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

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

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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

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References ( returns to text)

Bakke v. Regents of the University of California, 18 Cal. 3d 34, 39 (1976).
Id. at 39.
Id. at 39.
Id. at 39.
Id. at 39.
Id. at 39.
Id. at 39.
Id. at 39.
Id. at 64.
Id. at 64.
Id. at 64.
Regents of the University of California v. Bakke, 438 U.S. 265, 281 (1978); and Appellate Brief for Petitioner at 1, Regents of the University of California v. Bakke, No. (No. 76-811) (S. Ct. June 7, 1977), 1977 WL 189474.
Regents of the University of California v. Bakke, 438 U.S. 265, 281 (1978).
Id. at 281.
Regents of the University of California v. Bakke, 438 U.S. 265, 409-410 (1978) (Justice Stevens: “The order did not include any broad prohibition against any use of race in the admissions process; its terms were clearly limited to the University’s consideration of Bakke’s application.”).
Appellate Brief for Petitioner at 1, Regents of the University of California v. Bakke, No. (No. 76-811) (S. Ct. June 7, 1977), 1977 WL 189474.
Appellate Brief for Petitioner at 1, Regents of the University of California v. Bakke, No. (No. 76-811) (S. Ct. June 7, 1977), 1977 WL 189474 (Question presented: When only a small fraction of thousands of applicants can be admitted, does the Equal Protection Clause forbid a state university professional school from voluntarily seeking to counteract effects of generations of pervasive discrimination against discrete and insular minorities by establishing a limited special admissions program that increases opportunities for well-qualified members of such racial and ethnic minorities?”).
Regents of the University of California v. Bakke, 438 U.S. 265, 408-409 (1978) (Justice Stevens: “It is always important at the outset to focus precisely on the controversy before the Court. It is particularly important to do so in this case because correct identification of the issues will determine whether it is necessary or appropriate to express any opinion about the legal status of any admissions program other than petitioner’s. This is not a class action. The controversy is between two specific litigants. Allan Bakke challenged petitioner’s special admissions program, claiming that it denied him a place in medical school because of his race in violation of the Federal and California Constitutions and of Title VI of the Civil Rights Act of 1964, 42 U. S. C. § 2000d et seq. The California Supreme Court upheld his challenge and ordered him admitted. If the state court was correct in its view that the University’s special program was illegal, and that Bakke was therefore unlawfully excluded from the Medical School because of his race, we should affirm its judgment, regardless of our views about the legality of admissions programs that are not now before the Court.“); and id. at 410-411 (Justice Stevens: “The California Supreme Court, in a holding that is not challenged, ruled that the trial court incorrectly placed the burden on Bakke of showing that he would have been admitted in the absence of discrimination. The University then conceded ‘that it [could] not meet the burden of proving that the special admissions program did not result in Mr. Bakke’s failure to be admitted.’ Accordingly, the California Supreme Court directed the trial court to enter judgment ordering Bakke’s admission. Since that order superseded paragraph 2 of the trial court’s judgment, there is no outstanding injunction forbidding any consideration of racial criteria in processing applications. It is therefore perfectly clear that the question whether race can ever be used as a factor in an admissions decision is not an issue in this case, and that discussion of that issue is inappropriate.“).
Flast v. Cohen, 392 U.S. 83, 95 (1968) (“Thus, no justiciable controversy is presented when the parties seek adjudication of only a political question, when the parties are asking for an advisory opinion, when the question sought to be adjudicated has been mooted by subsequent developments, and when there is no standing to maintain the action.”). See John G. Roberts, Jr., Article III Limits On Statutory Standing, 42, Duke L.J. 1220, 1221(“Standing is thus properly regarded as a doctrine of judicial self-restraint.”); and 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.’”).
Bakke v. Regents of the University of California, 18 Cal. 3d 34, 64 (1976) (“However, on appeal the University has conceded that it cannot meet the burden of proving that the special admission program did not result in Bakke’s exclusion. Therefore, he is entitled to an order that he be admitted to the University. The judgment is affirmed insofar as it determines that the special admission program is invalid; the judgment is reversed insofar as it denies Bakke an injunction ordering that he be admitted to the University, and the trial court is directed to enter judgment ordering Bakke to be admitted. Bakke shall recover his costs on these appeals.”). See John G. Roberts, Jr., Article III Limits On Statutory Standing, 42, Duke L.J. 1220, 1221 (“Standing is thus properly regarded as a doctrine of judicial self-restraint.”); and 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).
Flast v. Cohen, 392 U.S. 83, 95 (1968) (“Thus, no justiciable controversy is presented when the parties seek adjudication of only a political question, when the parties are asking for an advisory opinion, when the question sought to be adjudicated has been mooted by subsequent developments, and when there is no standing to maintain the action.”). See Regents of the University of California v. Bakke, 438 U.S. 265, 408-409 (1978) (Justice Stevens: “It is always important at the outset to focus precisely on the controversy before the Court. It is particularly important to do so in this case because correct identification of the issues will determine whether it is necessary or appropriate to express any opinion about the legal status of any admissions program other than petitioner’s. This is not a class action. The controversy is between two specific litigants. Allan Bakke challenged petitioner’s special admissions program, claiming that it denied him a place in medical school because of his race in violation of the Federal and California Constitutions and of Title VI of the Civil Rights Act of 1964, 42 U. S. C. § 2000d et seq. The California Supreme Court upheld his challenge and ordered him admitted. If the state court was correct in its view that the University’s special program was illegal, and that Bakke was therefore unlawfully excluded from the Medical School because of his race, we should affirm its judgment, regardless of our views about the legality of admissions programs that are not now before the Court.“).
Warth v. Seldin, 422 U.S. 490, 508 (1975).
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“).
See, e.g., Ricci v. DeStefano, 129 S. Ct. 2658, 2665 (2009) (“The charter establishes a merit system. That system requires the City to fill vacancies in the classified civil-service ranks with the most qualified individuals, as determined by job-related examinations. After each examination, the New Haven Civil Service Board (CSB) certifies a ranked list of applicants who passed the test. Under the charter’s “rule of three,” the relevant hiring authority must fill each vacancy by choosing one candidate from the top three scorers on the list.); and Ricci v. DeStefano, 129 S. Ct. 2658, 2665 (2009) (“The City’s contract with the New Haven firefighters’ union specifies additional requirements for the promotion process. Under the contract, applicants for lieutenant and captain positions were to be screened using written and oral examinations, with the written exam accounting for 60 percent and the oral exam 40 percent of an applicant’s total score. To sit for the examinations, candidates for lieutenant needed 30 months’ experience in the Department, a high-school diploma, and certain vocational training courses. Candidates for captain needed one year’s service as a lieutenant in the Department, a high-school diploma, and certain vocational training courses.”).
The United States Constitution Online, http://www.usconstitution.net/const.html (Fourteenth Amendment, Article I: “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.”). See 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.”).
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.”).
Regents of the University of California v. Bakke, 438 U.S. 265, 276 (1978).
Id. at 277.
See, e.g., Ricci v. DeStefano, 129 S. Ct. 2658, 2665 (2009) (“The charter establishes a merit system. That system requires the City to fill vacancies in the classified civil-service ranks with the most qualified individuals, as determined by job-related examinations. After each examination, the New Haven Civil Service Board (CSB) certifies a ranked list of applicants who passed the test. Under the charter’s “rule of three,” the relevant hiring authority must fill each vacancy by choosing one candidate from the top three scorers on the list.); and Ricci v. DeStefano, 129 S. Ct. 2658, 2665 (2009) (“The City’s contract with the New Haven firefighters’ union specifies additional requirements for the promotion process. Under the contract, applicants for lieutenant and captain positions were to be screened using written and oral examinations, with the written exam accounting for 60 percent and the oral exam 40 percent of an applicant’s total score. To sit for the examinations, candidates for lieutenant needed 30 months’ experience in the Department, a high-school diploma, and certain vocational training courses. Candidates for captain needed one year’s service as a lieutenant in the Department, a high-school diploma, and certain vocational training courses.”).
See Scalia: Constitution does not protect women against discrimination, http://voices.washingtonpost.com/44/2011/01/scalia-constitution-does-not-p.html?referrer=emaillinkpg (“If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don’t like the death penalty anymore, that’s fine. You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it. Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.”).
See, e.g., 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.”). Compare Regents of the University of California v. Bakke, 438 U.S. 265, 278 n.10 (1978) (Art. I, § 21, of the California Constitution: “No special privileges or immunities shall ever be granted which may not be altered, revoked, or repealed by the Legislature; nor shall any citizen, or class of citizens, be granted privileges or immunities which, upon the same terms, shall not be granted to all citizens.”) with Coalition for Equity v. Wilson, 122 F.3d 692, 697 (9^th Cir.)(1997) (“The initiative, which appeared on the ballot as Proposition 209, provides in relevant part that ‘[t]he state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.’ Cal. Const. art. 1, §31(a). The California Legislative Analyst’s Office portrayed Proposition 209 to the voters as a measure that would eliminate public race-based and gender-based affirmative action programs.”).
See Marbury v. Madison, 5 U.S. 137, 166 (1803) (“But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured, has a right to resort to the laws of his country for a remedy.”); and 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.’”). See, e.g., 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.”).
Regents of the University of California v. Bakke, 438 U.S. 265, 287 (1978). Appellate Brief for Petitioner at 1, Regents of the University of California v. Bakke, No. (No. 76-811) (S. Ct. June 7, 1977), 1977 WL 189474; and Respondent’s Appellate Brief at 1, Regents of the University of California v. Bakke, No. (No. 76-811) (S. Ct. June 7, 1977), 1977 WL 189476.
Regents of the University of California v. Bakke, 438 U.S. 265, 287 (1978). But see Antonin Scalia and Bryan A. Garner, Making Your Case 3-4 (2008) (“But in many courts (including all federal courts), absence of subject-matter jurisdiction, unlike most other defects, cannot be waived. And in some of those courts (including all federal courts), even if no party raises the issue, the court itself can and must notice it.“).
See, e.g., Defunis v. Odegaard, 416 U.S. 312 (1974). See, e.g., Johnson v. Committee on Examination, 407 U.S. 915 (1972); Johnson v. Wilmer, 415 U.S. 1001 (1974); Respondent’s Appellate Brief at 4, Johnson v. Wilmer, (No. 73-976) (S. Ct. January 17, 1974), 1974 WL 185947 (“Request for three judge federal court considered and denied. Complaint dismissed for failure to state a claim.”); and Defunis v. Odegaard, 416 U.S. 312, 341 n. 22 (1974) (“The District Court dismissed the action and the Court of Appeals affirmed, holding that the lower federal courts did not have jurisdiction to review the decisions of the Arizona Supreme Court on admissions to the state Bar.”).
Bakke, 438 U.S. 265, 287-288 (1978).
Id. at 287-288.
Id. at 290.
Id. at 290.
Id. at 290.

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

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