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


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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 14th 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 39th 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 14th 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 39th 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

 

This article will conclude by arguing that because Allan Bakke and the Regents of the University of California did not have standing to sue under the Fourteenth Amendment and the Supreme Court lacked subject-matter jurisdiction, the issue of race-based affirmative action should have been excluded too.30  In addition, this article will conclude by taking the position that the Supreme Court’s decision to rule on the merits in Regents of the University of California v. Bakke and disregard the original interpretation of the Fourteenth Amendment is bigger than race-based affirmative action; Regents of the University of California v. Bakke took legitimacy away from the Tenth31 and the Fourteenth Amendment.

In Regents of the University of California v. Bakke, 438 U.S. 265, 276 (1978), the Supreme Court’s ultimate holding was that the University of California at Davis Medical School’s special admissions program was unconstitutional32 and that Allan Bakke was entitled to an injunction to gain admission into the Davis Medical School.33  The Supreme Court arrived at these holdings because the Regents of the University of California conceded that the State of California denied Allan Bakke “the equal protection of the laws”34 and the Supreme Court held that strict scrutiny review applied to this case.35

In 1973 and 1974, a white male named Allan Bakke applied to the University of California at Davis Medical School and was rejected both times he applied.36  There were 2,644 applicants for the 1973 entering class and 3,737 for the 1974 class.37  Because of the large number of applications, the admissions committee screened each one to select candidates for further consideration.38  Candidates whose overall undergraduate grade point averages fell below 2.5 on a scale of 4.0 were summarily rejected.39  About one out of six applicants was invited for a personal interview.40  Following the interviews, each candidate was rated on a scale of 1 to 100 by his interviewers and four other members of the admissions committee.41  The rating embraced the interviewers’ summaries, the candidate’s overall grade point average, grade point average in science courses, scores on the Medical College Admissions Test (MCAT), letters of recommendation, extracurricular activities, and other biographical data.42  The ratings were added together to arrive at each candidate’s “benchmark” score.43  Since five committee members rated each candidate in 1973, a perfect score was 500; in 1974, six members rated each candidate, so that a perfect score was 600.44  The full committee then reviewed the file and scores of each applicant and made offers of admission on a “rolling” basis.45  The chairman was responsible for placing names on the waiting list.46  They were not placed in strict numerical order; instead, the chairman had discretion to include persons with “special skills.”47

Only 100 places are available each year, of which 16 are filled under the special admissions program in dispute; applicants for the remaining 84 places are chosen by recourse to the normal admission process.48  In 1973 and 1974, at least 60 white applicants were admitted in both years into Davis Medical School.49  In 1973, Allan Bakke had a strong benchmark score of 468 out of 500 although his application came late in the year, and no applicants in the general admissions process with scores below 470 were accepted after Bakke’s application was completed.50  There were four special admissions slots left at that time that Allan Bakke was not considered for.51

Although Allan Bakke had strong benchmark scores, applicants were admitted with grade point averages, MCAT scores, and benchmark scores significantly lower than his;52 the applicants were admitted through a special admissions program for black students, Mexican-American students, and Asian students that was separate from the regular admissions program.53  No evidence was presented that Allan Bakke was placed on the waitlist in 1973 and he was not placed on the waitlist in 1974.54  After receiving the second rejection, he relied on the court system for admission into Davis Medical School.55

Allan Bakke filed a complaint against the University seeking mandatory, injunctive, and declaratory relief to compel the University to admit him, alleging he was qualified for admission and the sole reason his application was rejected was because he was of the Caucasian race.56  The complaint also alleged that all students admitted under the special program were members of racial minorities, that the program applied separate, i.e., preferential, standards of admission as to them, and that the use of separate standards resulted in the acceptance of minority applicants who were less qualified for the study of medicine than Allan Bakke and other nonminority applicants not selected.57  He claimed he had been the victim of invidious discrimination because of his race, in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.58  He made these allegations in the Superior Court of California59 under the Equal Protection Clause of the Fourteenth Amendment,60 Art. 1, § 21, of the California Constitution,61 and § 601 of Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U.S.C. § 2000d.62

The University filed a cross-complaint for declaratory relief, seeking a determination that the special admission program was valid.63  The cross-complaint stated that the University considers the minority status of an applicant as only one factor in selecting students for admission, and that the purposes of the special admissions program were to promote diversity in the student body and the medical profession, and to expand medical education opportunities to persons from economically or educationally disadvantaged backgrounds.64  The cross-complaint did not allege that Allan Bakke should be denied relief because of laches.65

The California trial court ruled that Davis Medical School’s admissions program discriminated against Allan Bakke because of his race and that he was entitled to have his application evaluated without regard to his race or the race of any other applicant.66  It found against the University on its cross-complaint for declaratory relief.67  However, the court determined that Allan Bakke was not entitled to an order for admission to the University because, although he was qualified to be admitted in both years in which he applied, he would not have been selected even if there had been no special program for minorities.68  Thus, the trial court denied Allan Bakke’s prayer for an injunction ordering his admission.69  Both parties appealed the trial court’s rulings and the case was transferred to the Supreme Court of California because of the importance of the issue.70

The Supreme Court of California affirmed the trial court’s ruling that the special admissions program was invalid.71  The Supreme Court of California reversed the trial court’s ruling to deny Allan Bakke’s injunction; the Supreme Court of California ruled that Allan Bakke’s injunction for admission into Davis Medical School should be granted and he must recover his costs on the appeals.72  The granting of Allan Bakke’s injunction was based on Davis Medical School’s concession that it cannot meet the burden of proving that the special admissions program did not result in Allan Bakke’s exclusion.73  Following the Supreme Court of California’s ruling, the Regents of the University of California filed a writ of certiorari to the Supreme Court, focusing exclusively on the constitutionality of Davis Medical School’s special admissions program under the Equal Protection Clause of the Fourteenth Amendment.74  The Supreme Court granted certiorari upon the validity of the special admissions program under the Equal Protection Clause of the Fourteenth Amendment.75  As a result of the Supreme Court’s decision to grant certiorari, the Supreme Court of California’s order to grant Allan Bakke’s injunction was stayed pending the Supreme Court’s ruling on the constitutionality of Davis Medical School’s special admissions program.76

Prior to the US Supreme Court agreeing to grant certiorari on this case, the Supreme Court of California never ordered an injunction to prohibit any use of race in Davis Medical School’s admissions program.77  Therefore, the Regents of the University of California’s writ of certiorari,78 which sought a determination that Davis Medical School’s special admissions program was valid,79 was the equivalent of requesting an advisory opinion from the Supreme Court;80 the Supreme Court is not permitted to give advisory opinions.81  Further, the Supreme Court of California had already addressed the issue the case raised,82 making the “case and controversy”83 moot.84  For the sake of argument, even if the Supreme Court of California had ruled against Allan Bakke,  his claim that his “Caucasian race” was the sole reason he was rejected was not specific and concrete.85  In addition, there was no evidence that the State of California created a legally protected interest86 in regard to assessing the bench mark scores.87  There was no evidence presented that no California State Medical School would accept him solely because he was white.88  Further, there was no evidence presented that Davis Medical School relied on a “shield of state law or state authority,” 89 to discriminate against white applicants as a class.90  In addition, there was no evidence presented about how many students were rejected with benchmark scores between 46891 and 500 in 1973 and between 54992 and 600 in 1974.  Further, there was no evidence presented that Davis Medical School must rely solely on the benchmark scores to determine admission into the medical school.93  Also, there was no evidence presented that Allan Bakke attempted to obtain a state remedy94 through introducing legislation to the California Legislature,95 before determining that a federal remedy was necessary.96

Both parties agreed that the Supreme Court had subject-matter jurisdiction under 28 U.S.C 1257(3).97  Also, the Supreme Court assumed that jurisdiction was not an issue in Bakke98 although there was precedent to support that challenge.99  However, the Regents of the University of California did argue over the level of judicial scrutiny to be applied to the special admissions program.100  Petitioner, Regents of the University of California, argued that the court below erred in applying strict scrutiny review because strict scrutiny review should be reserved for classifications that disadvantage “discrete and insular minorities.”101  Petitioner explained that white males are not a “discrete and insular minority” requiring extraordinary protection from the majoritarian political process.102  However, the Supreme Court rejected this argument because white males do not have to be a “discrete and insular minority” in order to subject racial or ethnic distinctions to strict scrutiny review103 and the Supreme Court has never held that discreteness and insularity constitute necessary preconditions to a holding that a particular classification is invidious.104

Petitioner also argued that on several occasions the Supreme Court approved preferential classifications without applying strict scrutiny review.105  However, the Supreme Court rejected this argument too because (1) in the area of school discrimination, there was no judicial determination of constitutional violation as a predicate for the formulation of a remedial classification;106 (2) in the area of employment discrimination, they have never approved preferential classifications in the absence of proved constitutional or statutory violations;107 and (3) in the area of sex discrimination, they have never viewed gender as inherently suspect or as comparable to racial or ethnic classifications for the purpose of equal protection analysis.108  The Supreme Court ruled that racial and ethnic distinctions “of any sort” are inherently suspect and therefore required strict scrutiny review.109

II. History Of The Fourteenth Amendment

            A. Originalist Understanding Of The Fourteenth Amendment

“We may add that while all admit that the benefits and burdens of public taxation must be shared by citizens without discrimination against any class on account of their race, the education of the people in schools maintained by state taxation is a matter belonging to the respective States, and any interference on the part of Federal authority with the management of such schools cannot be justified except in the case of a clear and unmistakable disregard of rights secured by the supreme law of the land.”110

The Supreme law of the land that allows the “Federal authority” to interfere with the management of state schools is the 14th Amendment.111  However, the “Federal authority” can only interfere “in the case of a clear and unmistakable disregard of rights secured by the supreme law of the land.”112  The first section of the Fourteenth Amendment only prohibits actions that may fairly be said to be that of the States;113 the first section “erects no shield against merely private conduct.”114  The Fourteenth Amendment applies when a State acts by its legislative authority, executive authority, judicial authorities, or by its public policy115 to deny rights subject to the protection of that amendment.116  The rights created by the Fourteenth Amendment are guaranteed; the rights established are personal rights.117  The rights guaranteed by the Fourteenth Amendment are so personal, they are “unalienable rights.”118

In 1868, the 39th Congress was intent upon establishing in the federal law a broader principle than would have been necessary to protect the newly freed black slaves.119  The central purposes behind the Fourteenth Amendment, just like the Thirteenth and Fifteenth Amendments, was freedom for former black slaves, the security and firm establishment of that freedom, and the protection of the former black slaves from oppressions of those who had formerly exercised unlimited control over him.120  Prior to the passage of the Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution, the Federal Government could not enforce the Bill of Rights against the states.121  Thus, the framers of the Fourteenth Amendment had two primary goals: (1) the establishment of equality in the enjoyment of basic civil and political rights and (2) the preservation of those rights from discriminatory action on the part of the States based on considerations of race or color.122

Keeping the framers goals in mind, it must appear in the allegation and at trial that the Constitution has been violated by the action of the state’s legislative authority, executive authority, or judicial authority, or by its public policy;123 evidence that a state law passed or might be passed is necessary to establish the elements of the claim and demonstrate that the pleader is entitled to any federal relief because “the constitutional prohibition is against state laws taking away personal rights.”124  Further, without any evidence that a state law passed or might be passed, a separation of powers issue exists.125  Unless the wrongful act of an individual is protected “by some shield of state law or state authority,” the wrongful act does not violate the Fourteenth Amendment.126    The Fourteenth Amendment is not violated because the wrongful act of an individual did not take away a personal right and state law may be able to remedy the wrongful act.127

The history behind the Fourteenth Amendment demonstrates that when state action denies a personal right that violates the Fourteenth Amendment, such as a Governor sending state troops to a public high school to enforce racial segregation128 and deny a person the personal right to not be segregated on racial grounds where there is state participation,129 the Supreme Court is obligated to enforce the US Constitution against the States.130  Congress has the power to enforce the prohibitions in the Fourteenth Amendment by adopting appropriate legislation for correcting the effects of such prohibited state laws or state acts to render those prohibited laws or acts “null, void, and innocuous.”131  The President, Congress, the Supreme Court, and the state government officials in the several states took an oath to support the Constitution and are bound by the Constitution.132

B. Interpreting the Fourteenth Amendment

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.  No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.133

The 39th Congress was very careful to account for as much as possible as a result of the history leading up to the Civil War.134  Defining citizenship in the United States and within the States was necessary to ensure that Dred Scott Part II135 would not occur: “a man of African descent, whether a slave or not, was not and could not be a citizen of a State or of the United States.”136  The first sentence of the first section of the Fourteenth Amendment defines citizenship both in the United States and within the States.137  The Supreme Court pointed out that under this clause, a person must reside within the State to make him a citizen of it while it is only necessary to be born or naturalized in the United States to be a citizen of the Union.138

It should be noted that although it is true that the drafters of the Fourteenth Amendment ignored the pleas of women for the inalienable right to vote,139 the first sentence (and section) of the Fourteenth Amendment unambiguously140 used the term “person” in regard to defining citizens of the United States and of the several states;141 males and females are persons.142  Therefore, “there is no reason to resort to legislative history”143 to determine that the first section of the Fourteenth Amendment applies to women,144 making an Equal Rights Amendment145 completely unnecessary and duplicative.146  Thus, the first section of the Fourteenth Amendment should trigger the same legal questions state action based on race raises.147

The first clause in the second sentence of the first section of the Fourteenth Amendment is the Privileges and Immunities Clause,148 which protects the citizens of the United States broadly but not the citizens of the individual states.149  The second clause in the second sentence of the first section of the Fourteenth Amendment is the Due Process Clause150 of the Fourteenth Amendment.  Among the civil rights the 39th Congress intended to guard against were the rights to acquire, enjoy, own and dispose of property.151  “Equality in the enjoyment of property rights was regarded by the framers of that Amendment as an essential pre-condition to the realization of other basic civil rights and liberties which the Amendment was intended to guarantee.152

The third clause in the second sentence of the first section of the Fourteenth Amendment is the Equal Protection Clause.153  The purpose of this clause was to remedy the existence of laws or policies154 in the States where the newly emancipated black slaves resided that “discriminated with gross injustice and hardship against them as a class.”155  “Discriminated with gross injustice and hardship against them as a class156 means the state law or state action is adverse to the rights of a class of citizens.157  When a state enacts a law that is adverse to the rights of a class of citizens, such citizens always have standing.158

For example, in Dred Scott v. Sanford, 60 U.S. 393, 459 (1857), there was a Missouri law that declared that because Dred Scott was of African descent and because his “ancestors were of pure African blood, and who were brought into this country and sold as slaves” that Missouri did not have to recognize the law of Illinois and the other free states that declared that African Americans were freeman.159  The US Supreme Court held that the Federal Courts lacked jurisdiction in that case because the question of who was a freeman and who was a slave was a question “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.”160  The intent of the Fourteenth Amendment was to guard against state acts by its legislative authority, executive authority, judicial authorities, or by its public policy161 that “discriminated with gross injustice and hardship against [African Americans] as a class162 that the state law denied rights that are so personal,163 they are “unalienable rights.”164

The 39th Congress decided to make the Fourteenth Amendment broader than the 1866 Civil Rights Act to ensure that “all persons,” not merely “citizens,” would enjoy equal rights under the law.165  Equal rights under the law means that “equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights; that all persons should be equally entitled to pursue their happiness and acquire and enjoy property; that they should have like access to the courts of the country for the protection of their persons and property, the prevention and redress of wrongs, and the enforcement of contracts; that no impediment should be interposed to the pursuits of any one, except as applied to the same pursuits by others under like circumstances; that no greater burdens should be laid upon one than are laid upon others in the same calling and condition; and that in the administration of criminal justice no different or higher punishment should be imposed upon one than such as is prescribed to all for like offences.”166

III. Johnson v. Committee on Examinations and its relevance to Bakke

In Defunis v. Odegaard, 416 US 312 (1974) and in Hadley v. State of Alabama, 409 U.S. 937 (1972), Justice Douglas made a reference to the Johnson v. Committee on Examinations case that the Supreme Court denied certiorari.167  In the history of race-based affirmative action cases, Johnson came before Defunis, which came before Bakke.168  Justice Douglas believes the Supreme Court should have taken certiorari in Johnson because William Jacob Johnson,169 a white candidate for admission to the Bar of Arizona, claimed discrimination against him as compared with the treatment given to black candidates.170  The passing grade on the Arizona Bar Exam was a 70; the white candidate alleged that he got below a 70 and was rejected while the bar examiners reconsidered the papers submitted by failing minority applicants whose scores were below a 70.171  Those minority applicants were admitted to the Bar.172

Johnson brought a civil rights action under the Civil Rights Act of 1964 in Federal District Court,173 seeking both damages and injunctive relief but the District Court dismissed the action and the Court of Appeals affirmed.174  The Ninth Circuit Court of Appeals held that the lower federal courts did not have jurisdiction to review the decisions of the Arizona Supreme Court on admissions to the state Bar175 and that the complaint failed to state a claim.176  The US Supreme Court denied the petition for writ of certiorari in Johnson v. Committee on Examinations,177 denied the petition for writ of mandamus and/or prohibition and/or certiorari in Johnson v. Wilmer,178 and denied the petition for a rehearing in Johnson v. Wilmer.179  Although Johnson is different from Bakke because Johnson was not a Fourteenth Amendment case,180 both cases are similar because standing should have been an issue in both cases;181 William Jacob Johnson’s petition  for writ of certiorari and the Regents of the University of California’s petition for writ of certiorari failed to state a claim upon which relief could be granted.182

IV. The Supreme Court Should Have Denied The Regents of the University of California’s Writ of Certiorari

Petitioner and Respondent in Bakke183 agreed that the Supreme Court had subject-matter jurisdiction through 28 U.S.C. § 1257(3)184 and the Supreme Court determined that the Equal Protection Clause of the Fourteenth Amendment applied.185  However, a federal court “can and must notice” if subject-matter jurisdiction does not exist. 186  The Supreme Court has ruled on several occasions that they cannot give advisory opinions.187  In Flast v. Cohen, the Supreme Court stated that “it is quite clear that ‘the oldest and most consistent thread in the federal law of justifiability is that the federal courts will not give advisory opinions.’”188  The Supreme Court cannot give advisory opinions because such opinions create separation of powers issues189 and such opinions do not address “concrete legal issues, presented in actual cases.”190

In Bakke, the Regents of the University of California filed the writ of certiorari to the Supreme Court.191  The Supreme Court of California ruled that Davis Medical School’s special admissions program was invalid in the context of Allan Bakke’s case and directed the trial court “to enter judgment ordering [Allan] Bakke to be admitted.”192  The granting of Allan Bakke’s injunction was based on Davis Medical School’s concession that it could not meet the burden of proving that the special admissions program did not result in Bakke’s exclusion.193 The Regents of the University of California filed the writ of certiorari because they wanted the Supreme Court to overrule the Supreme Court of California’s ruling that the special admissions program at Davis Medical School violated the Equal Protection Clause of the Fourteenth Amendment.194

In their writ of certiorari, the Regents of the University of California never argued that Allan Bakke’s injunction for admission into Davis Medical School should be reverse.195  Further, both parties were focusing exclusively upon the validity of Davis Medical School’s special admissions program under the Equal Protection Clause of the Fourteenth Amendment.196  Last but not least, the Supreme Court of California never ordered an injunction to prohibit any use of race in the admissions process.197  Therefore, the sole reason the Supreme Court took up the Regents of the University of California’s writ of certiorari was to give an advisory opinion on the constitutionality of Davis Medical School’s admissions program under the Equal Protection Clause of the Fourteenth Amendment.198  The Supreme Court had no reason to intervene in this California case because the State of California had already addressed the issue the case raised,199 which makes the “case and controversy”200 moot,201 and the Regents of the University of California were not challenging the Supreme Court of California’s ruling that Allan Bakke’s injunction should be granted.202  The 14th Amendment was not created to give a state school an advisory opinion on the constitutionality of its admissions program;203 the 39th Congress never thought that that’s what it meant and nobody ever voted for that.204

Besides the Supreme Court, the California courts also cannot give advisory opinions.205 In the Regents of the University of California’s cross-complaint for declaratory relief, they only wanted a determination that the special admission program was valid.206  However, the cross-complaint’s request was not ripe because this case was between 2 litigants and was not a class action.207  Further, Allan Bakke and the Supreme Court of California never requested nor ordered an injunction to prohibit any use of race in Davis Medical School’s admissions program.208   Therefore, the Regents of the University of California’s cross-complaint either should have been dismissed at the trial court level or the Supreme Court of California should have ruled that they cannot rule on the cross-complaint by itself because the cross-complaint was asking for an advisory opinion on Davis Medical School’s admissions program.209

Besides the advisory opinion issue, there was still another issue with the Regents of the University of California’s writ of certiorari to the Supreme Court.  Petitioner and Respondent in Bakke agreed that the Supreme Court had subject-matter jurisdiction210 in Bakke through 28 U.S.C. § 1257(3).211  The Regents of the University of California’s writ of certiorari to the Supreme Court focused exclusively on whether Davis Medical School’s admissions program was in compliance with the Equal Protection Clause of the Fourteenth Amendment; Allan Bakke’s brief also focused exclusively on the Equal Protection Clause of the Fourteenth Amendment.212

The Regents of the University of California’s claim that the Supreme Court has     subject-matter jurisdiction is legally problematic under 28 U.S.C. § 1257(3) because if they wanted an answer to the legality of Davis Medical School’s admissions program under the Equal Protection Clause of the Fourteenth Amendment, that clause presupposes that a state law or state policy is at issue in the case.213  Therefore, in order for the Regents of the University of California’s writ of certiorari to satisfy 28 U.S.C. §1257(3), they needed to demonstrate evidence of “a statute of any State is drawn in question on the ground of its being repugnant to the Constitution, treaties, or laws of the United States.”214

The Regents of the University of California’s writ of certiorari never presented evidence that a California statute was repugnant to the “Constitution, treaties, or laws of the United States.”215  Further, there was no evidence presented of a public policy216 in California to discriminate against white students as a class;217 Bakke218 only reflects that one California medical school’s admissions program was at issue although there were five total medical schools in California.219  Therefore, based on the Regents of the University of California’s writ of certiorari, 28 U.S.C. §1257(3)220 did not apply.

V. Even if the Supreme Court of California Had Ruled Against Allan Bakke, Allan Bakke Did Not Suffer A Legal Injury

The Supreme Court ruled three years earlier in Warth v. Seldin, 422 U.S. 490, 508 (1975) that “a plaintiff who seeks to challenge exclusionary zoning practices must allege specific, concrete facts demonstrating that the challenged practices harm him, and that he personally would benefit in a tangible way from the court’s intervention.  Absent the necessary allegations of demonstrable, particularized injury, there can be no confidence of ‘a real need to exercise the power of judicial review’ or that relief can be framed ‘no broader than required by the precise facts to which the court’s ruling would be applied.”221  In Bakke, Allan Bakke “filed a complaint against the University seeking mandatory, injunctive, and declaratory relief to compel the University to admit him, alleging he was qualified for admission and the sole reason his application was rejected was that he was of the Caucasian race.”222

Assuming for the sake of argument that the Supreme Court of California had ruled against Allan Bakke, if the Supreme Court had relied on its ruling in Warth three years prior to Bakke, Allan Bakke’s case should have received the same outcome as William Jacob Johnson’s case in Johnson because Allan Bakke failed to allege specific, concrete facts223 about “how he is harmed more than the rest of us.”224  In Justice Powell’s opinion in Warth, he stated that “Of course, Art. III’s requirement remains: the plaintiff still must allege a distinct and palpable injury to himself, even if it is an injury shared by a large class of other possible litigants.”225  However, in Bakke, Allan Bakke would have failed to demonstrate that the sole reason he was rejected from Davis Medical School was because of his “Caucasian race.”226  In 1973 and 1974, at least 60 of the 100 admitted applicants into Davis Medical School were white;227 100 applicants were selected out of 2,644 applicants in 1973 and 3,737 applicants in 1974.228  Therefore, if at least 60 white applicants were admitted in 1973 and in 1974, why would Davis Medical School single out Allan Bakke solely because he was white?229  That doesn’t make any sense and such evidence proves that Allan Bakke was not rejected from Davis Medical School solely because he was white.230

Allan Bakke’s claim that his “Caucasian race” was the sole reason he was rejected was not specific and concrete231 for other reasons as well.  There was no evidence presented about how many students were rejected with benchmark scores between 468232 and 500 in 1973 or between 549233 and 600 in 1974.   Such evidence is legally significant in this case because if there were only 4 slots left in 1973, it is highly likely that more than 4 students were rejected from Davis Medical School with scores between 468234 and 500.235  Therefore, regardless of whether he was white, statistical odds236 support the likelihood that he still could have been rejected from Davis Medical School.

More importantly, there was no evidence presented that Davis Medical School must rely solely on the benchmark scores to determine admission into the medical school.237  Therefore, the State of California did not create a legally protected interest238 in regard to considering the benchmark scores with admission into Davis Medical School.239  Such evidence is legally significant because if there was no evidence presented that Davis Medical School must rely solely on the benchmark scores to determine admission into the medical school,240 restricting the analysis solely to benchmark scores is a different admissions process than the admissions process Davis Medical School relied on.  Further, such evidence is legally significant because if there was no evidence presented that Davis Medical School must rely solely on the benchmark scores to determine admission into the medical school,241 then Davis Medical School has the freedom to select the best and most diverse admission class that they see fit242 as long as it does not lead to outcomes such as what was presented in Yick Wo.243  Allan Bakke would have been asking the Supreme Court to play admissions officer in Bakke and that is not a federal court’s job or expertise;244 thus, because Allan Bakke would have failed to show that “he is harmed more than the rest of us, 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.”245

VI. Even if the Supreme Court of California Had Ruled Against Allan Bakke, The State of California Did Not Deny Allan Bakke the Equal Protection of the Law

A. Introduction

“Petitioner does not deny that decisions based on race or ethnic origin by faculties and administrations of state universities are reviewable under the Fourteenth Amendment.  See, e. g., Missouri ex rel. Gaines v. Canada, 305 U. S. 337 (1938); Sipuel v. Board of Regents, 332 U. S. 631 (1948); Sweatt v. Painter, 339 U. S. 629 (1950); McLaurin v. Oklahoma State Regents, 339 U. S. 637 (1950).”246  Justice Powell made 3 assumptions when he relied on the four cases cited above to determine that the Fourteenth Amendment applied to Bakke: (1) State law or state action was involved in Bakke, (2) decisions by faculties and administrations of one state university demonstrates state action, (3) Allan Bakke was denied a personal right just like Lloyd Gaines,247 Ada Lois Sipuel,248 G.W. McLaurin,249 and Heman Marion Sweatt.250  This analysis will demonstrate that all three assumptions were flawed and that the flaws were legally significant because a subject-matter jurisdiction challenge under the Equal Protection Clause of the Fourteenth Amendment should have been raised.251

B. There Was No State Law or State Action in Bakke and Allan Bakke Was Not Denied A Personal Right

No State shall deny to any person within its jurisdiction the equal protection of the laws.252

The Equal Protection Clause of the Fourteenth Amendment is applies when a State acts by it legislative authority, executive authority, judicial authorities, or by its public policy253 to deny rights subject to the protection of that amendment.254  The purpose of the Equal Protection Clause was to remedy the existence of laws or policies255 in the States where the newly emancipated black slaves resided that “discriminated with gross injustice and hardship against them as a class.”256  Therefore, the Equal Protection Clause of the Fourteenth Amendment presupposes that a state law or state policy is at issue in a case.257

In Missouri ex rel. Gaines v. Canada, 305 U. S. 337 (1938), Lloyd Gaines was a citizen of Missouri258 who had a Fourteenth Amendment claim because he was refused admission upon the ground that it was “contrary to the constitution, laws and public policy of the State [of Missouri] to admit a negro as a student in the University of Missouri.”259  Further, the State of Missouri denied Lloyd Gaines the personal right of being “furnished 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.”260  The Missouri Constitution or the Missouri laws are sufficient evidence of state action because both are enacted by the Missouri Legislature261 and apply to all citizens, including faculties and administrations of state universities, of the State of Missouri.  Because the laws enacted by the Missouri Legislature are binding on all citizens of the State of Missouri, a Missouri citizen has standing if that citizen is “the object of the law’s requirement or prohibition.”262  Further, a Missouri citizen can obtain federal relief from such laws if that citizen can demonstrate that he is entitled to federal relief because his personal rights were taken away by state laws that violate the US Constitution.263

In Sipuel v. Board of Regents of Univ. of Okla., 332 U.S. 631 (1948) and in McLaurin v. Oklahoma State Regents for Higher Ed., 339 U.S. 637 (1950), Ada Lois Sipuel264 and G.W. McLaurin265 were state residents of Oklahoma266 who had Fourteenth Amendment claims because both were refused admission into the University of Oklahoma because of a Oklahoma statute passed in 1941 which made it “a misdemeanor to maintain or operate, teach or attend a school at which both whites and Negroes are enrolled or taught.”267  Further, the State of Oklahoma denied both of them personal rights: Ada Lois Sipuel was denied the personal right to secure a legal education afforded by a state institution268 and G.W. McLaurin was denied the personal right to receive the same treatment at the hands of the state as students of other races.269  Just as in Missouri ex rel. Gaines, the Oklahoma laws are sufficient evidence of state action because it was enacted by the Oklahoma Legislature270 and it applies to all citizens of the State of Oklahoma.  Because the laws of the Oklahoma Legislature are binding on all citizens of the State of Oklahoma, an Oklahoma citizen has standing if that citizen is “the object of the law’s requirement or prohibition.”271  Further, an Oklahoma citizen can obtain relief from such laws if that citizen can demonstrate that she is entitled to federal relief because her personal rights were taken away by state laws that violate the US Constitution.272

In Sweatt v. Painter et al, 339 U.S. 629 (1950), Heman Marion Sweatt was a state resident of Texas273 who had a Fourteenth Amendment claim because the University has been restricted to white students, in accordance with the Texas Constitution and Texas State law.274  Further, the State of Texas denied Heman Marion Sweatt his full constitutional right to a legal education equivalent to that offered by the State to students of other races.275  Just as in Missouri ex rel. Gaines, Sipuel, and McLaurin, the Texas laws are sufficient evidence of state action because it was enacted by the Texas Legislature276 and it applies to all citizens of the State of Texas.  Because the laws of the Texas Legislature are binding on all citizens of the State of Texas, a Texas citizen has standing if that citizen is “the object of the law’s requirement or prohibition.”277  Further, a Texas citizen can only obtain federal relief from such laws if that citizen can demonstrate that he is entitled to federal relief because his personal rights were taken away by state laws that violate the US Constitution.278

Unlike in Missouri ex rel. Gaines, Sipuel, McLaurin, and Sweatt, there was no evidence presented in Bakke that the California Legislature passed legislation that prevented white students from gaining admission into California State Medical Schools.279  Evidence of state action by the California Legislature is legally significant in Bakke because without such evidence, there is a separation of powers issue280 and the Equal Protection Clause does not apply.281  The Fourteenth Amendment was intended to guard against state action282 and not against a specific school’s actions.283

Unlike in Missouri ex rel. Gaines, Sipuel, McLaurin, and Sweatt, there was no evidence presented that all California State Medical Schools would reject Allan Bakke solely because he was white.284  In 1973 and 1974, the State of California had five medical schools Allan Bakke could have applied to: UC San Diego School of Medicine, UC Davis School of Medicine, UC Irvine School of Medicine, David Geffen School of Medicine at UCLA, and UC San Francisco School of Medicine. 285  Bakke only reflects that Allan Bakke applied to one of the five possible medical schools in California; based on Allan Bakke’s benchmark score,286 it is more likely than not that if he had applied to any of the other four medical schools, at least one of them would have admitted him.  Therefore, there was no evidence presented of a California state policy287 to discriminate against white students as a class.288  Evidence of state action through a California state policy is legally significant in Bakke because without such evidence, there is a separation of powers issue289 and the Equal Protection Clause does not apply.290  The Fourteenth Amendment was intended to guard against state action291 and not against a specific school’s actions.292

Last but not least, because there was no evidence presented that the California Legislature passed legislation that took away a white student’s right to secure a medical education afforded by a state institution nor was there any evidence of a policy in the State of California to not admit white students to medical school nor was there any evidence presented that the State of California created a legally protected right in regard to the benchmark scores,293 the only “personal right”294 that would have been taken away from Allan Bakke was a “personal right” to admission into Davis Medical School.  The 14th Amendment was not created to guard against a student’s personal right to admission into a specific school;295  the 39th Congress never thought that that’s what it meant and nobody ever voted for that.296

C. Decisions By Faculties And Administrations Of ONE State University Do Not Demonstrate State Action

Bakke is distinguishable from Missouri ex rel. Gaines, Sipuel, McLaurin, and Sweatt for one more reason: decisions by faculties and administrations of one state university do not demonstrate state action.297  In Missouri ex rel. Gaines, Sipuel, McLaurin, and Sweatt, the administrations of the state universities were ordered to deny black students admission to white schools based on race because of their state’s statute or constitution;298 such reliance proves state action.299  However, in Bakke there was no evidence that Davis Medical School relied on a “shield of state law or state authority,” 300 to discriminate against white applicants as a class.301   Unless the decisions by faculties and administrations of a state university relies on legislative authority, executive authority, judicial authorities, or by its public policy302 to deny personal rights subject to the protection of the Fourteenth Amendment,303 faculties and administrations of a state university should be viewed as private actors for Fourteenth Amendment purposes.304

For example, the California State Schools are competing against each other to create the best possible incoming class for US News and World Reports purposes.305  The California State Schools are not required to offer the same exact courses or programs;306 each California State School has a different marketing strategy to attract applicants.307  Some schools value their employment statistics when marketing themselves to prospective applicants.308  Some schools over value their US News and World Report ranking in order to market themselves to prospective applicants.309  Thus, individual state schools generally are looking out for their own school’s business interests.  The individual state schools should have no incentive to deny a race of students admission into their school unless they are ordered to do so by “legislative authority, executive authority, judicial authorities, or by its public policy.”310  Therefore, unless the decisions by faculties and administrations of a state university relies on legislative authority, executive authority, judicial authorities, or by its public policy311 to deny personal rights subject to the protection of the Fourteenth Amendment,312 faculties and administrations of a state university should be viewed as private actors for Fourteenth Amendment purposes.313  The Fourteenth Amendment was intended to guard against state action314 and not against a specific school’s actions.315

D. No State Law or State Policy= 28 U.S.C. 1257 (3) Does Not Apply

Assuming for the sake of argument that the Supreme Court of California had ruled against Allan Bakke, his writ of certiorari would have had the same problem the Regents of the University of California’s writ should have had: the Equal Protection Clause of the Fourteenth Amendment presupposes that a state law or state policy is at issue in the case.316  Therefore, the only way Allan Bakke’s writ of certiorari could have satisfied 28 U.S.C. §1257(3) for an Equal Protection Clause challenge was demonstrating evidence of “a statute of any State is drawn in question on the ground of its being repugnant to the Constitution, treaties, or laws of the United States.”317

Allan Bakke’s writ of certiorari would never have presented evidence that a California statute was repugnant to the “Constitution, treaties, or laws of the United States.”318  Further, there was no evidence presented of a public policy319 in California to discriminate against white students as a class;320 Bakke only reflects that one California medical school’s admissions program was at issue although there were five total medical schools in California.321  Therefore, if Allan Bakke had submitted a writ of certiorari, 28 U.S.C. §1257(3)322 would not have applied.

VII. Even If The Supreme Court of California Had Ruled Against Allan Bakke, His Interest Is Not Within the Zone of Interests323 To Be Protected By The Fourteenth Amendment

The Supreme Court also should have relied on its opinion in Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150 (1970) to conclude that the Fourteenth Amendment did not apply in Bakke.  In Camp, the Court announced that standing concerns whether “the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.”324  Further, Camp announced that a legal right is “one of property, one arising out of contract, one protected against tortious invasion, or one founded on a statute which confers a privilege.”325

This article has demonstrated that the Fourteenth Amendment only applies when there is specific and concrete evidence326 of (1) state action327 that is repugnant to the Constitution,328 (2) a person is the object of the state action,329 (3) that person suffered a legal injury330 as a result of the state action,331 (4) a party relied on the state action in order to cause the legal injury,332 and (5) it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.”333  Without evidence relating to these elements, the plaintiff ‘s interest is not within the zone of interests to be protected or regulated by the Fourteenth Amendment.334  Thus, the plaintiff has not proven that he has standing to merit Fourteenth Amendment relief.335

This article demonstrated that Allan Bakke would have failed to satisfy this test for standing for Fourteenth Amendment relief; Allan Bakke’s interest would not have been within the zone of interests to be protected or regulated by the Fourteenth Amendment.336  Therefore, the Supreme Court lacked subject-matter jurisdiction337 in Bakke338 through the Fourteenth Amendment.

VIII. If All Persons Who Could Raise A Particular Issue Are Excluded, The Issue Is Excluded Too!339

The Supreme Court lacked subject-matter jurisdiction340 in Regents of the University of California v. Bakke through the Fourteenth Amendment.  28 U.S.C. §1257341 did not apply because the Equal Protection Clause presupposes that a state law or state policy is at issue in a case.342  Further, the Supreme Court is not permitted to give advisory opinions on the constitutionality of an admissions program.343  Even if the Supreme Court of California had ruled against Allan Bakke, Allan Bakke’s case should have received the same outcome as William Jacob Johnson’s case in Johnson because Allan Bakke failed to allege specific, concrete facts344 about “how he is harmed more than the rest of us.”345  Because the Supreme Court lacked subject-matter jurisdiction under the Fourteenth Amendment and neither party would have had standing to sue under the Fourteenth Amendment, the issue of race-based affirmative action should have been excluded too.346  The 14th Amendment was not created to give a state school an advisory opinion on the constitutionality of an admissions program347 nor was it created to guard against a student’s personal right to admission into a specific school;348 the 39th Congress never thought that that’s what it meant and nobody ever voted for that.349

Bakke v. Regents of the University of California350 should never have gone past the Supreme Court of California; the State of California had already resolved the issue the case raised.351  Although not all people will buy into an originalist interpretation of the Fourteenth Amendment, such an interpretation serves significant purposes: “Careful adherence to the ‘state action’ requirement preserves an area of individual freedom by limiting the reach of federal law and federal judicial power.”352  Further, when the state action requirement is ignored, the Supreme Court is unconstitutionally aggrandizing itself at the expense of the states;353 thus, an originalist interpretation of the Fourteenth Amendment ensures that a federal court does not assume the role of a state legislature or Congress.354  When the prerequisites for standing under the Fourteenth Amendment are ignored, the Supreme Court is undermining a state’s right and ability to address their citizens’ concerns.355  When a state’s right and ability to solve problems are undermined, the citizens of a state have less incentive to learn and take advantage of state government remedies.356  The Supreme Court’s decision to rule on the merits in Regents of the University of California v. Bakke and disregard the original interpretation of the Fourteenth Amendment is bigger than race-based affirmative action; Regents of the University of California v. Bakke took legitimacy away from the Tenth357 and the Fourteenth Amendment.  The Supreme Court demonstrated a lack of “judicial self-restraint”358 when it decided to rule on the merits in Bakke359 because a ruling on the merits in Bakke should never have taken place under the Fourteenth Amendment.360

 

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