Fisher v. University of Texas A Call for Democratic Constitutionalism in Promoting Diversity

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.