Fisher v. University of Texas

• Published date: 01 March 2014
• Author: Norma M. Riccucci
• DOI: 10.1177/0095399713515877
• Date: 01 March 2014
• Subject Matter: Articles

Administration & Society

2014, Vol. 46(2) 169 –180

© The Author(s) 2013

DOI: 10.1177/0095399713515877

aas.sagepub.com

Article

Fisher v. University

of Texas: A Call

for Democratic

Constitutionalism in

Promoting Diversity

Norma M. Riccucci1

Abstract

The eminent scholar John Rohr in one of his many treatises argued that

as we progress through time, the U.S. Supreme Court becomes more

socially adaptable in terms of its interpretation of race issues under the U.S.

Constitution. He also pointed out that the courts should be working with

policy makers responding to the demands of the day, to promote vital goals

such as diversity in higher education. This article illustrates the evolution

of affirmative action qua diversity over time, and shows that through the

progression of time, the High Court’s decisions on diversity or affirmative

action programs have become more enlightened, certainly reflecting the

values of policy makers as well as societal norms. In 2013, the Court agreed

to hear an appeal to Fifth Circuit’s ruling in Fisher v. University of Texas at

Austin, which upheld the use of affirmative action in accordance with Grutter

as well as Bakke. If the Court had overturned these decisions, it would

have single-handedly destroyed decades of progress made around diversity

in university settings, and concomitantly disdainfully rejected the values of

the American people. Instead, the Court sent Fisher back to the lower court,

instructing it to apply strict scrutiny to the University of Texas’ claim that

its program was narrowly tailored, thereby leaving open the possibility that

affirmative action, as framed by Grutter and Bakke, will not survive.

1Rutgers University, Newark, NJ, USA

Corresponding Author:

Norma M. Riccucci, School of Public Affairs and Administration, Rutgers University, 111

Washington Street, CPS 337, Newark, NJ 07102, USA.

Email: riccucci@rutgers.edu

515877AASXXX10.1177/0095399713515877Administration & SocietyRiccucci

research-article2013