocal state, and, if so,
whether Rule 203(a)(2)(ii) is rationally related to this interest. It is undisputed
that the Rule rests upon a legitimate state interest. As the district court
observed, the Rule is intended to "secure[ ] for Pennsylvania attorneys who
decide to relocate, the advantage of favorable terms of admission to another
state's bar by offering that same advantage to attorneys of such other states that
will reciprocate." And it is established that such reciprocity provisions are a
valid exercise of state power, because they help ease the burdens of relocation
for resident attorneys seeking admission to the bars of other states. See
Hawkins v. Moss, 503 F.2d at 1176-77; Goldsmith v. Pringle, 399 F.Supp. 620,
623 (D.Colo.1975).11

32

The pivotal question here is whether Rule 203(a)(2)(ii) reasonably furthers

Pennsylvania's interest in securing mutual treatment for its attorneys seeking
admission to the bars of other states. As we have noted, plaintiffs assert that the
Rule is not rationally related to this objective, because there is no logical
connection between whether a state is considered reciprocal by the
Pennsylvania Board of Law Examiners and whether that state accords mutual
treatment to Pennsylvania attorneys who are graduates of unaccredited law
schools. Neither the district court nor defendants squarely addressed this
argument.

33

Moreover, the cases rejecting equal protection challenges to reciprocity

provisions similar to Rule 203(a)(2)(ii) provide no assistance on this point. See,
e.g., Hawkins v. Moss, 503 F.2d 1171 (rejecting challenge to state bar rule
exempting from general bar examination requirement experienced attorneys
from reciprocal states); Shenfield v. Prather, 387 F.Supp. 676 (same). The

focus in those cases was on whether the reciprocity provisions were enacted
pursuant to a legitimate state interest, not whether they were rationally related
to that interest. Therefore, the courts had no occasion to consider the type of
challenge presented here.
34

On its face, Rule 203(a)(2)(ii) would seem to further Pennsylvania's reciprocity

interest. It distinguishes between similarly situated graduates of unaccredited
law schools from reciprocal and nonreciprocal states, and "reciprocal state" is
defined as "[a] state having a reciprocal agreement or arrangement with
[Pennsylvania] concerning admission to the bar." Pa.B.A.R. 102(a).
Accordingly, under the conventional notion of "reciprocity" at least,12 it would
seem clear that Pennsylvania could reasonably have conceived that the Rule
would promote its interest in securing mutual treatment for its attorneys seeking
admission to the bars of other states.

35

But this does not end the inquiry, for a classification which is constitutional on
its face may be unconstitutional as applied. See Yick Wo v. Hopkins, 118 U.S.
356, 373-74, 6 S.Ct. 1064, 1072-73, 30 L.Ed. 220 (1886). And even under
rational basis review, "the constitutionality of a statute predicated upon the
existence of a particular state of facts may be challenged by showing to the
court that those facts have ceased to exist," United States v. Carolene Prods.
Co., 304 U.S. 144, 153, 58 S.Ct. 778, 784, 82 L.Ed. 1234 (1938), though such
challenges cannot succeed where it is "at least debatable" that the classification
is rational, Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464, 101
S.Ct. 715, 723-24, 66 L.Ed.2d 659 (1981). See also Tussman & tenBroek,
supra note 6, at 367-68.

36

Here it is the implementation of Rule 203(a)(2)(ii) by the Pennsylvania Board

of Law Examiners which has given rise to plaintiffs' equal protection challenge.
As plaintiffs point out, it is difficult to glean any nexus between whether a state
has reciprocity with Pennsylvania and whether it accords mutual treatment to
Pennsylvania attorneys who are graduates of unaccredited law schools. Of the
twenty-six jurisdictions that had reciprocity with Pennsylvania in July 1987,13
twelve would not allow Pennsylvania attorneys who are graduates of
unaccredited law schools to become members of their bar;14 and of the
jurisdictions that did not have reciprocity at that time, ten would permit
Pennsylvania attorneys who are graduates of unaccredited law schools to
become members of their bar.15

37

As plaintiffs point out, the only uniform difference between how reciprocal and
nonreciprocal states treat Pennsylvania attorneys is that reciprocal states allow
experienced Pennsylvania attorneys who are graduates of accredited law

schools to waive into their bar without taking an examination. Therefore, it

would seem that the Board of Law Examiners has conditioned the grant of
reciprocal status on whether a state accords mutual treatment to Pennsylvania
attorneys who are graduates of accredited law schools without regard to
whether that state accords mutual treatment to Pennsylvania attorneys who are
graduates of unaccredited law schools.16 As such, plaintiffs argue that Rule
203(a)(2)(ii) cannot further the state's interest in securing mutual treatment for
its attorneys who are graduates of unaccredited law schools.
38

Given the lack of nexus between whether a state is considered reciprocal by the
Board of Law Examiners and whether it accords similar treatment to
Pennsylvania attorneys who are graduates of unaccredited law schools, we
agree that it is difficult to see how Pennsylvania's reciprocity interest is
furthered as to these attorneys.17 However, this does not decide the
constitutionality of Rule 203(a)(2)(ii), because plaintiffs have framed
Pennsylvania's reciprocity interest too narrowly. Pennsylvania has a legitimate
interest in securing mutual treatment for all its attorneys seeking admission to
the bars of other states, whether they are graduates of accredited or
unaccredited law schools. Therefore, even if Rule 203(a)(2)(ii) does not
promote Pennsylvania's reciprocity interest as to its attorneys who are graduates
of unaccredited law schools, we think the Rule would pass rational basis
review if it furthered the state's reciprocity interest as to its attorneys who are
graduates of accredited law schools.

39

Viewed in this light, we believe Rule 203(a)(2)(ii) is rationally related to

Pennsylvania's reciprocity interest. By allowing attorneys who are graduates of
unaccredited law schools from reciprocal states to sit for its bar examination,
Pennsylvania may entice states to enter into reciprocal agreements with it and
thereby promote its interest in securing similar treatment for its attorneys who
are graduates of accredited law schools. We think it sufficient, for purposes of
rationality review, that Rule 203(a)(2)(ii) furthers Pennsylvania's reciprocity
interest in this respect.

40

Relying on dictum in Medora v. Colautti, 602 F.2d 1149 (3d Cir.1979),18

plaintiffs argue that Pennsylvania cannot "hold out-of-state non-ABA law
school graduates hostage in order to achieve favorable treatment for its
experienced lawyers who graduated from ABA-approved law schools." But
although Rule 203(a)(2)(ii) may advance the interests of Pennsylvania
attorneys who are graduates of accredited law schools and not those who are
graduates of unaccredited law schools, there is no evidence that Pennsylvania
intended to "harm" its attorneys who are graduates of unaccredited law schools
to advance the interests of its attorneys who are graduates of accredited law

schools. Cf. United States Dep't of Agric. v. Moreno, 413 U.S. 528, 93 S.Ct.
2821, 37 L.Ed.2d 782 (1973).19 And at least under rational basis review, it is
clear that states may draw classifications "with substantially less than
mathematical exactitude," City of New Orleans, 427 U.S. at 303, 96 S.Ct. at
2517, even though, in practice, such classifications result in "some inequality,"
McGowan v. Maryland, 366 U.S. 420, 425-26, 81 S.Ct. 1101, 1104-05, 6
L.Ed.2d 393 (1961).
41

Accordingly, we hold that Rule 203(a)(2)(ii) meets the minimum rationality

requirement. There is little question that Pennsylvania could further advance its
reciprocity interest by consistently according reciprocal status on the basis of
whether a state treats Pennsylvania attorneys who are graduates of unaccredited
as well as accredited law schools on similar terms. However, we will not
second guess the manner in which Pennsylvania has chosen to implement Rule
203(a)(2)(ii), where that Rule bears at least some reasonable relation to
Pennsylvania's interest in securing mutual treatment for its attorneys seeking
admission to the bars of other states. Therefore, in light of the deference we
generally accord states as to economic and social matters and Pennsylvania's
"especially great" interest in regulating its bar, Goldfarb v. Virginia State Bar,
421 U.S. 773, 792, 95 S.Ct. 2004, 2015-16, 44 L.Ed.2d 572 (1975), we cannot
say that Rule 203(a)(2)(ii) is unconstitutional.III

42

For the foregoing reasons, we will affirm the district court's order granting
summary judgment for defendants.

The Honorable Dickinson R. Debevoise, United States District Judge for the
District of New Jersey, sitting by designation

Schumacher applied to the Pennsylvania Board of Law Examiners for

permission to sit for the bar examination, but her application was denied
pursuant to Rule 203(a)(2)(ii); Hodge has not applied for permission to sit for
the Pennsylvania bar examination, because he believes it would be futile.
Because Schumacher has standing to maintain this action, and Schumacher and
Hodge present identical challenges to Rule 203(a)(2)(ii), we need not consider
whether Hodge would have standing to bring this action individually. See
Bowsher v. Synar, 478 U.S. 714, 721, 106 S.Ct. 3181, 3185, 92 L.Ed.2d 583
(1986)

Rule 203. Admission of graduates of accredited and unaccredited institutions

(a) Bar Examination. The general requirements for permission to sit for the bar

examination are:
(1) Receipt of an undergraduate degree from an accredited college or
university....
(2)(i) Except as provided in subparagraph 2(ii) of the Rule, completion of the
study of law at and receipt without exception of an earned Bachelor of Laws or
Juris Doctor degree from an accredited law school....; or
(2)(ii) Completion of the study of law at and receipt without exception of an
earned Bachelor of Laws or Juris Doctors degree from an unaccredited law
school located within the boundaries of the United States of America, provided
that the applicant is a member of the bar of a reciprocal state and meets the
following qualifications:
(A) Presentation of a certificate from the highest court or agency of such state
having jurisdiction over admission to the bar and the practice of law stating that
the applicant is in good standing at the bar of such court or such state.
(B) Presentation of proof satisfactory to the Board that the applicant, while
continuously engaged in the practice of law in any state or states outside of this
Commonwealth and subsequent to admission in a reciprocal state, has for a
period of five years:
(i) practiced law in a reciprocal state or states outside this Commonwealth....
Pa.B.A.R. 203 (emphasis added).
3

Stephen Bosch, a former secretary and treasurer of the Pennsylvania Board of

Law Examiners, attested that, although Rule 102(a) calls for a "reciprocal
agreement or arrangement," to obtain reciprocal status a state need only
announce that it "wishes to be reciprocal as we commonly understand
reciprocity."
Bosch explained the significance of the grant of reciprocal status as follows:
In its basic terms it meant that attorneys from the new reciprocal state and
attorneys from Pennsylvania could apply to be admitted in each other [sic]
states without having to take and pass the multistate bar examination. And, of
course, it meant for Pennsylvania that they could seek to be admitted in other
states without have [sic] to sit for a bar examination, and we in turn would then
take in attorneys from the new reciprocal state and give them a license to
practice law in Pennsylvania without having to take a bar examination and, of
course, without having to be a resident of Pennsylvania.

(emphasis added). This view comports with that held by Bosch's predecessor,
Susan L. Anderson, who in a memorandum to the Board of Law Examiners
listed as reciprocal states those states which "require the attorney applicant to
sit for an examination, either the bar examination or an attorney examination."
It is not clear from either Bosch's deposition testimony or Anderson's
memorandum whether they were referring to Pennsylvania attorneys who are
graduates of accredited law schools, unaccredited law schools, or both.
However, as plaintiffs point out, the only consistent difference between how
reciprocal and nonreciprocal states treat Pennsylvania attorneys is that
reciprocal states allow experienced Pennsylvania attorneys who are graduates
of accredited law schools to waive into their bar without taking an examination.
Accordingly, we understand Bosch's and Anderson's references to be to
Pennsylvania attorneys who are graduates of accredited law schools.
Defendants call into question Bosch's deposition testimony, because, as Bosch
himself admitted, he left the Board of Law Examiners on "nonamicable" terms.
However, defendants have not pointed to any evidence that conflicts with
Bosch's testimony. Therefore, it is unrebutted.
4

The complaint also alleges that Rule 203(a)(2)(ii) violates the Privileges and
Immunities Clause of Article IV, U.S. Const. art. IV, 2, and the Due Process
Clause of the Fourteenth Amendment, id. amend. XIV, 2, of the Constitution.
However, plaintiffs' privileges and immunities claim lacks merit, because
plaintiffs are required to meet the same requirements for admission to the
Pennsylvania bar under the Rule as Pennsylvania graduates of unaccredited law
schools. See Lutz v. City of York, 899 F.2d 255, 262 (3d Cir.1990) ("[T]he
purpose of the [Privileges and Immunities] [C]lause was simply 'to insure to a
citizen of State A who ventures into State B the same privileges which the
citizens of State B enjoy.' ") (quoting Toomer v. Witsell, 334 U.S. 385, 395, 68
S.Ct. 1156, 1161-62, 92 L.Ed. 1460 (1948)). And because plaintiffs'
substantive due process claim is amenable to an equal protection analysis, see
Jones v. Helms, 452 U.S. 412, 101 S.Ct. 2434, 69 L.Ed.2d 118 (1981); Westen,
The Empty Idea of Equality, 95 Harv.L.Rev. 537, 558-59 n. 69 (1982),
plaintiffs have not pursued it separately

On appeal, plaintiffs suggest that even if the strict scrutiny standard is not
controlling, we should subject Rule 203(a)(2)(ii) to "heightened scrutiny." They
cite Lutz v. City of York, 899 F.2d at 257, where we applied intermediate
scrutiny to a municipal "cruising" ordinance prohibiting "unnecessary repetitive
driving" in certain areas between the hours of 7:00 p.m. and 3:30 a.m.
Significantly, the challenge in that case was predicated on the right to intra state
travel, which we said emanated from the substantive component of the

Fourteenth Amendment Due Process Clause. Id. at 268. By contrast, plaintiffs'

challenge here is predicated on the right to inter state travel. As we discuss
below, in reviewing challenges predicated on the right to interstate travel, the
Supreme Court has applied either strict scrutiny or rational basis review.
Accordingly, we reject plaintiffs' suggestion that intermediate scrutiny would
be proper here
6

The Rooker- Feldman doctrine presents no jurisdictional obstacle here. Under

that doctrine, "federal district courts lack subject matter jurisdiction to review
final adjudications of a state's highest court or to evaluate constitutional claims
that are 'inextricably intertwined with the state court's [decision] in a judicial
proceeding.' " Blake v. Papadakos, 953 F.2d 68, 71 (3d Cir.1992) (quoting
District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct.
1303, 75 L.Ed.2d 206 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 44
S.Ct. 149, 68 L.Ed. 362 (1923)). Although Schumacher applied for and was
denied permission to sit for the Pennsylvania bar examination, the complaint
before us presents a general constitutional challenge to Rule 203(a)(2)(ii). As
such, we do not believe this action is so "inextricably intertwined" with the
denial of Schumacher's application that it divests us of subject matter
jurisdiction under Rooker-Feldman. Cf. Lowrie v. Goldenhersh, 716 F.2d 401,
404-08 (7th Cir.1983)

We are not reviewing legislation in the traditional sense. Rule 203(a)(2)(ii) was
promulgated by the justices of the Pennsylvania Supreme Court pursuant to the
authority delegated to them by the Pennsylvania General Assembly. See 42
Pa.Cons.Stat.Ann. 1701 & 1722(a)(1). However, the fact that the Rule was
not enacted by a legislative body does not affect our equal protection inquiry.
See Delaware River Basin Comm'n v. Bucks County, 641 F.2d 1087, 1093 n.
11 (3d Cir.1981). See also Tussman & tenBroek, The Equal Protection of the
Laws, 37 Cal.L.Rev. 341, 353 (1949)

The Sosna Court applied a less searching equal protection review. The Court
said that the durational residency requirement was constitutional, because it
could "reasonably be justified" by the circumstances attendant to divorce and
"furthers the State's parallel interests in avoiding officious intermeddling in
matters in which another State has a paramount interest, and in minimizing the
susceptibility of its own divorce decrees to collateral attack." 419 U.S. at 406407, 95 S.Ct. at 560-561. This analysis seems closer to rational basis review
than strict scrutiny

Plaintiffs have not alleged that any other fundamental right is impinged by Rule
203(a)(2)(ii). We note, however, that "the right to practice law is not a
fundamental right for purposes of ... equal protection analysis." Edelstein v.

Wilentz, 812 F.2d 128, 132 (3d Cir.1987). Cf. Supreme Court of New
Hampshire v. Piper, 470 U.S. 274, 281, 105 S.Ct. 1272, 1276-77, 84 L.Ed.2d
205 (1985) (suggesting that the opportunity to practice law is fundamental for
purposes of a Privileges and Immunities Clause analysis). Nor have plaintiffs
alleged that they are members of a suspect class or that the Rule was enacted
purposefully to discourage migration
10

Although we need not decide the issue, it would seem settled that Pennsylvania
could require all candidates for admission to the bar to have graduated from an
accredited law school. See Potter v. New Jersey Supreme Court, 403 F.Supp.
1036, 1037-38 (D.N.J.1975), aff'd without op., 546 F.2d 418 (3d Cir.1976)

11

Defendants argue that Rule 203(a)(2)(ii) also promotes Pennsylvania's interest

in ensuring a competent bar. Although this too is a valid state objective, see
Lowrie v. Goldenhersh, 716 F.2d at 409, we cannot say that Rule 203(a)(2)(ii)
furthers it. The Rule evinces an administrative judgment that graduates of
unaccredited law schools who are members in good standing of the bar of
another state and have practiced law there for five years are competent to
practice law if they pass the Pennsylvania bar examination. We can discern no
reason why, as a general matter, experienced graduates of unaccredited law
schools from reciprocal states would be more competent to practice law than
experienced graduates of unaccredited law schools from nonreciprocal states
Citing Appeal of Murphy, 482 Pa. 43, 393 A.2d 369 (1978), cert. denied and
appeal dismissed sub nom. Murphy v. Pennsylvania State Board of Bar
Examiners, 440 U.S. 901, 99 S.Ct. 1204, 59 L.Ed.2d 449 (1979), defendants
maintain that graduates of unaccredited law schools in certain states--namely,
California--are less qualified than graduates of unaccredited law schools in
other states, because of the manner in which these states regulate (or, rather,
fail to regulate) their unaccredited law schools. However, Rule 203(a)(2)(ii)
does not distinguish between graduates of unaccredited law schools in states
that closely regulate their unaccredited law schools and graduates of
unaccredited law schools in states that do not. Nor is there any evidence that
the Pennsylvania Board of Law Examiners has attempted to do so in
determining which states should be accorded reciprocal status. Therefore, even
if it can be said that graduates of unaccredited law schools in certain states are
less qualified than graduates of unaccredited law schools in other states, the
Rule would not prevent these graduates from becoming members of the
Pennsylvania bar.

12

Webster's Third New International Dictionary 1895 (1964) defines

"reciprocity" as "a mutual exchange of courtesies between two states or
institutions; specif.: a recognition by each state or institution of the validity of

licenses or privileges granted by the other to its citizens or members."

13

These jurisdictions were Alaska, Colorado, Connecticut, District of Columbia,

Illinois, Indiana, Iowa, Kentucky, Michigan, Minnesota, Missouri, Montana,
Nebraska, New York, North Carolina, North Dakota, Ohio, Oklahoma, Rhode
Island, Tennessee, Texas, Vermont, Virginia, West Virginia, Wisconsin, and
Wyoming

14

These states are Illinois, Rules 703 and 705; Kentucky, Rules 2.070 and 2.110;
Michigan, Rules 2(B) and 5(A); Minnesota, Rule II; Montana, Section I(1);
New York, Rule 520.2-.4; North Carolina, Section .0702; North Dakota, Rule 1;
Ohio, Rule 1, Section 1(c); Oklahoma, Rule 2(2); Tennessee, Rule 7, 2.02;
and Wyoming, Rule 5(e)

15

These states are Arizona, Rule 34(c)(1)(D); California, Rule IV; Florida,
Article III(c); Hawaii, Rule 1(c); Maine, Rule 10(c)(3); Maryland, Rule 13(a);
New Mexico, Rule 15-103(B)(2); Oregon, Rules 2.25 and 2.30; Utah, Rule 4;
and Washington, Rule 3(b)(2)

16

It is not clear from the record whether there are in fact Pennsylvania attorneys
who are graduates of unaccredited law schools. As we have noted, Rule 203(a)
(2)(ii) is the exception to Pennsylvania's general policy that graduates of
unaccredited law schools are ineligible to sit for the Pennsylvania bar
examination. Accordingly, it would seem that the only way in which a graduate
of an unaccredited law school may become a member of the Pennsylvania bar
is by becoming a member in good standing of the bar of a reciprocal state,
practicing law there for five years, and passing the Pennsylvania bar
examination and other character and fitness requirements. The record does not
indicate how many graduates of unaccredited law schools have become
members of the Pennsylvania bar through this process. Although we assume
there are some, we note that, if there were no Pennsylvania attorneys who are
graduates of unaccredited law schools, it would of course be reasonable for the
Board of Law Examiners not to condition the grant of reciprocal status on
whether states seeking reciprocity accord mutual treatment to such attorneys

17

We note, however, that although Rule 203(a)(2)(ii) may not directly further
Pennsylvania's reciprocity interest as to its attorneys who are graduates of
unaccredited law schools, it does not undermine it either. The fact is that many
reciprocal states would allow Pennsylvania attorneys who are graduates of
unaccredited law schools to sit for their bar examination. It is possible,
therefore, that the Rule indirectly furthers Pennsylvania's reciprocity interest as
to its attorneys who are graduates of unaccredited law schools by setting an
example for other jurisdictions to follow. In any event, because we believe, for

the reasons we express below, that Rule 203(a)(2)(ii) promotes Pennsylvania's

reciprocity interest as to its attorneys who are graduates of accredited law
schools, we need not decide whether this indirect effect, standing alone, would
satisfy the minimum rationality requirement
18

Medora involved an equal protection challenge to a Pennsylvania regulation

requiring all applicants for general assistance benefits for the blind, aged, or
disabled to apply first for federal Supplemental Security Income (SSI) benefits.
Under the regulation, applicants who were found to be blind, aged, or disabled
yet ineligible for SSI benefits because they did not meet the more stringent
federal "need criteria," were barred from applying for Pennsylvania general
assistance benefits even if they qualified as "needy" under the state program.
Because the regulation bore no rational relation to Pennsylvania's stated
objective of providing "assistance to all of [the State's] needy and distressed,"
we struck it down under rational basis review. 602 F.2d at 1152
In so holding, we rejected the "suggestion" that the regulation would be valid if
Pennsylvania's aim in enacting it was to encourage the federal government to
lower its need criteria. "If such were the case," we said, Pennsylvania "would
essentially be in the position of 'shooting hostages' in an attempt to bring about
what it considered to be a politically desirable result." Id. at 1155 n. 14. And
"the intentional harming of a group to further some other governmental interest
is not a rational means to further that other interest." Id.

19

Moreno involved an equal protection challenge to 3(e) of the Food Stamp Act
of 1964, which "exclude[d] from participation in the food stamp program any
household containing an individual who is unrelated to any other member of
the household." 413 U.S. at 529, 93 S.Ct. at 2823. There was some suggestion
in the legislative history to 3(e) that the requirement that participating
households consist of related individuals was drawn "to prevent so-called
'hippies' and 'hippie communes' from participating in the food stamp program."
Id. at 534, 93 S.Ct. at 2826 (citation omitted). The Court made clear this
objective was not permissible
[I]f the constitutional conception of "equal protection of the laws" means
anything, it must at the very least mean that a bare congressional desire to harm
a politically unpopular group cannot constitute a legitimate governmental
interest. As a result, "[a] purpose to discriminate against hippies cannot, in and
of itself and without reference to some independent considerations in the public
interest, justify the 1971 amendment [to the Act]."
Id. at 534-35, 93 S.Ct. at 2826 (emphasis in original) (citation omitted). By
contrast, here there is no evidence that Pennsylvania enacted Rule 203(a)(2)(ii)

intentionally to harm its attorneys who are graduates of unaccredited law

schools, and it is clear that Pennsylvania's reciprocity interest is legitimate.