The constitutionality of affirmative action in America's public higher education institutions ("HEIs") gained prominence in the late 1970s with the Supreme Court's decision in Regents of the University of California v. Bakke. The Bakke decision was less than clear, but it provided the framework in which HEls formulated their admission policies regarding the use of race. Nevertheless, the law regarding affirmative action remained unsettled, and the circuits remained split.
Brooks H. Spears, Casenote, "If the Plaintiffs are Right, Grutter is Wrong": Why Fisher v. University of Texas Presents an Opportunity for the Supreme Court to Overturn a Flawed Decision, 46 U. Rich. L. Rev. 1113 (2012).