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

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

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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 14^th Amendment was not created to give a state school an advisory opinion on the constitutionality of its admissions program;²⁰³ the 39^th 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

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References ( returns to text)

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, 281 (1978).
Id. at 409-410 (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.”).
See 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.”).
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.”); and Regents of the University of California v. Bakke, 438 U.S. 265, 409-411 (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. Because the University has since been ordered to admit Bakke, paragraph 2 of the trial court’s order no longer has any significance. 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.”).
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.“).
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?”); or Regents of the University of California v. Bakke, 438 U.S. 265, 281 (1978) (“they [parties] focused exclusively upon the validity of the special admissions program under the Equal Protection Clause.”).
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.”).
Scalia: Constitution does not protect women against discrimination, http://voices.washingtonpost.com/44/2011/01/scalia-constitution-does-not-p.html?referrer=emaillinkpg.
People ex. rel. Lynch v. Superior Court, 1 Cal. 3d 910, 912 (1970) (“The rendering of advisory opinions falls within neither the functions nor the jurisdiction of this court. (See Cal. Const., art. III, § 1; art. VI, §§ 10, 11; see also Gov. Code, § 68808; Hill v. Hill (1947) 79 Cal. App.2d 368 [180 P.2d 378].).”).
Bakke v. Regents of the University of California, 18 Cal. 3d 34, 39 (1976).
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.“); or Wilson & Wilson v. City Council of Redwood City, (2011) 191 Cal. App. 4^th 1559, 1573 (“The ripeness element of the doctrine of justiciability is intended to prevent courts from issuing purely advisory opinions.”).
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.”); and Bakke v. Regents of the University of California, 18 Cal. 3d 34, 38 (1976) (“He 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.”).
Wilson & Wilson v. City Council of Redwood City, (2011) 191 Cal. App. 4^th 1559, 1573 (“Justiciability thus ‘involves the intertwined criteria of ripeness and standing. A controversy is `ripe’ when it has reached, but has not passed, the point that the facts have sufficiently congealed to permit an intelligent and useful decision to be made.”); or People ex. rel. Lynch v. Superior Court, 1 Cal. 3d 910, 912 (1970) (“The rendering of advisory opinions falls within neither the functions nor the jurisdiction of this court. (See Cal. Const., art. III, § 1; art. VI, §§ 10, 11; see also Gov. Code, § 68808; Hill v. Hill (1947) 79 Cal. App.2d 368 [180 P.2d 378].).”). See Golden v. Zwickler, 394 U.S. 103, 108 (1969) (“The District Court erred in holding that Zwickler was entitled to declaratory relief if the elements essential to that relief existed ‘[w]hen this action was initiated.’ The proper inquiry was whether a ‘controversy’ requisite to relief under the Declaratory Judgment Act existed at the time of the hearing on the remand.”).
Regents of the University of California v. Bakke, 438 U.S. 265, 287 (1978); or 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.
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.”).
Regents of the University of California v. Bakke, 438 U.S. 265, 281 (1978) (“they [parties] focused exclusively upon the validity of the special admissions program under the Equal Protection Clause.”).
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.”).
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.”); or 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.”).
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).
Bakke v. Regents of the University of California, 18 Cal. 3d 34 (1976); or Regents of the University of California v. Bakke, 438 U.S. 265 (1978).
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.”).
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). See also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1953 (2009) (“Though Twombly determined the sufficiency of a complaint sounding in antitrust, the decision was based on our interpretation and application of Rule 8. That Rule in turn governs the pleading standard ‘in all civil actions and proceedings in the United States district courts.’ Our decision in Twombly expounded the pleading standard for ‘all civil actions,’ and it applies to antitrust and discrimination suits alike.”).
Bakke v. Regents of the University of California, 18 Cal. 3d 34, 38 (1976).

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

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