(concurring in part and dissenting in part):
I concur in parts I, II, III, IVB, and VI of the majority opinion. Indeed, in the present context the claim that the Constitution requires validated bar examinations is almost meaningless: the thrust of Griggs v. Duke Power Company, 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), that educational criteria irrelevant to the immediate demands of a job may not be employed to screen for it — where their effect is racially discriminatory — has no application when the criteria applied are relevant. Here they plainly are.
I also agree with the majority’s conclusion in part IVA that summary judgment on the claim of discriminatory grading was premature since there were outstanding motions seeking discovery of relevant material. However, my agreement is limited to the facts of this case, one in which the judge failed to set a specific deadline for discovery and manifested an intention to rule on further discovery as the need arose before deciding the summary judgment motion. And I disagree with the majority’s conclusion that this discovery must be granted. A motion to compel discovery is addressed to the discretion of the district court,1 and we exceed our proper appellate function when we substitute our discretion for that of the district judge. It is because, and only because, his discretion was never exercised and the case was concluded by summary judgment at a time when plaintiffs had good right to believe that a favorable ruling might be made and might furnish them useful ammunition to defeat the motion that I agree the judgment was premature. On remand, the district judge should be allowed to exercise his discretion in ruling on the discovery motion. For example, he is empowered to deny the motion on considerations of annoyance, embarrassment, oppression, or undue burden or expense, notwithstanding the relevance of the material sought. See Fed.R.Civ.P. 37(a)(2), 26(c).
I dissent on the merits from Part V of the majority opinion, which I understand to resurrect appellants’ facial attack on the photograph requirement as well as their claim of actual discrimination in the grading of the examinations. The facial attack was based on due process, not equal protection. The majority’s observations on equal protection are, therefore, gratuitous. Moreover, the jury-selection and voter-registration cases relied on by the majority do not bear on this issue at all; they involve frank and uncalled-for racial classifications, classifications which could have had no proper relevance to the matter there in hand. Photographs may well have proper uses, of which identification is one. Nor am I able to follow the majority’s distinction between state interests in identifying attorneys and would-be attorneys; whether the photograph is actually used or not, it seems a powerful and reasonable deterrent to imposters, who are at least as likely to be found at bar-examination time as at any other. Finally, the majority opinion, supra slip opinion at p. 949 overstates the holding of these cases. They do not lay it down that the combination of a pattern of disproportionate statistics and an opportunity to discriminate denies equal protection as a matter of law; they hold merely that this combination makes a prima facie case, shifting the burden of proof to the state on the fact issue of actual discrimination.
The excessive sweep of the majority opinion is emphasized by the observation that *952the photograph is not essential to the bar examiner’s ability to discriminate. Many blanks on the application, from the name and address to the name of the applicant’s law school, could be abused by a bar examiner bent on discrimination. And after all, one who actually takes the bar examination must at this point, if no sooner, present himself to the sight of the ill-disposed, if such there be. Perhaps the photograph can be more readily abused, but the equal protection clause does not invalidate all procedures which can be abused and the constitution does not either require or forbid every conceivable inquiry on examination applications.
There is a limit to the uses of mechanical solutions. Projected too far, or spun too fine, their application is felt as officious and draws in question even their proper function by making them appear silly in gross. In countenancing this contention, I am afraid we do so here.
. Swanner v. United States, 406 F.2d 716, 719 (5th Cir. 1969); 8 C. Wright and A. Miller, Federal Practice and Procedure: Civil § 2215 (1970 ed.).