Affirmative action in education was increasingly contested by the 1970s, when the US Supreme Court raised the requirement of standing: the right to sue. A plaintiff had to establish “injury in fact” within Article III of the Constitution and that the laws in question were intended to protect him. The burden of proof tended to discourage minorities from suing. However, if a vital public interest interfaced the plaintiff's suit for relief, the Court sometimes made an exception.

The University of California–Davis Medical School twice rejected Allan Bakke, a white applicant. He claimed the school wrongfully denied him admission “to make room for minority applicants with inferior records of academic achievement” (Education Commission, 2002, p. 2) using its regular admissions process along with its minority quota program. The university argued that he lacked standing and should exhaust all administrative remedies before pursuing a lawsuit. But the Court ruled in his favor. It struck down the use of racial quotas in admissions as a violation of the 1964 Civil Rights Act, “but allowed race to be considered as one factor among several for the specific purpose of achieving student body diversity” (Education Commission, 2002, p. 3). Bakke thus produced a series of conflicting lower-court orders that weakened affirmative-action policies in education and employment.