Since the Supreme Court first articulated its scope, affirmative action has constantly been criticized. By the 1990s, critics tried to pressure the Supreme Court into reversing its precedents both in employment and in higher education admission policies. Supporters of affirmative action openly worried that the Court would place severe restrictions on its implementation. For example, in 1997, the court was scheduled to hear an appeal involving a New Jersey schoolteacher who claimed she had suffered discrimination because of an improper affirmative action plan (Taxman v. Piscataway Township Bd. of Educ.). Weeks before oral arguments, supporters of affirmative action made the schoolteacher a financial settlement in return for her dismissing the case. They admitted that this was hardly a victory, but supporters pointed to troubling developments in the court’s stance and the possibility of defeat in the trial. 

Now, several states have already banned race- and ethnicity-based affirmative action or ended the practice at leading public universities. Eight states (California, Washington, Florida, Michigan, Nebraska, Arizona, New Hampshire, and Oklahoma) currently ban consideration of race or ethnicity in admissions at all public institutions, and two others (Georgia and Texas) have restrictions on the practice at leading public universities. Together, the eight states with complete bans educate 29 percent of all high school students in the United States.