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 Missouri ex rel. Gaines v. Canada, 305 U. S. 337 (1938), Lloyd Gaines was a citizen of Missouri²⁵⁸ who had a Fourteenth Amendment claim because he was refused admission upon the ground that it was “contrary to the constitution, laws and public policy of the State [of Missouri] to admit a negro as a student in the University of Missouri.”²⁵⁹ Further, the State of Missouri denied Lloyd Gaines the personal right of being “furnished within its borders facilities for legal education substantially equal to those which the State there afforded for persons of the white race, whether or not other negroes sought the same opportunity.”²⁶⁰ The Missouri Constitution or the Missouri laws are sufficient evidence of state action because both are enacted by the Missouri Legislature²⁶¹ and apply to all citizens, including faculties and administrations of state universities, of the State of Missouri. Because the laws enacted by the Missouri Legislature are binding on all citizens of the State of Missouri, a Missouri citizen has standing if that citizen is “the object of the law’s requirement or prohibition.”²⁶² Further, a Missouri citizen can obtain federal relief from such laws if that citizen can demonstrate that he is entitled to federal relief because his personal rights were taken away by state laws that violate the US Constitution.²⁶³

In Sipuel v. Board of Regents of Univ. of Okla., 332 U.S. 631 (1948) and in McLaurin v. Oklahoma State Regents for Higher Ed., 339 U.S. 637 (1950), Ada Lois Sipuel²⁶⁴ and G.W. McLaurin²⁶⁵ were state residents of Oklahoma²⁶⁶ who had Fourteenth Amendment claims because both were refused admission into the University of Oklahoma because of a Oklahoma statute passed in 1941 which made it “a misdemeanor to maintain or operate, teach or attend a school at which both whites and Negroes are enrolled or taught.”²⁶⁷ Further, the State of Oklahoma denied both of them personal rights: Ada Lois Sipuel was denied the personal right to secure a legal education afforded by a state institution²⁶⁸ and G.W. McLaurin was denied the personal right to receive the same treatment at the hands of the state as students of other races.²⁶⁹ Just as in Missouri ex rel. Gaines, the Oklahoma laws are sufficient evidence of state action because it was enacted by the Oklahoma Legislature²⁷⁰ and it applies to all citizens of the State of Oklahoma. Because the laws of the Oklahoma Legislature are binding on all citizens of the State of Oklahoma, an Oklahoma citizen has standing if that citizen is “the object of the law’s requirement or prohibition.”²⁷¹ Further, an Oklahoma citizen can obtain relief from such laws if that citizen can demonstrate that she is entitled to federal relief because her personal rights were taken away by state laws that violate the US Constitution.²⁷²

In Sweatt v. Painter et al, 339 U.S. 629 (1950), Heman Marion Sweatt was a state resident of Texas²⁷³ who had a Fourteenth Amendment claim because the University has been restricted to white students, in accordance with the Texas Constitution and Texas State law.²⁷⁴ Further, the State of Texas denied Heman Marion Sweatt his full constitutional right to a legal education equivalent to that offered by the State to students of other races.²⁷⁵ Just as in Missouri ex rel. Gaines, Sipuel, and McLaurin, the Texas laws are sufficient evidence of state action because it was enacted by the Texas Legislature²⁷⁶ and it applies to all citizens of the State of Texas. Because the laws of the Texas Legislature are binding on all citizens of the State of Texas, a Texas citizen has standing if that citizen is “the object of the law’s requirement or prohibition.”²⁷⁷ Further, a Texas citizen can only obtain federal relief from such laws if that citizen can demonstrate that he is entitled to federal relief because his personal rights were taken away by state laws that violate the US Constitution.²⁷⁸

Unlike in Missouri ex rel. Gaines, Sipuel, McLaurin, and Sweatt, there was no evidence presented in Bakke that the California Legislature passed legislation that prevented white students from gaining admission into California State Medical Schools.²⁷⁹ Evidence of state action by the California Legislature is legally significant in Bakke because without such evidence, there is a separation of powers issue²⁸⁰ and the Equal Protection Clause does not apply.²⁸¹ The Fourteenth Amendment was intended to guard against state action²⁸² and not against a specific school’s actions.²⁸³

Unlike in Missouri ex rel. Gaines, Sipuel, McLaurin, and Sweatt, there was no evidence presented that all California State Medical Schools would reject Allan Bakke solely because he was white.²⁸⁴ In 1973 and 1974, the State of California had five medical schools Allan Bakke could have applied to: 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. ²⁸⁵ Bakke only reflects that Allan Bakke applied to one of the five possible medical schools in California; based on Allan Bakke’s benchmark score,²⁸⁶ it is more likely than not that if he had applied to any of the other four medical schools, at least one of them would have admitted him. Therefore, there was no evidence presented of a California state policy²⁸⁷ to discriminate against white students as a class.²⁸⁸ Evidence of state action through a California state policy is legally significant in Bakke because without such evidence, there is a separation of powers issue²⁸⁹ and the Equal Protection Clause does not apply.²⁹⁰ The Fourteenth Amendment was intended to guard against state action²⁹¹ and not against a specific school’s actions.²⁹²

Last but not least, because there was no evidence presented that the California Legislature passed legislation that took away a white student’s right to secure a medical education afforded by a state institution nor was there any evidence of a policy in the State of California to not admit white students to medical school nor was there any evidence presented that the State of California created a legally protected right in regard to the benchmark scores,²⁹³ the only “personal right”²⁹⁴ that would have been taken away from Allan Bakke was a “personal right” to admission into Davis Medical School. The 14^th Amendment was not created to guard against a student’s personal right to admission into a specific school;²⁹⁵ the 39^th Congress never thought that that’s what it meant and nobody ever voted for that.²⁹⁶

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References ( returns to text)

Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 342 (1938).
Id. at 343-344 (“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.”).
Id. at 351.
See Luther v. Borden, 48 US 1, 40 (1849) (“Judicial Power presupposes an established government capable of enacting laws and enforcing their execution, and of appointing judges to expound and administer them [the enacted laws]“).
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.”).
Civil Rights Cases, 109 U.S. 3, 12-13 (1883).
Fisher, Ada Lois Sipuel, http://digital.library.okstate.edu/encyclopedia/entries/F/FI009.html.
McLaurin v. Oklahoma State Regents for Higher Ed., 339 U.S. 637, 640 (1950).
Fisher, Ada Lois Sipuel, http://digital.library.okstate.edu/encyclopedia/entries/F/FI009.html.; and McLaurin v. Oklahoma State Regents for Higher Ed., 339 U.S. 637, 638 (1950).
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.”).
Sipuel v. Board of Regents of the University of Oklahoma, 322 U.S. 631, 632 (1948) (“The petitioner is entitled to secure legal education afforded by a state institution”).
McLaurin v. Oklahoma State Regents for Higher Ed., 339 U.S. 637, 642 (1950) (“Appellant, having been admitted to a state-supported graduate school, must receive the same treatment at the hands of the state as students of other races”).
See Luther v. Borden, 48 US 1, 40 (1849) (“Judicial Power presupposes an established government capable of enacting laws and enforcing their execution, and of appointing judges to expound and administer them [the enacted laws]“).
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.”).
Civil Rights Cases, 109 U.S. 3, 12-13 (1883).
Sweatt, Heman Marion, http://www.tshaonline.org/handbook/online/articles/fsw23.
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″).
Sweatt v. Painter et al, 339 U.S. 629, 635 (1950) (“petitioner may claim his full constitutional right: legal education equivalent to that offered by the State to students of other races”).
See Luther v. Borden, 48 US 1, 40 (1849) (“Judicial Power presupposes an established government capable of enacting laws and enforcing their execution, and of appointing judges to expound and administer them [the enacted laws]).
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.”).
Civil Rights Cases, 109 U.S. 3, 12-13 (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.”).
Luther v. Borden, 48 U.S. 1, 40 (1849) (“Judicial power presupposes an established government capable of enacting laws and enforcing their execution, and of appointing judges to expound and administer them.”). See Antonin Scalia, The Doctrine of Standing As an Essential Element of the Separation of Powers, 17 Suffolk U. L. Rev. 881, 885 (“But legal injury is by definition no more than the violation of a legal right; and legal rights can be created by the legislature. “); 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.’”).
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.’”).
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.”).
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.’”).
But see Sweatt v. Painter et al, 339 U.S. 629, 631 (1950) (“At that time, there was no law school in Texas which admitted negroes”).
List of Medical Schools in the United States, http://en.wikipedia.org/wiki/List_of_medical_schools_in_the_United_States.
Regents of the University of California v. Bakke, 438 U.S. 265, 276 (1978).
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).
Luther v. Borden, 48 U.S. 1, 40 (1849) (“Judicial power presupposes an established government capable of enacting laws and enforcing their execution, and of appointing judges to expound and administer them.”). See Antonin Scalia, The Doctrine of Standing As an Essential Element of the Separation of Powers, 17 Suffolk U. L. Rev. 881, 885 (“But legal injury is by definition no more than the violation of a legal right; and legal rights can be created by the legislature. “); 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.’”).
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.’”).
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.”).
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.’”).
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“).
Shelley v. Kraemer, 334 U.S. 1, 22 (1948) (“The rights created by the first section of the Fourteenth Amendment are, by its terms, guaranteed to the individual. The rights established are personal rights.”); or McCabe v. Atchison, T. & SFR Co., 235 US 151, 161 (1914).
See Marbury v. Madison, 5 US 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.”); or Antonin Scalia, The Doctrine of Standing As an Essential Element of the Separation of Powers, 17 Suffolk U. L. Rev. 881, 885 (“But legal injury is by definition no more than the violation of a legal right; and legal rights can be created by the legislature“).
Scalia: Constitution does not protect women against discrimination, http://voices.washingtonpost.com/44/2011/01/scalia-constitution-does-not-p.html?referrer=emaillinkpg.

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

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