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

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

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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.

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References ( returns to text)

Civil Rights Cases, 109 U.S. 3, 17 (1883).
Accord 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.”).
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.’”).
Civil Rights Cases, 109 U.S. 3, 17 (1883).
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.”).
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 Shelley v. Kraemer, 334 U.S. 1, 20(1948) (“State action, as that phrase is understood for the purposes of the Fourteenth Amendment, refers to exertions of state power in all forms. And when the effect of that action is to deny rights subject to the protection of the Fourteenth Amendment, it is the obligation of this Court to enforce the constitutional commands.”).
See Civil Rights Cases, 109 U.S. 3, 17 (1883) (“…it is proper to state that civil rights, such as are guarantied by the constitution against state aggression, cannot be impaired by the wrongful acts of individuals, unsupported by state authority in the shape of laws, customs, or judicial or executive proceedings. The wrongful act of an individual, unsupported by any such authority, is simply a private wrong, or a crime of that individual.”); See also, Civil Rights Cases, 109 U.S. 3, 12-13 (1883) (“it must appear as well by allegation as proof at the trial, that the constitution had been violated by the action of the state legislature. Some obnoxious state law passed, or that might be passed, is necessary to be assumed in order to lay foundation of any federal remedy in the case, and for the very sufficient reason that the constitutional prohibition is against state laws impairing the obligation of contracts.”).
Best Medical Schools: Research, http://grad-schools.usnews.rankingsandreviews.com/best-graduate-schools/top-medical-schools/research-rankings.
Post Secondary Education Commission, http://www.cpec.ca.gov/CollegeGuide/CompareInst_ResultsPage.asp.
Top California Colleges, http://collegeapps.about.com/od/collegerankings/tp/top-california-colleges.htm.
Law Schools Are Accused With Falsifying Job Outlook Information, http://www.jdjournal.com/2011/11/10/law-schools-are-accused-with-falsifying-job-outlook-information/.
Worse Than Cheaters, http://amlawdaily.typepad.com/amlawdaily/2012/02/worse-than-cheaters.html.
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 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 Shelley v. Kraemer, 334 U.S. 1, 20(1948) (“State action, as that phrase is understood for the purposes of the Fourteenth Amendment, refers to exertions of state power in all forms. And when the effect of that action is to deny rights subject to the protection of the Fourteenth Amendment, it is the obligation of this Court to enforce the constitutional commands.”).
See Civil Rights Cases, 109 U.S. 3, 17 (1883) (“…it is proper to state that civil rights, such as are guarantied by the constitution against state aggression, cannot be impaired by the wrongful acts of individuals, unsupported by state authority in the shape of laws, customs, or judicial or executive proceedings. The wrongful act of an individual, unsupported by any such authority, is simply a private wrong, or a crime of that individual.”); and Civil Rights Cases, 109 U.S. 3, 12-13 (1883) (“it must appear as well by allegation as proof at the trial, that the constitution had been violated by the action of the state legislature. Some obnoxious state law passed, or that might be passed, is necessary to be assumed in order to lay foundation of any federal remedy in the case, and for the very sufficient reason that the constitutional prohibition is against state laws impairing the obligation of contracts.”).
The United States Constitution Online, http://www.usconstitution.net/const.html (First Section of 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.”).
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.’”).
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.”).
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.”).
28 USC § 1257- State Courts; Certiorari, http://www.law.cornell.edu/uscode/text/28/1257.
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.’”).
Slaughter-House Cases, 83 US 36, 81 (1873).
List of Medical Schools in the United States, http://en.wikipedia.org/wiki/List_of_medical_schools_in_the_United_States (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).
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.”).
See Association of Data Processing Service Organizations, Inc. v. Camp, 397 US 150, 153 (1970).
Id. at 153.
Id. at 153.
Warth v. Seldin, 422 US 490, 508 (1975) (“We hold only 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.”).
See Association of Data Processing Service Organizations, Inc. v. Camp, 397 US 150, 153 (1970); or Antonin Scalia, The Doctrine of Standing As an Essential Element of the Separation of Powers, 17 Suffolk U. L. Rev. 881, 885 (“As I would prefer to view the matter, the Court must always hear the case of a litigant who asserts the violation of a legal right.”); or John G. Roberts, Jr., Article III Limits On Statutory Standing, 42, Duke L.J. 1220, 1228 (“The Court has recognized that the requisite Article III injury ‘may exist solely by virtue of statues creating legal rights, the invasion of which creates standing.’”); or 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, e.g., Brown v. Board of Education, 347 US 483, 488 (1954) (“Under that doctrine [separate but equal], equality of treatment is accorded when the races are provided substantially equal facilities even though these facilities be separate”); or Cooper v. Aaron, 358 US 1, 4, 19 (1958) (“The right of a student not to be segregated on racial grounds in schools so maintained is indeed so fundamental and pervasive that it is embraced in the concept of due process of law.”).
Antonin Scalia, The Doctrine of Standing As an Essential Element of the Separation of Powers, 17 Suffolk U. L. Rev. 881, 891 (“Thus, when an individual who is the object of a law’s requirement or prohibition seeks to challenge it, he always has standing.”). See, e.g., Brown v. Board of Education, 98 F.Supp. 797, 797 (1958) (Black plaintiffs are not allowed to attend white elementary schools); or Cooper v. Aaron, 358 US 1, 4, 9 (1958) (“On September 2, 1957, the day before these Negro students were to enter Central High, the school authorities were met with drastic opposing action on the part of the Governor of Arkansas who dispatched units of the Arkansas National Guard to the Central High School grounds and placed the school ‘off limits’ to colored students.”).
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (“the plaintiff must have suffered an ‘injury in fact’—an invasion of a legally protected interest“).
Warth v. Seldin, 422 U.S. 490, 508 (1975). 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, e.g., Brown v. Board of Education, 98 F.Supp. 797, 798 (1958) (“As against both the state and the school district, they contend that apart from all other factors segregation in itself constitutes an inferiority in educational opportunities offered to Negroes and that all of this is in violation of due process guaranteed them by the Fourteenth Amendment to the United States Constitution.”); or Cooper v. Aaron, 358 US 1, 4, 9 (1958) (“On September 2, 1957, the day before these Negro students were to enter Central High, the school authorities were met with drastic opposing action on the part of the Governor of Arkansas who dispatched units of the Arkansas National Guard to the Central High School grounds and placed the school “off limits” to colored students.”).
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (“Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be ‘fairly. . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court.’”). See, e.g., Brown v. Board of Education, 347 US 483, 486 n.1 (1954) (“In the Kansas case, Brown v. Board of Education, the plaintiffs are Negro children of elementary school age residing in Topeka. They brought this action in the United States District Court for the District of Kansas to enjoin enforcement of a Kansas statute which permits, but does not require, cities of more than 15,000 population to maintain separate school facilities for Negro and white students. Kan. Gen. Stat. § 72-1724 (1949). Pursuant to that authority, the Topeka Board of Education elected to establish segregated elementary schools. Other public schools in the community, however, are operated on a nonsegregated basis.”); or Cooper v. Aaron, 358 U.S. 1, 9 (1958) (“On September 2, 1957, the day before these Negro students were to enter Central High, the school authorities were met with drastic opposing action on the part of the Governor of Arkansas who dispatched units of the Arkansas National Guard to the Central High School grounds and placed the school ‘off limits’ to colored students.”).
Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).
See Association of Data Processing Service Organizations, Inc. v. Camp, 397 US 150, 153 (1970). Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 18 n. 8 (2004) (“Even if these arguments suffice to establish Article III standing, they do not respond to our prudential concerns.”). See John G. Roberts, Jr., Article III Limits On Statutory Standing, 42, Duke L.J. 1220, 1225-1226 (“The proper approach is just the opposite-to ‘presume that federal courts lack jurisdiction unless the contrary appears affirmatively from the record.’”); 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.’”).
Bond v. US, 131 S. Ct. 2355, 2361 (2011) (“Tennessee Electric is the appropriate place to begin. It should be clear that Tennessee Electric does not cast doubt on Bond’s standing for purposes of Article III’s case-or-controversy requirement. This Court long ago disapproved of the case as authoritative respecting Article III limitations. Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 152-154, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). In the instant case, moreover, it is apparent—and in fact conceded not only by the Government but also by amicus—that Article III poses no barrier. One who seeks to initiate or continue proceedings in federal court must demonstrate, among other requirements, both standing to obtain the relief requested, see Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), and, in addition, an ‘ongoing interest in the dispute’ on the part of the opposing party that is sufficient to establish ‘concrete adverseness.’”); or Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 18 n. 8 (2004) (“Even if these arguments suffice to establish Article III standing, they do not respond to our prudential concerns.”).
See Association of Data Processing Service Organizations, Inc. v. Camp, 397 US 150, 153 (1970). Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 18 n. 8 (2004) (“Even if these arguments suffice to establish Article III standing, they do not respond to our prudential concerns.”). See John G. Roberts, Jr., Article III Limits On Statutory Standing, 42, Duke L.J. 1220, 1225-1226 (“The proper approach is just the opposite-to ‘presume that federal courts lack jurisdiction unless the contrary appears affirmatively from the record.’”); 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.’”).
The United States Constitution Online, http://www.usconstitution.net/const.html (Article III, Section 2, Clause 1 of the US Constitution: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority”).
Regents of the University of California v. Bakke, 438 U.S. 265 (1978).

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

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