Regents of the University of California v. Bakke Was Wrongly Decided

By Vladimir Viaud

17 April 2012 14:15 | Articles, Civil Rights, Constitutional

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Supreme Court Building; Image Copyright a2gemma (Flickr), 2012

Even Justice Scalia

and the Originalists

Should Agree:

Bakke was WRONGLY Decided!

By Vladimir Viaud ^Bio

I. Introduction

Q: In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we’ve gone off in error by applying the 14th Amendment to both? ¹

Justice Scalia’s Answer: Yes, yes…. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that.²

Justice Scalia is correct: The original intent of the 14^th Amendment was to protect black Americans’ personal rights from being taken away by a state³ because of discrimination.⁴ But what type of discrimination? Certainly not from the type of discrimination where one school in a state admits some black students but not others based on academic credentials and maybe race-based affirmative action; the 39^th Congress never thought that that’s what it meant and nobody ever voted for that.⁵

The Fourteenth Amendment was created to guard against situations such as a State⁶ denying a person the right to be an American citizen in all states regardless of race;⁷ or a State⁸ denying a person the opportunity to gain a legal education while granting it to others;⁹ or a State¹⁰ denying a person the opportunity to be furnished within its borders facilities for legal education substantially equal to those which the State there afforded for other persons.¹¹ The 14^th Amendment was not created to give a state school an advisory opinion on the constitutionality of an admissions program¹² nor was it created to guard against a student’s personal right to admission into a specific school;¹³ the 39^th Congress never thought that that’s what it meant and nobody ever voted for that.¹⁴

The purpose of this article is to demonstrate that Regents of the University of California v. Bakke¹⁵ was wrongly decided because a ruling on the merits should never have taken place;¹⁶ neither party had standing to sue and the Supreme Court did not have subject-matter jurisdiction under the Fourteenth Amendment. This article will begin by providing the background on Regents of the University of California v. Bakke followed by a historical overview of the original intent and interpretation of the Fourteenth Amendment. After the historical overview of the Fourteenth Amendment, this article will discuss Johnson v. Committee on Examinations, 407 U.S. 915 (1972), which preceded Bakke, to provide more background on the standing issues being raised in this article. Following the review of Johnson, this article will demonstrate that the Supreme Court should have denied the Regents of the University of California’s writ for certiorari in Bakke because the Regents of the University of California were requesting an advisory opinion of the constitutionality of Davis Medical School’s admissions program under the Equal Protection Clause of the Fourteenth Amendment;¹⁷ the Supreme Court is not permitted to give advisory opinions.¹⁸

For the sake of argument, this article will proceed to demonstrate the standing issues Allan Bakke would have had in Bakke even if the Supreme Court of California had ruled against him: (1) Allan Bakke did not suffer a legal injury;¹⁹ (2) there was no state law or state action in Bakke;²⁰ (3) unlike Lloyd Gaines,²¹ Ada Lois Sipuel,²² G.W. McLaurin,²³ and Heman Marion Sweatt,²⁴ there was no evidence that Allan Bakke was denied a personal right²⁵ for Fourteenth Amendment purposes;²⁶ and (4) decisions by faculties and administrations of one state university does not demonstrate state action.²⁷ This article will proceed to demonstrate that a case such as the Regents of the University of California v. Bakke is not within the zone of interests²⁸ of the Equal Protection Clause of the Fourteenth Amendment because the Equal Protection Clause presupposes that a state law or policy is at issue in the case.²⁹

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References ( returns to text)

Vladimir Viaud is a 3rd year law student at Washburn University School of Law.
Scalia: Constitution does not protect women against discrimination, http://voices.washingtonpost.com/44/2011/01/scalia-constitution-does-not-p.html?referrer=emaillinkpg.
Scalia: Constitution does not protect women against discrimination, http://voices.washingtonpost.com/44/2011/01/scalia-constitution-does-not-p.html?referrer=emaillinkpg.
See e.g., Dred Scott v. Sanford, 60 U.S. 393 (1857) (A case about whether a black person is an American citizen in all states or if a black person’s right to be an American citizen can be taken away by state law, in this case Missouri law.).
Civil Rights Cases, 109 U.S. 3, 11, 13 (1883) (“Of course, legislation may and should be provided in advance to meet the exigency when it arises, but it should be adapted to the mischief and wrong which the [Fourteenth] Amendment was intended to provide against; and that is, state laws or state action of some kind adverse to the rights of the citizen secured by the [Fourteenth] amendment.”); or See Scalia: Constitution does not protect women against discrimination, http://voices.washingtonpost.com/44/2011/01/scalia-constitution-does-not-p.html?referrer=emaillinkpg [1/4/2011]; See also Scalia and the 14^th Amendment, http://scienceblogs.com/dispatches/2011/01/scalia_and_the_14th_amendment.php.
Scalia: Constitution does not protect women against discrimination, http://voices.washingtonpost.com/44/2011/01/scalia-constitution-does-not-p.html?referrer=emaillinkpg.
Dred Scott v. Sanford, 60 U.S. 393, 400 (1857) (“The defendant pleaded in abatement to the jurisdiction of the court, that the plaintiff was not a citizen of the State of Missouri, as alleged in his declaration, [because] being a negro of African descent, whose ancestors were of pure African blood, and who were brought into this country and sold as slaves.”).
But see Dred Scott v. Sanford, 60 U.S. 393, 459 (1857) ( “Our opinion is, that the question is one which belongs to each State to decide for itself, either by its Legislature or courts of justice; and hence, in respect to the case before us, to the State of Missouri — a question exclusively of Missouri law, and which, when determined by that State, it is the duty of the Federal courts to follow it. In other words, except in cases where the power is restrained by the Constitution of the United States, the law of the State is supreme over the subject of slavery within its jurisdiction.”).
Sipuel v. Board of Regents of the University of Oklahoma, 322 U.S. 631 (1948) (Oklahoma statutes, 70 Okla. Stat. (1941)§§ 455, 456, 457, which made it a misdemeanor to maintain or operate, teach or attend a school at which both whites and Negroes are enrolled or taught).
Sipuel v. Board of Regents of the University of Oklahoma, 322 U.S. 631, 632 (1948); or Sweatt v. Painter et al, 339 U.S. 629, 635(1950).
Sweatt v. Painter et al, 339 U.S. 629, 631 n.1 (1950) (“It appears that the University has been restricted to white students, in accordance with the State law. See Tex. Const., Art. VII, §§ 7, 14; Tex. Rev. Civ. Stat. (Vernon, 1925), Arts. 2643b (Supp. 1949), 2719, 2900″).
Sweatt v. Painter et al, 339 U.S. 629, 635 (1950).
Flast v. Cohen, 392 U.S. 83, 95 (1968) (“Thus, no justiciable controversy is presented when the parties seek adjudication of only a political question, when the parties are asking for an advisory opinion, when the question sought to be adjudicated has been mooted by subsequent developments, and when there is no standing to maintain the action.”); or United States v. Fruehauf, 365 U.S. 146, 157 (1961) (“We do not reach that question on this appeal. For we cannot but regard it—abstracted as it has become, in the course of these proceedings, from the immediate considerations which should determine the disposition of appellees’ motions to dismiss an indictment incontestably valid on its face—as other than a request for an advisory opinion. Such opinions, such advance expressions of legal judgment upon issues which remain unfocused because they are not pressed before the Court with that clear concreteness provided when a question emerges precisely framed and necessary for decision from a clash of adversary argument exploring every aspect of a multi-faced situation embracing conflicting and demanding interests, we have consistently refused to give.”).
See Marbury v. Madison, 5 US 137, 166 (1803) (“But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured, has a right to resort to the laws of his country for a remedy.”); or Antonin Scalia, The Doctrine of Standing As an Essential Element of the Separation of Powers, 17 Suffolk U. L. Rev. 881, 885 (“But legal injury is by definition no more than the violation of a legal right; and legal rights can be created by the legislature“); or John G. Roberts, Jr., Article III Limits On Statutory Standing, 42, Duke L.J. 1220, 1223-1224 (“As the Court has explained, any effort to flesh out the concept of injury and other standing principles must be based on ‘reference to the Art. III notion that federal courts may exercise power only in the last resort, and as a necessity, and only when adjudication is consistent with a system of separated powers and [the dispute is one] traditionally thought to be capable of resolution through the judicial process.’”).
Scalia: Constitution does not protect women against discrimination, http://voices.washingtonpost.com/44/2011/01/scalia-constitution-does-not-p.html?referrer=emaillinkpg.
Regents of the University of California v. Bakke, 438 U.S. 265 (1978).
See id. at 408-409 (Justice Stevens: “It is always important at the outset to focus precisely on the controversy before the Court. It is particularly important to do so in this case because correct identification of the issues will determine whether it is necessary or appropriate to express any opinion about the legal status of any admissions program other than petitioner’s. This is not a class action. The controversy is between two specific litigants. Allan Bakke challenged petitioner’s special admissions program, claiming that it denied him a place in medical school because of his race in violation of the Federal and California Constitutions and of Title VI of the Civil Rights Act of 1964, 42 U. S. C. § 2000d et seq. The California Supreme Court upheld his challenge and ordered him admitted. If the state court was correct in its view that the University’s special program was illegal, and that Bakke was therefore unlawfully excluded from the Medical School because of his race, we should affirm its judgment, regardless of our views about the legality of admissions programs that are not now before the Court.“); and id. at 410-411 (Justice Stevens: “The California Supreme Court, in a holding that is not challenged, ruled that the trial court incorrectly placed the burden on Bakke of showing that he would have been admitted in the absence of discrimination. The University then conceded ‘that it [could] not meet the burden of proving that the special admissions program did not result in Mr. Bakke’s failure to be admitted.’ Accordingly, the California Supreme Court directed the trial court to enter judgment ordering Bakke’s admission. Since that order superseded paragraph 2 of the trial court’s judgment, there is no outstanding injunction forbidding any consideration of racial criteria in processing applications. It is therefore perfectly clear that the question whether race can ever be used as a factor in an admissions decision is not an issue in this case, and that discussion of that issue is inappropriate.“).
See id. at 408-409 (Justice Stevens: “It is always important at the outset to focus precisely on the controversy before the Court. It is particularly important to do so in this case because correct identification of the issues will determine whether it is necessary or appropriate to express any opinion about the legal status of any admissions program other than petitioner’s. This is not a class action. The controversy is between two specific litigants. Allan Bakke challenged petitioner’s special admissions program, claiming that it denied him a place in medical school because of his race in violation of the Federal and California Constitutions and of Title VI of the Civil Rights Act of 1964, 42 U. S. C. § 2000d et seq. The California Supreme Court upheld his challenge and ordered him admitted. If the state court was correct in its view that the University’s special program was illegal, and that Bakke was therefore unlawfully excluded from the Medical School because of his race, we should affirm its judgment, regardless of our views about the legality of admissions programs that are not now before the Court.“); and id. at 410-411 (Justice Stevens: “The California Supreme Court, in a holding that is not challenged, ruled that the trial court incorrectly placed the burden on Bakke of showing that he would have been admitted in the absence of discrimination. The University then conceded ‘that it [could] not meet the burden of proving that the special admissions program did not result in Mr. Bakke’s failure to be admitted.’ Accordingly, the California Supreme Court directed the trial court to enter judgment ordering Bakke’s admission. Since that order superseded paragraph 2 of the trial court’s judgment, there is no outstanding injunction forbidding any consideration of racial criteria in processing applications. It is therefore perfectly clear that the question whether race can ever be used as a factor in an admissions decision is not an issue in this case, and that discussion of that issue is inappropriate.“).
Flast v. Cohen, 392 U.S. 83, 95 (1968) (“Thus, no justiciable controversy is presented when the parties seek adjudication of only a political question, when the parties are asking for an advisory opinion, when the question sought to be adjudicated has been mooted by subsequent developments, and when there is no standing to maintain the action.”); or United States v. Fruehauf, 365 U.S. 146, 157 (1961) (“We do not reach that question on this appeal. For we cannot but regard it—abstracted as it has become, in the course of these proceedings, from the immediate considerations which should determine the disposition of appellees’ motions to dismiss an indictment incontestably valid on its face—as other than a request for an advisory opinion. Such opinions, such advance expressions of legal judgment upon issues which remain unfocused because they are not pressed before the Court with that clear concreteness provided when a question emerges precisely framed and necessary for decision from a clash of adversary argument exploring every aspect of a multi-faced situation embracing conflicting and demanding interests, we have consistently refused to give.”).
See Antonin Scalia, The Doctrine of Standing As an Essential Element of the Separation of Powers, 17 Suffolk U. L. Rev. 881, 894 (“Unless the plaintiff can show some respect in which he is harmed more than the rest of us (for example, he is a worker in the particular plant where the Occupational Safety and Health Administration has wrongfully waived legal safety requirements) he has not established any basis for concern that the majority is suppressing or ignoring the rights of a minority that wants protection, and thus has not established the prerequisite for judicial intervention.”).
See Shelley v. Kraemer, 334 U.S. 1, 14-15(1948) (“In Ex parte Virginia, 100 U.S. 339, 347 (1880), the Court observed: ‘A State acts by its legislative, its executive, or its judicial authorities. It can act in no other way.’ In the Civil Rights Cases, 109 U.S. 3, 11, 17 (1883), this Court pointed out that the Amendment makes void ‘State action of every kind’ which is inconsistent with the guaranties therein contained, and extends to manifestations of ‘State authority in the shape of laws, customs, or judicial or executive proceedings.’). See also, 28 USC § 1257- State Courts; Certiorari, http://www.law.cornell.edu/uscode/text/28/1257 (“Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court as follows: (1) By appeal, where is drawn in question the validity of a treaty or statute of the United States and the decision is against its validity. (2) By appeal, where is drawn in question the validity of a statute of any state on the ground of its being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of its validity. (3) By writ of certiorari, where the validity of a treaty or statute of the United States is drawn in question or where the validity of a State statute is drawn in question on the ground of its being repugnant to the Constitution, treaties or laws of the United States, or where any title, right, privilege or immunity is specially set up or claimed under the Constitution, treaties or statutes of, or commission held or authority exercised under, the United States.”).
Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 342 (1938).
Fisher, Ada Lois Sipuel, http://digital.library.okstate.edu/encyclopedia/entries/F/FI009.html.
McLaurin v. Oklahoma State Regents for Higher Ed., 339 U.S. 637, 640 (1950).
Sweatt, Heman Marion, http://www.tshaonline.org/handbook/online/articles/fsw23.
Marbury v. Madison, 5 US 137, 163 (1803) (“It is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit, or action at law, when ever that right is invaded.”); or Antonin Scalia, The Doctrine of Standing As an Essential Element of the Separation of Powers, 17 Suffolk U. L. Rev. 881, 885 (“But legal injury is by definition no more than the violation of a legal right; and legal rights can be created by the legislature“).
28 USC § 1257- State Courts; Certiorari, http://www.law.cornell.edu/uscode/text/28/1257 (“Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court as follows: (1) By appeal, where is drawn in question the validity of a treaty or statute of the United States and the decision is against its validity. (2) By appeal, where is drawn in question the validity of a statute of any state on the ground of its being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of its validity. (3) By writ of certiorari, where the validity of a treaty or statute of the United States is drawn in question or where the validity of a State statute is drawn in question on the ground of its being repugnant to the Constitution, treaties or laws of the United States, or where any title, right, privilege or immunity is specially set up or claimed under the Constitution, treaties or statutes of, or commission held or authority exercised under, the United States.”); and Antonin Scalia, The Doctrine of Standing As an Essential Element of the Separation of Powers, 17 Suffolk U. L. Rev. 881, 886 (“It is a limitation, I would assert, only upon the congressional power to confer standing, and not upon the courts, since the courts have no such power to begin with.”). Compare Regents of the University of California v. Bakke, 438 U.S. 265 (1978) (Allan Bakke’s personal right to admission into Davis Medical School) with Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 351 (1938) (“It was as an individual that he was entitled to the equal protection of the laws, and the State was bound to furnish him within its borders facilities for legal education substantially equal to those which the State there afforded for persons of the white race, whether or not other negroes sought the same opportunity”); or Sipuel v. Board of Regents of the University of Oklahoma, 322 U.S. 631, 632 (1948) (“The petitioner is entitled to secure legal education afforded by a state institution”); or Sweatt v. Painter et al, 339 U.S. 629, 635 (1950) (“petitioner may claim his full constitutional right: legal education equivalent to that offered by the State to students of other races”); or McLaurin v. Oklahoma State Regents for Higher Ed., 339 U.S. 637, 642 (1950) (“Appellant, having been admitted to a state-supported graduate school, must receive the same treatment at the hands of the state as students of other races”).
Civil Rights Cases, 109 U.S. 3, 17 (1883) (“unless protected in these wrongful acts by some shield of state law or state authority, he cannot destroy or injure the right; he will only render himself amenable to satisfaction or punishment; and amenable therefor to the laws of the state where the wrongful acts are committed.”).
See Association of Data Processing Service Organizations, Inc. v. Camp, 397 US 150, 153 (1970).
The United States Constitution Online, http://www.usconstitution.net/const.html (“nor deny to any person within its jurisdiction the equal protection of the laws“); and Slaughter-House Cases, 83 US 36, 81 (1873) (“The existence of laws in the States where the newly emancipated negroes resided, which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied by this clause, and by it such laws are forbidden.”). See, e.g., Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 343-344 (1938) (“The state constitution provides that separate free public schools shall be established for the education of children of African descent (Art. XI, § 3), and by statute separate high school facilities are supplied for colored students equal to those provided for white students (R.S. Mo., §§ 9346-9349). While there is no express constitutional provision requiring that the white and negro races be separated for the purpose of higher education, the state court on a comprehensive review of the state statutes held that it was intended to separate the white and negro races for that purpose also.”); or Sipuel v. Board of Regents of the University of Oklahoma, 322 U.S. 631 (1948) (Oklahoma statutes, 70 Okla. Stat. (1941)§§ 455, 456, 457, which made it a misdemeanor to maintain or operate, teach or attend a school at which both whites and Negroes are enrolled or taught); or Sweatt v. Painter et al, 339 U.S. 629, 631 n.1 (1950) (“It appears that the University has been restricted to white students, in accordance with the State law. See Tex. Const., Art. VII, §§ 7, 14; Tex. Rev. Civ. Stat. (Vernon, 1925), Arts. 2643b (Supp. 1949), 2719, 2900″); or McLaurin v. Oklahoma State Regents for Higher Ed., 339 U.S. 637, 638 (1950) (“Oklahoma statutes, 70 Okla. Stat. (1941)§§ 455, 456, 457, which made it a misdemeanor to maintain or operate, teach or attend a school at which both whites and Negroes are enrolled or taught.”).

Regents of the University of California v. Bakke Was Wrongly Decided

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