BYU Education & Law Journal


Higher Education, Affirmative Action, Education Law


Since inception, affirmative action programs have been char-acterized as everything from institutional ‘reverse’ racism, to neces-sary plans that seek to ameliorate decades of racism. Data from the Pew Research Center indicates that a large majority of Americans support affirmative action. When asked whether “[a]ffirmative ac-tion programs designed to increase the number of black and minori-ty students on college campus are. . . good or bad,” 71% of respond-ents answered “good” in 2017.16 This is a significant increase in the percentage of Americans responding favorably to affirmative action programs. In comparison, when Americans were asked the same question in 2003, just 60% of respondents indicated they had a posi-tive opinion of affirmative action programs.17 This paper begins with an overview of historic affirmative action case law in Section I. Sec-tion II provides an overview of the Fisher v. University of Texas Su-preme Court decisions in 2013 and 2016, respectively. The impact of the Fisher litigation on Texas’ “Top 10% Plan” at issue in both cas-es is reviewed in Section III. In Section IV, the Students for Fair Ad-missions case is discussed. Section V provides analysis of the caselaw and the paper concludes with Section VI.