Bakke and beyond: Cooperation and Power Sharing in the Federal System

Abstract

In the spring of 1974, Alan Bakke was denied admission to the University of California at Davis Medical School for the fourth time. He promptly brought suit in the California state court system, alleging that his rejection constituted a violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, a similar provision in the California Constitution and Title VI of the Civil Rights Act of 1964. A trial court upheld Mr. Bakke's claim, but called for proof that he would have been admitted had the Davis affirmative action program not been in effect. At the appellate level, the Superior Court of California held, without reference to the state constitution or federal statute, that the Davis program was invalid under the Fourteenth Amendment. The effect of this decision was to shift the burden of proof from Bakke to the university. To deny admission to Bakke, the university now had to establish that he would not have been admitted had there been no affirmative action plan. As the university could not so demonstrate, the California Supreme Court, the next level of appeal,