(dissenting):
I would reverse the judgment of the district court and dismiss the complaint.
Plaintiff brought this action in the United States District Court for the Northern District of New York, contending that defendants’ refusal to issue a license to practice chiropractic in the State of New York deprived her of property without due process in violation of the Fourteenth Amendment. She requested an injunction directing that she be permitted to practice chiropractic in New York. Defendant answered and moved for summary judgment dismissing the complaint.
The district court awarded judgment for the plaintiff, declaring that defendant’s failure to provide a hearing on plaintiff’s application for a waiver of the examination requirement deprived her of her livelihood without due process. The Court did not grant any affirmative relief, but issued a declaratory judgment stating that the plaintiff’s due process rights had been violated and that she was entitled to an administrative hearing. Defendants appealed.
New York’s chiropractic licensing statute was enacted as Chapter 781 of the Laws of 1963, to take effect July 1, 1963. Plaintiff has been practicing chiropractic since 1958. The statute provides general licensing requirements for new applicants, including, inter alia, examination requirements. The statute also includes a generous “grandfather” provision, allowing an alternative method of qualifying for persons already practicing chiropractic on the effective date of the statute. Plaintiff has taken the examinations under the less rigorous provisions of the grandfather clause on six occasions, the last time in 1971, but has never achieved a total accumulated score sufficient to pass even under this lesser standard. Plaintiff has also taken and failed the regular licensing examination. She nevertheless remains eligible to take and pass the regular licensing examination.
After failing to pass the required examination on her seventh attempt, plaintiff applied for a waiver of the examination requirement under a general provision of the Education Law, applicable to all professions, allowing the Board of Regents, in its discretion, to waive specific requirements for. licensing “provided the Board of Regents shall be satisfied that the requirements . . . have been substantially met.” Education Law Section 6506, subdivision 5. This statute makes no provision for a hearing on an application for a waiver. The Board of Regents, after considering plaintiff’s request for a waiver, denied her application.
*260Plaintiff then brought a proceeding in the state courts pursuant to Article 78 of the New York Civil Practice Law and Rules, seeking to compel the Board of Regents to waive the examination requirement in her case and to issue her a license. Supreme Court, Albany County, entered judgment for plaintiff, without opinion. The Appellate Division, Third Department, reversed in a unanimous opinion, on the ground that the authority to give a waiver is “permissive, not mandatory”:
“A review of the applicant’s record on the chiropractic examinations and the fact that she failed seven examinations in as many attempts provides ample justification for the Regents’ failure to exercise the discretion granted to them and removes any doubt that their action was arbitrary or capricious . . . [h]ad the board waived the requirements on the record here, it would have abdicated its delegated responsibility, made our licensing provisions meaningless, and indirectly discriminated against the countless numbers who have taken this State’s licensing examinations and barely failed.” 43 A.D.2d 643, 349 N.Y.S.2d 806 (1973).
The Court of Appeals affirmed the Appellate Division in a second unanimous opinion, on the ground that “[t]he refusal of the Board of Regents to waive the examination required by statute was not, as a matter of law, an abuse of discretion.” 38 N.Y.2d 724, 381 N.Y.S.2d 37, 343 N.E.2d 755 (1975). Plaintiff then brought suit in federal court and obtained the declaratory judgment on appeal here.
The Fourteenth Amendment requires that no state “deprive any person of life, liberty, or property, without due process of law.” Courts have construed this clause to mean that when the state takes a person’s property, it must adhere to recognized principles of substantive and procedural law. Thus when any significant property interest, such as a person’s entitlement to earn a living as a chiropractor, is taken, that person is entitled to a hearing and a right to be heard. The type of hearing that is required in a particular situation depends on all the circumstances. I would hold with the New York Court of Appeals that in the context of professional licensing, a regularly and fairly administered examination procedure satisfies plaintiff’s due process right to be heard. Here the plaintiff does not challenge the fairness of the examination itself, the way in which it was given, or the way in which it was graded.
I do not believe that due process requires, in addition to a fair examination, a special hearing to determine whether the examination should be waived for applicants who have failed it. Where a law or regulation, such as the regulation setting up minimum passing grades here, has been validly promulgated for a legitimate public purpose and the complainant admittedly falls within the ambit of that regulation, enforcement without exceptions does not violate due process.
Even after taking account of the importance of plaintiff’s property interest, the public interest in an objective and impartial method for certifying chiropractors fully justifies exclusive reliance on an examination procedure such as New York provides. Although we may sympathize with the plight of those who fail professional examinations, those examinations are required for a reasonable and valid public purpose: to determine who is qualified to practice a particular profession. In this case, the qualifying examination which the appellant has repeatedly failed is the principal means for protecting a public which cannot by itself adequately verify the credentials of those chiropractors they turn to in time of need.
That the State of New York has gone beyond the requirements of due process, as fulfilled by a fair examination, and has provided for the possibility of a waiver in the discretion of the Board of Regents, should not change the result. The addition of a waiver procedure which is not required by due process does not require a further hearing where a further hearing would not otherwise be required. Plaintiff, moreover, has not shown any unfairness either in the processing of the examination or in the *261decision to deny her a waiver. Plaintiff does not suggest any reason why the Board would or should grant a waiver. In short, she has not been deprived of any right by reason of not being allowed to appear before the Board.
Plaintiff might have made out a case on her right to receive a waiver, or at least on her right to a hearing before one was denied, had she shown that the state had granted waivers to others who had failed the examination and that there were no discernible standards for distinguishing her from those who had received the waivers. But plaintiff has made no such showing. In fact, she has not shown us one case where anyone who has failed the examination has been given a waiver relieving them of the consequences. Indeed, although the waiver provision theoretically includes waivers for failure to pass the examination, it is more clearly aimed at waiver of requirements less directly related to competency, such as residence or citizenship. Accordingly, that the letter of the law was applied to appellee as the legislature contemplated does not make out arbitrary and capricious action amounting to a violation of due process.
Finally, in the absence of a violation of due process (such as does not exist here), I do not think that the federal courts should interfere with state licensing procedures— especially to require the state to hold a hearing in a case where no good reason is shown for holding one.
If we were to affirm the district court’s notion that the plaintiff is entitled to a hearing, we would be suggesting resort to the federal courts whenever a state agency fails to license someone who fails to qualify. We would not only interfere with what is exclusively a state function, we would also encourage frivolous and needless litigation.
If New York opts for strict observance of its licensing laws it is not the proper business of the federal courts to decide how, if at all, strict observance should be tempered by a waiver procedure, so long as the administration of the state system does not offend equal protection or due process. For one, two or even three federal judges to second-guess twelve New York appellate judges on a question of this nature is offensive to accepted principles of federal-state comity as well as to common sense and judicial modesty.