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.