(dissenting):
Since I believe the majority decision rests upon a tenuous resolution of pivotal factual issues in a troublesome area of the law where residual doubts at this stage of the proceedings should be resolved in favor of the plaintiffs, I must, with deference to the comprehensive opinion of the majority, dissent.
a.
My dissent is based in large measure on the nature of the uncontradicted facts which plaintiffs have advanced to establish a case of racial discrimination violative of the equal protection clause of the fourteenth amendment.1
The central focus of this litigation is that black applicants as a class have for a period of years experienced a severely disproportionate number of failing marks on the Georgia bar examination. As the majority opinion candidly concedes, this situation reached a nadir in July, 1972, when each of the 40 black applicants failed; and continued in February and July, 1973, when more than one-half the black applicants were unsuccessful, compared to a failure rate of one-fourth to one-third among white examinees.
*1106b.
The administration of a state policy that is neutral on its fact but which results in unequal application to those entitled to be treated alike is not in itself a denial of equal protection. Rather, it must be demonstrated that there is present an element of purposeful discrimination. Such purposeful discrimination, however, may be evidenced by a systematic, long-continued pattern of unequal results.2
A colorable case of purposeful racial discrimination is set forth where sustained de facto discrimination is shown together with the absence of an investigation, or indeed any effort, by the administrators of the state program in question to ascertain whether the seemingly purposeful discrimination is intentional in fact or is explainable by the circumstances.3 This is so because a presumption of racial inferiority is simply not permissible.4
c.
Bridgeport Guard. Inc. v. Members of Bridgeport Civil Service Comm’n5 was a suit by nearly all the black policemen of the City of Bridgeport who had not passed a particular civil service examination. The Second Circuit held that the defendants had a heavy burden to meet the plaintiffs’ prima facie case of invidious discrimination in view of a practice that resulted in a disparity of substantial magnitude between the hiring of whites and blacks. This Court has stated that “[w]henever the effect of a law or policy [use by school district of a 1,000 cut-off score in the National Teachers Examination as a condition of employment] produces ... a [significant] racial distortion it is subject to strict scrutiny.” 6
Based on a fair reading of the pleadings and the depositions here — with all inferences resolved in favor of the plaintiffs, as required on summary judgment — it would appear that the defendants have not met their burden of disproving purposeful discrimination in the application of the Georgia bar examination.
The plaintiffs have raised the question whether black examinees, although initially anonymous, can be racially identified by graders of the essay portion of the examination because of the use of “Black English.” As the majority properly points out, proof of identification of bar examinees by race may be difficult. However, the difficulty of proof does not eliminate its possibility. Surely such difficulty, without more, should not bar, in the context of this case, affording the plaintiffs the opportunity of offering any such evidence at trial.
In addition, the use of the objective MBE in combination with the essay examination raises a question of the weight accorded each when the examiners come to the point of ascertaining final grades. Also, the selection of cutoff scores, especially when such selection is not subject to review, may be arbitrary. The legality of such decisions may not properly be resolved by mere reference to the good faith judgment of the bar examiners.7
d.
The reliance by the district court and the majority on Schware v. Board of Bar Examiners8 would appear to be mis*1107placed. Schware dealt with the ease of a single, white law school graduate denied the right to take the New Mexico bar examination on the ground that he was “morally unfit.” The Supreme Court decided that the New Mexico bar examiners did not have a rational basis for denying the plaintiff that right. The Court was not called upon to consider the question whether more than a rational basis for denying admission to the bar examination to Schware was required.
e.
The EEOC guidelines for employment testing 9 and the principles enunciated in Griggs v. Duke Power Co.10 — both of which require a validation of a suspect employment test — -are at least persuasive as to the criteria to be applied to the Georgia bar examination under the facts of this case. As plaintiffs point out, the examination here, although not administered by an “employer” for the purpose of hiring, is for all practical purposes an employment test. The applicant who fails it may not, in any respect, be employed to practice law within the state.
Moreover, the philosophy underlying the Civil Rights Act would appear to encompass this type of examination. As the Supreme Court pointed out in Griggs: “Under the Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to ‘freeze’ the status quo of prior discriminatory employment practices.” 11
The majority declares that Allen v. Mobile12 does not permit the Griggs standard to be applied in an area other than that to which the Civil Rights Act is expressly directed. In Allen this Court, without referring to Griggs or the EEOC guidelines, affirmed per curiam the decision of the district court judge, reached after trial, that an alleged discriminatory written test used for promoting police officers was reasonably or rationally job-related. Judge Goldberg dissented on the ground that the district court, and the majority in affirming the district court, had misconstrued the standard Griggs required.13 Neither the per curiam affirmance of the trial court’s holding in itself nor the per curiam as clarified by the dissent warrants a rejection out of hand of any utilization whatever of either the Griggs’ standard or the EEOC guidelines.
f.
Nor do I believe that the recently decided Geduldig v. Aiello,14 relied on by the majority, is in any way controlling. The facts and governing law of Geduldig are substantially distinguishable from those here. The California unemployment compensation disability fund, which is supplementary to the state’s workmen’s compensation program, excludes from its coverage disabilities resulting from normal pregnancy and childbirth. The Supreme Court, in reviewing the exclusion of pregnancy and childbirth coverage, did not apply EEOC directives on pregnancy because no invidious discrimination was perceived. A state social welfare program necessarily must draw a line somewhere, the Supreme Court stated. The exclusion of one disability was not suspect where other comparable disabilities were also excluded.15 The particular disability was sex-related but the decision to exclude it from coverage, said the Supreme Court, was not predicated on sex but on the limited financial resources available in *1108the compensation fund. Such reasoning is not apposite here.
g-
Plaintiffs in this case have established what amounts to an exclusion from job opportunities of a disproportionate number of blacks. These facts call for a stricter standard of review than the standard the majority approves today. Of even more significance, in a case of this importance where one of the key factors in determining illegality will be the evaluation of motive, it seems particularly inappropriate to employ the device of summary judgment.16 Summary judgment may be used only when no genuine issues of fact remain unresolved.
For all the reasons pointed out above, I would reverse the grant of summary judgment and remand the case to the district court for a trial on the merits.
. The fourteenth amendment provides in part: “nor shall any State . . . deny to any person within its jurisdiction the equal protection of the laws.”
. Snowden v. Hughes, 321 U.S. 1, 8-9, 64 S.Ct. 397, 88 L.Ed. 497 (1943).
. Hill v. Texas, 316 U.S. 400, 404, 62 S.Ct. 1159, 86 L.Ed. 1559 (1942); Hawkins v. Town of Shaw, 437 F.2d 1286, 1288 (5 Cir. 1971), modified en banc on other grounds, 461 F.2d 1171 (1972); see Armstead v. Starkville Municipal Separate School Dist., 461 F.2d 276, 279-280 (5 Cir. 1972).
. Brown v. Allen, 344 U.S. 443, 471, 73 S.Ct. 397, 97 L.Ed. 469 (1953).
. 482 F.2d 1333, 1337 (2d Cir. 1973).
. Baker v. Columbus Municipal Separate School District, 462 F.2d 1112, 1114 (5 Cir. 1972).
. Id. at 1114. I do not mean by this statement to impugn the integrity of the examiners. Rather, I suggest only that it is not appropriate to foreclose an attempt by plaintiffs to establish this fact.
. 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957).
. Interpreting and implementing Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C.A. § 2000e.
. 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971).
. Id. at 430, 91 S.Ct. at 853.
. 466 F.2d 122 (5 Cir. 1972), cert. denied, 412 U.S. 909, 93 S.Ct. 2292, 36 L.Ed.2d 975 (1973).
. Id. at 126.
. 417 U.S. 484, 94 S.Ct. 2485, 41 L.Ed.2d 256 (1974).
. Compare James v. Valtierra, 402 U.S. 137, 91 S.Ct. 1331, 28 L.Ed.2d 678 (1971) with Hunter v. Erickson, 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616 (1969).
. Poller v. Columbia Broadcasting System, 368 U.S. 464, 473, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962).