Paul A. STERN, et al., Plaintiffs-Appellees, v. TARRANT COUNTY HOSPITAL DISTRICT, Defendant-Appellant, v. George J. LUIBEL, Defendant-Appellee, 778 F.2d 1052

PATRICK E. HIGGINBOTHAM, Circuit Judge: We reaffirm today the settled constitutional rule that state agencies may pursue legitimate purposes by any means having a conceivable rational relationship to those purposes. A decision that passes constitutional muster under the rational-basis test does not violate the equal protection clause simply because it violates a state anti-discrimination statute.

I Five osteopaths were denied staff privileges by the John Peter Smith Hospital, which is operated by the Tarrant County Hospital District, a Texas state agency, because they had trained in an osteopathic institution and not in an allopathic program. Their attack upon the constitutionality of this exclusion was sustained by the district court after a trial on the merits. The district court, 565 F.Supp. 1440, held that the hospital had unconstitutionally denied the osteopathic physicians equal protection under the law and thereby violated the fourteenth amendment.

This judgment was affirmed by a divided panel of our court. A majority of the judges of this court voted to consider the case en banc, thereby vacating the panel opinion. It is the judgment of the district court that we now review. The factual background, as recited by the panel, is as follows: John Peter Smith Hospital is operated by the Tarrant County Hospital District, a Texas state agency. Before 1974, the hospital bylaws permitted a physician to be a member of its staff only if he was a member of the Tarrant County Medical Society, an association which admitted only allopaths.

In 1974, this was changed to require graduation with a degree of Doctor of Medicine (M.D.) from a school accredited by the Council on Medical Education of the American Medical Association. The Council accredits only allopathic schools and only allopathic schools award the M.D. degree; osteopathic schools award the degree Doctor of Osteopathy (D.O.). The requirements for admission to the hospital staff were again changed in 1979.

The requirement of an M.D. degree was deleted, and instead, staff members were required to be licensed by the state and to have two years of post-doctoral training in a program accredited by the Accreditation Committee [on Graduate Medical Education]. [The Accreditation Committee is affiliated with the AMA and accredits only programs in institutions aligned with allopathic medicine.] The parties stipulated that the sole reason the plaintiffs were denied staff privileges was because they had trained in osteopathic-institution programs [rather than in programs approved by the Accreditation Committee]____ In 1981, the Texas state legislature enacted the Medical Practice Act and declared its intention “to prohibit [state-agency hospitals from differentiating] solely on the basis of the academic medical degree held by” a licensed physician in determining medical staff appointments. [Tex.Rev.Civ.Stat.Ann. art. 4495b, Subchapter A, § 1.02(9) (Vernon Supp.1984).] The Act recognizes that all physicians are examined by the same board, pass the same examination, and meet the same standards, “irrespective of academic medical degree.” [M] In order to be licensed under the Act, a physician must have graduated from an approved medical school, but both schools accredited by the Accreditation Committee and those accredited by the American Osteopathic Association are approved. [The plaintiffs in this case, Dr.

Paul Stern and four other osteopaths, each of whom has had at least two years of post-doctoral training in a program accredited by the American Osteopathic Association, challenge the county hospital’s refusal to grant them staff privileges.] II -1- The district court held that the hospital’s rule denying staff privileges to those who trained in osteopathic-institution programs violated the plaintiffs’ fourteenth amendment right to equal protection of the laws. The court found no justification for the hospital’s requirement, save to exclude osteopaths from the hospital staff.

That exclusion was itself irrational, the court concluded, because there were no significant differences between the qualifications of allopaths and osteopaths. The district court noted the contrary decision of the Supreme Court in Hayman v. City of Galveston, 278 U.S. 414, 47 S.Ct. 363, 71 L.Ed. 714 (1927), but refused to be bound by that case, given the changes in medical education requirements for osteopaths that had ensued in the fifty years since Hayman was decided. The court then characterized as dicta language in our own decision in Berman v.

Florida Medical Center, Inc., 600 F.2d 466 (5th Cir.1979), which upheld a similar rule that denied staff privileges to osteopaths. The district court did not mention our decision in Maceluch v.

Wysong, 680 F.2d 1062 (5th Cir.1982), in which we rejected a challenge by osteopaths to Texas’ prohibition of their use of the initials “M.D.” Being in its view free of binding precedent, the district court concluded that there was no rational basis for the county hospital to treat allopaths and osteopaths differently, particularly in light of the contrary decision by the Texas legislature, as expressed in the Texas Medical Practice Act.

Accordingly, the court struck down the hospital’s rule as a violation of the equal protection clause. -2- The panel opinion adopted a different rationale but reached the same conclusion as the district court. Rather than hold Hayman outdated or distinguish Berman and Maceluch, the panel found “it unnecessary to reach so far.” 755 F.2d at 433.

Arguing that the Texas legislature has, in the Texas Medical Practice Act, expressed the determination that there are no appreciable differences in the allopathic and osteopathic medical degrees and that the Act forbids state hospitals to confer or deny staff privileges “solely on the basis of academic medical degree,” the panel found an equal protection violation, implicitly concluding that there is no rational basis for the county hospital’s rule.

In the panel’s view, the equal protection violation stems from the hospital’s violation of state law, its apparent disregard of the state requirement that osteopaths and allopaths be treated equally: Because the state itself has required its agencies to treat allopathy and osteopathy alike, it is not necessary for us to consider whether the state might, if it chose to do so, find a rational basis for distinguishing between allopathic and osteopathic physicians generally.

The Texas Medical Practice Act mandates that Texas institutions must accord equal treatment to professionals educated in either philosophy. 755 F.2d at 434. Chief Judge Clark’s concurring opinion endorsed this per se analysis and suggested an alternative rationale — that the county hospital’s rule is unconstitutional as a violation of the due process clause. Chief Judge Clark found a property interest for osteopaths in staff privileges at the county hospital because the Texas legislature has commanded that staff privileges at such hospitals shall not be denied on the basis of academic medical degree.

He then found that depriving the plaintiffs of this property interest was necessarily arbitrary and thus a violation of the fourteenth amendment. His reasoning parallels the per se analysis: regardless of the rationality of the state’s choice under Hay man or Berman, Texas has decided that there is no reason to distinguish osteopaths and allopaths, and there can be no rational basis for its agencies to continue to do so. Ill We reject a per se equal protection analysis.

The guarantees of the fourteenth amendment, its requirement that state laws be applied in the same way to those entitled to equal treatment and its promise of protection from arbitrary or irrational state action, are guarantees that turn on federal constitutional standards of equality and rationality rather than on state standards. Converting alleged violations of state law into federal equal protection and due process claims improperly bootstraps state law into the Constitution.

In doing so, this novel approach would expand the scope of the fourteenth amendment, would render its meaning less certain, and would serve no legitimate policy. -1- The per se equal protection construct purports not to overrule or otherwise conflict with our decisions in Berman and Maceluch or the Supreme Court’s decision in Hayman: it would permit the concession, but find it irrelevant, that a rational state legislature or state agency might distinguish between allopaths and osteopaths without violating the fourteenth amendment.

Under the per se approach, a violation of federal equal protection is nonetheless found because the Texas legislature has enjoined its state hospitals to treat allopaths and osteopaths alike. The per se approach assumes that by choosing to forbid discrimination against osteopaths, the state of Texas has necessarily made the contrary decision by its state-agency hospital an irrational one. We disagree. The outer constitutional limit imposed by the fourteenth amendment upon state power is that all the state’s acts must be rational.

In equal protection terms, if the legislative purpose be legitimate, a challenge “may not prevail so long as the question of rational relationship [to legislative purpose] is ‘at least debatable.’ ” Metropolitan Life Ins. Co. v. Ward, — U.S. -, 105 S.Ct. 1676, 1683, 84 L.Ed.2d 751 (1985) (quoting Western & S. Life Ins. Co. v. State Bd. of Equalization, 451 U.S. 648, 674, 101 S.Ct. 2070, 2086, 68 L.Ed.2d 514 (1981), and United States v. Carolene Products Co., 304 U.S. 144, 154, 58 S.Ct. 778, 784, 82 L.Ed. 1234 (1938)). Cf. City of New Orleans v.

Dukes, 427 U.S. 297, 303-04, 96 S.Ct. 2513, 2516-17, 49 L.Ed.2d 511 (1976). When a legislature has a choice of means, each rationally related to its legislative purpose, it may constitutionally choose any of them. Its choice of one does not render the others irrational. It follows that acts violative of the chosen means, although by definition contrary to state law, are not ipso facto contrary to the fourteenth amendment.

The constitutional test for rationality of a legislative classification, whether the classes be distinguished in the text of the law or in its administration, is whether any rational decisionmaker could have so classified. -2- The per se analysis is said to find its sustenance, at least in part, in Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). See 755 F.2d at 433 & n. 8. Yick Wo, however, does not support the conclusion.

In Yick Wo, a San Francisco ordinance required consent from the Board of Supervisors before one could operate a laundry in a building made of materials other than brick or stone. The Board granted permits for laundries in wooden buildings to all non-Chinese applicants save one, and to none of 200 Chinese applicants. 118 U.S. at 359, 6 S.Ct. at 1066. The Court reversed Yick Wo's conviction under the ordinance on the ground that, although the law was facially neutral, it had been applied so as to deny Chinese citizens equal protection of the laws. Id. at 362-63, 6 S.Ct. at 1067-68.

The principle of the case, broadly stated, is that when a facially neutral statute is administered so as to create classes, those classes must pass constitutional muster. The court struck it down because the sole basis for the classification was “hostility to ... race and nationality ... which in the eye of the law is not justified____” 118 U.S. at 374, 6 S.Ct. at 1073.

Its rule differs from the central premise of the per se approach: the panel in this case determined that a facially neutral statute may not constitutionally be administered so as to treat differently classes that the state has determined are similarly situated. The distinction between the two rules is significant. Yick Wo recognizes that facially neutral state laws present the opportunity for discrimination, because they can be administered in a discriminatory fashion. But Yick Wo does not replace the Constitution with state law as the benchmark that determines which classifications are permissible.

That task is necessarily a matter of federal constitutional, not state, law. Similarly, as the Supreme Court has said of 42 U.S.C. § 1983: It is abundantly clear that one reason the legislation was passed was to afford a federal right in federal courts because, by reason of prejudice, passion, neglect, intolerance or otherwise, state laws might not be enforced and the claims of citizens to the enjoyment of rights, privileges, and immunities guaranteed by the Fourteenth Amendment might be denied by the state agencies. Monroe v.

Pape, 365 U.S. 167, 180, 81 S.Ct. 473, 480, 5 L.Ed.2d 492 (1961) (emphasis added), overruled in part on other grounds, Monell v. Department of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). This statement summarizes the results of the Court’s extensive review of the historical background of

section 1983: federal courts are to afford a remedy only for such discriminatory enforcement of state laws as violates the independent guarantees of the fourteenth amendment. A proper application of Yick Wo will not support the finding of an equal protection violation on the facts of this case. To the extent that the Supreme Court has addressed the point, it has confirmed the view that under Yick Wo state law does not define the equality or rationality guaranteed by the fourteenth amendment. See Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1944). The selective prosecution cases, such as Oyler v.

Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962), and its progeny, also make plain that per se analysis is impoverished. In Snowden the Court addressed an equal protection claim by a candidate for the Illinois state legislature. The candidate received sufficient votes- in the primary to be nominated and placed on the ballot, but was unable to get on the ballot because the State Primary Canvassing Board intentionally refused to certify his election. The reasons for the board’s refusal did not surface in the opinion, but the Court assumed that the Board had violated Illinois law by denying certification.

The Court found a number of flaws with the plaintiff’s equal protection argument. The claim suffered from the same problem as that in the case at bar: although there was a showing that state law was violated, there was no showing that the violation also offended the federal equal protection clause. That is, the Court made clear that the rationality of the Board’s decision was unaffected by the state legislature’s prohibition of that decision.

Since the legislature could constitutionally have written a statute that would have denied the plaintiff his nomination, the Board’s decision to do so in violation of state law was necessarily also constitutional. Justice Stone wrote: [T]he action of the Board is ... subject to constitutional infirmity to the same but no greater extent than if the action were taken by the state legislature. Its illegality under the state statute can neither add to nor subtract from its constitutional validity.

Mere violation of a state statute does not infringe the federal Constitution____ And state action, even though illegal under state law, can be no more and no less constitutional under the Fourteenth Amendment than if it were sanctioned by the state legislature. Nashville, C. & St. L. Ry. v. Browning, 310 U.S. 362, 369-70 [60 S.Ct. 968, 972, 84 L.Ed. 1254 (1940)]. See also Coulter v. Louisville & Nashville R. Co., [196 U.S. 599], 608-9 [25 S.Ct. 342, 344, 49 L.Ed. 615 (1905)]; Hayman v. Galveston, 273 U.S. 414, 416 [47 S.Ct. 363, 364, 71 L.Ed. 714]; Iowa-Des Moines Bank v.

Bennett, 284 U.S. 239, 244 [52 S.Ct. 133, 135, 76 L.Ed. 265], A state statute which provided that one nominee rather than two should be certified in a particular election district would not be unconstitutional on its face and would be open to attack only if it were shown, as it is not here, that the exclusion of one and the election of another were invidious and purposely discriminatory. Compare Missouri v. Lewis, [11 Otto 22, 30, 32, 101 U.S. 22, 30, 32, 25 L.Ed. 989]; Yick Wo v. Hopkins, supra. 321 U.S. at 11, 64 S.Ct. at 402.

That Yick Wo’s guarantee of equality in administration of the laws turns on federal rather than state standards is also made plain in the Court’s rules on selective prosecution, the quintessential Yick Wo problem. In Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962), for example, the Court denied the equal protection claim of a West Virginia prisoner who was sentenced to life imprisonment under the state’s three-time felony offender statute.

The prisoner complained that the state had selectively enforced the statute against himself and other prisoners, but the Court explained that because federal standards of equality were not shown to have been violated in the discriminatory enforcement, no equal protection claim was stated: Even though the statistics in this ease might imply a policy of selective enforcement, it was not stated that the selection was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.

Therefore grounds supporting a finding of a denial of equal protection were not alleged____ Cf. Snowden v. Hughes, 321 U.S. 1 [64 S.Ct. 397, 88 L.Ed. 497] (1944); Yick Wo v. Hopkins, 118 U.S. 356 [6 S.Ct. 1064, 30 L.Ed. 220] (1886) (by implication). Id. at 456, 82 S.Ct. at 505. The Court reaffirmed the same rule just this past term when it rejected the equal protection claim of a young man who refused to register for the draft and who was singled out for prosecution after he wrote letters to government officials stating that he would not register. See Wayte v.

United States, — U.S. -, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985). Our own court recently followed the principle as well, rejecting the selective prosecution claims of striking air traffic controllers who failed to demonstrate that the government’s decision to prosecute them was discriminatory enforcement that was “invidious or in bad faith in that it restfed] on such impermissible considerations as race, religion, or the desire to prevent [the] exercise of constitutional rights.” United States v. Hoover, 727 F.2d 387, 389 (5th Cir.1984) (quoting United States v.

Greene, 697 F.2d 1229, 1234 (5th Cir.), cert. denied, 463 U.S. 1210, 103 S.Ct. 3542, 77 L.Ed.2d 1391 (1983)). Both Snowden and the selective prosecution cases make plain that Yick Wo did not make state law the determinant of what classifications may be drawn under the fourteenth amendment. Simply and correctly recognizing that unconstitutional classes may be created in the administration of ostensibly neutral laws, Yick Wo forbids such classifications. The panel also cited several cases in which federal procedural requirements were tied to state-created substantive rights.

Compare 755 F.2d at 433-34 & nn. 12-13, and id. at 434-35 (Clark, C.J., concurring) with id. at 438 & n. 8 (Goldberg, J., dissenting). It is of course quite true that, in our federal system, most property rights are created by state law. It has inexorably followed that the fourteenth amendment’s due process clause operates to protect state-created property rights. The constitutional procedural standards of the due process clause are, however, wholly and exclusively federal in nature: a violation of state law is neither a necessary nor a sufficient condition for a finding of a due process violation.

Indeed, as Judge Goldberg pointed out in dissent, id. at 438 n. 8, none of the Supreme Court cases cited by the panel majority involved any violation of state law at all.

It does not and cannot follow from these due process decisions that every apparent transgression of state law by a state agency triggers the operation of the federal equal protection clause. -3- Whatever seeming logical force there might be to the argument that it is necessarily “irrational” and “arbitrary,” in the federal constitutional sense, for a state agency intentionally to violate state law, that force quickly dissipates when the implications of the argument are considered.

If state law defines who is entitled to what treatment or which means to a chosen goal are rational, then all intentional violations of state law by state agencies would violate the fourteenth amendment: if the action were taken against a class it would offend equal protection under the panel's per se construct, and if taken against an individual it would offend due process as defined by Chief Judge Clark. One example of how the per se approach would transmogrify state law questions into constitutional claims springs readily to mind.

In those jurisdictions that have adopted a state “equal rights amendment,” ratification of the proposed federal ERA would be virtually superfluous because violations of the state ERA would simultaneously violate the fourteenth amendment. Furthermore, federal courts would suddenly assume responsibility for determining the meaning of the state ERA’s and would encounter many of the Erie difficulties that have bedeviled our exercise of diversity jurisdiction.

Whenever a federal court determined that a person acting under col- or of state law had run afoul of one of these typically broad and vague state laws, it would conclude that “a state agency’s discriminatory action when state law commands equality is a patent denial of equal protection to those denied equality.” 755 F.2d at 432. The principle that federal constitutional protection is independent of state law is nothing new. In habeas review, we limit the issuance of the writ to those cases where there have been federal constitutional violations; we do not review all possible errors of state law. In Pulley v.

Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984), for example, a prisoner under sentence of death was denied federal review of his claim that he had been denied the “comparative proportionality review” due him under state law: “A federal court may not issue the [habeas] writ on the basis of a perceived error of state law.” Id. 104 S.Ct. at 874-75. It would not be easy to explain why the Constitution requires federal supervision of the enforcement of state law for the benefit of those who wish to practice osteopathy but not for the protection of those facing execution at the hands of the state.

Our system of shared government power requires all the deference traditionally given in rational-basis review. Our lodestar is not what the state legislature has done or purported to do, but what any rational decisionmaker might have chosen to do. We may not be “lost in a maze if we put that compass by,” but we certainly will be trespassing on state domains. State law is in no way demeaned or trivialized by its present status as state, rather than federal, law. The federal judiciary, for its part, has enough federal law to enforce without annexing new bodies of state legislation.

We must, and will, leave violations of state law to be corrected by the appropriate state mechanisms. IV Having rejected the panel’s per se analysis, we undertake a review of the district court’s judgment. Because the district court found differences between allopaths and osteopaths that are in our view sufficient to permit Texas or its agencies to differentiate in the granting of hospital staff privileges, that court’s conclusion of unconstitutionality cannot stand. In the trial of constitutional issues, the differing roles of historical and legislative facts can present conceptual difficulties.

We need not in this case attempt to distinguish precisely between historical and legislative facts in the district court’s findings: however the findings be characterized, the state action in question was constitutional. The general distinction between legislative and adjudicative facts is nevertheless important because it helps to show why the district court ought to have asked only whether there was any conceivable basis for the Tarrant County Hospital District’s implicit legislative judgment regarding the import of the differences between the two medical training programs.

A factual conclusion by the district court, based on conflicting evidence about an historical fact, would be binding in this court. But such a factual conclusion could not be used to displace a legislative judgment and therefore could not be a sufficient basis for declaring the Hospital District’s action unconstitutional.

After a bench trial, the district court found that the Hospital District’s different treatment of allopaths and osteopaths was “not a requirement which has as a foundation a reasonable basis such as professional and ethical qualifications for the common good of the public or the hospital itself”, 565 F.Supp. at 1454, and concluded that the facts today are different from those existing at the time of Hayman v. City of Galveston, 273 U.S. 414, 47 S.Ct. 363, 71 L.Ed. 714 (1927), see 565 F.Supp. at 1443.

It is conceded that the facts allow only the conclusion that allopathic and osteopathic training programs have similar course requirements and content, and that graduates face identical testing and licensing requirements. We find no fault with the district court opinion in this respect and we approve that court’s decision to use the rational-relationship standard of review. We also agree, that the Texas Medical Practice Act is relevant to, though not dispositive of, the question of whether there was a rational basis for differentiation.

The difficulty is that the district court also concluded that “[t]he only remaining difference between D.O.’s and M.D.’s has been described simply as one of philosophy.” 565 F.Supp. at 1443. Our question is whether the legislature could have sanctioned the classification drawn by the Tar-rant County Hospital District without denying osteopaths equal protection. If the distinct medical approaches adopted by allopaths and osteopaths provide a sufficient basis for such a classification, our inquiry ends. Cf. Home Depot, Inc. v. Guste, 773 F.2d 616 (5th Cir.1985). In Maceluch v.

Wysong, 680 F.2d 1062 (5th Cir.1982), we concluded that the differences between the allopathic and osteopathic schools in their approach to medical treatment justified the state’s requirement that osteopaths identify themselves to medical consumers with the “D.O.” label. We adopted the opinion of the district court, which explained: Despite the fact that medicine is practiced within an objective scientific framework, the decisional processes of a physician reflect not only the aggregate of a substantive knowledge of clinical techñiques, but also his judgments as to the need for, and nature of, treatment.

That skill, born of experience, perception of human nature, and intuitions as to what is best for a patient, jumps over the many voids in “scientific” knowledge and separates the scientist from the doctor. It follows that two schools of medicine that advocate differing approaches, even if they differ only in their advocacy of differing philosophical approaches to the same scientific realities, present a difference that a legislature may note without unlawfully discriminating against one, or preferring one over the other.

In sum, the state has demonstrated a rational relationship between its licensing categories and debatable, if not real, differences between doctors possessing M.D. and D.O. degrees. That is all that the Constitution requires. Id. at 1066-68 (citation omitted). The reasons underlying our decision in Maceluch also apply to the case at bar. We held that it was rational for the state to take steps to ensure that medical consumers could distinguish easily between allopaths and osteopaths.

It is no less rational for a state, in the exercise of its police power, to make the same choice that Maceluch permitted it to give to its citizens. Nor does this choice become less rational when it is made by a state agency, such as the Tarrant County Hospital District. “[Tjhose challenging the legislative judgment must convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker.” Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464, 101 S.Ct. 715, 723, 66 L.Ed.2d 659 (1981) (quoting Vance v.

Bradley, 440 U.S. 93, 111, 99 S.Ct. 939, 949, 59 L.Ed.2d 171 (1979)). The legislative facts involved in this case, as in Maceluch, are conceivably, if not indubitably, true. The judgment of the district court is accordingly REVERSED. . 755 F.2d 430, 432. This factual recitation by the panel is unchallenged, and we adopt it here. .

In the case at bar, which involved a fairly precise state prohibition against differentiating in medical staff appointments "solely on the basis of the academic medical degree held by” a licensed physician, the district court had to engage in a complex and extended analysis in order to determine whether the state law had been violated. See 565 F.Supp. at 1445-52. In cases where state law is less clear, federal courts would face correspondingly greater difficulties and would to that extent be more prone to error.