We granted rehearing in banc to reconsider the issues decided by a panel of the court in Richardson v. McFadden, 540 F.2d 744 (4 Cir. 1976). There, in an action for declaratory and injunctive relief brought by four black law school graduates who had satisfied all requirements for admission to the South Carolina Bar, except that they received failing scores on the bar examination, the panel decided that the district court properly denied relief except for the individual claims of Spain and Kelly. With respect to them, the panel concluded that the Law Examiners had acted arbitrarily and capriciously, and it directed the district court to order them to be certified as having passed the South Carolina Bar.
I.
Except with respect to the individual claims of Spain and Kelly, we see no merit in plaintiffs’ various contentions for the reasons assigned by the panel.
II.
With regard to the individual claims of Spain and Kelly, we conclude, in disagreement with the panel, that the district court correctly denied relief.
At the outset, we recognize that a jurisdictional question is raised by the assertion of individual claims for relief by Spain and Kelly, i. e., whether, in judging the intellectual fitness of applicants to practice law, the Law Examiners performed a judicial function on behalf of the South Carolina Supreme Court, so that under such precedents as Doe v. Pringle, 550 F.2d 596 (10 Cir. 1976), cert. denied, 431 U.S. 916, 97 S.Ct. 2179, 53 L.Ed.2d 227 (1977), and MacKay v. Nesbett, 412 F.2d 846 (9 Cir. 1969), cert. denied, 396 U.S. 960, 90 S.Ct. 435, 24 L.Ed.2d 425 (1969), we should conclude that the district court lacked subject matter jurisdiction to review the denial of admission to the bar. We are divided on how this issue should be decided, but we find it unnecessary to debate or resolve our differences because a clear majority of us agrees that, even if the district court had subject matter jurisdiction, the proof will not support the conclusion that Spain and Kelly are entitled to individual relief.
Their claim to relief is founded upon due process and equal protection claims. Before turning to the factual basis of their claims, we stress that our function is not just to determine if the bar examiners made a mistake in one or more individual cases; it is to determine if there has been a denial of due process or of equal protection. Not every erroneous determination mounts up to a denial of due process or equal protection. Bishop v. Wood, 426 U.S. 341, 349-50, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976).
Factually, Kelly and Spain showed that other applicants at other times appeared to have received more favorable treatment in grading than that which was afforded' them. See table at 540 F.2d at 750. Specifically, Spain, who was a June, 1971, applicant having an average score of 70.5 and having been failed by three examiners, points to applicant 129, a June, 1970, applicant having an average score of 71.8 and also having been failed by three examiners, who was passed. Kelly, who was a February, 1971, applicant having an average score of 69.6 and having been failed by three examiners, points to applicant 10, also a February, 1971, applicant who was passed with an average score of 69.3 but who was failed by only two examiners.
We do not think this proof establishes the constitutional discrimination requisite to the granting of individual relief. In the case of Spain, the comparison urged on us is of different years. While the mere fact of different years does not make the comparison inapposite, all of the circumstances which make the two instances comparable
Since we conclude that there was no error in the judgment of the district court on any of the grounds asserted, its judgment is
AFFIRMED.