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