Garza retires from 5th District appeals court; Silsbee cheerleader and UT admissions among notable cases

By Marilyn Tennissen | Jan 12, 2015

After serving for more than two decades, Senior Judge Emilio M. Garza has retired from the U.S. Court of Appeals for the Fifth Circuit.

According to the court's website, Garza's retirement became effective Jan. 5.

Garza, 67, was nominated to the Fifth Circuit by President George H.W. Bush in 1991 to the seat vacated by Thomas Morrow Reavley.

The San Antonio native graduated from the University of Notre Dame and served as a captain in the U.S. Marine Corps from 1970 to 1973.

After the military, Garza received a doctor of jurisprudence degree from the University of Texas School of Law in 1976.

He worked in a private law practice in San Antonio for less than 10 years before he became a judge in Bexar County, taking the bench of the 225th District Court in 1987. He held that position until his appointment to federal court by President Ronald Reagan.

In 1988, Garza was nominated by Reagan to the bench of U.S. District Court for the Western District of Texas, a seat vacated by William S. Sessions in 1988.

He served on the district court until his appointment to the Fifth Circuit court, located in New Orleans and serving .

In 1991, Garza was considered as a potential nominee to the U.S. Supreme Court after the retirement of Thurgood Marshall, but the seat went to Clarence Thomas.

One of Garza's notable cases was a suit from Southeast Texas in 2010 -- Doe v Silsbee Independent School District.

The plaintiff, known only as H.S., was a high school cheerleader who claimed she had been sexually assaulted at a party. One of her alleged assailants was on the basketball team, and H.S. refused to cheer for him during a game. When she was kicked off the cheerleading squad, she sued the school district. She claimed her First Amendment right to free speech had been violated.

The school district sought a dismissal, which was granted by U.S. District Judge Thad Heartfield in Beaumont. The plaintiff appealed to the Fifth District, but Judge Garza, Judge Edith Brown Clement and Judge Priscilla Owen affirmed the dismissal. H.S. was ordered to pay the school $45,000 in legal fees for filing a frivolous lawsuit.

“In her capacity as cheerleader, H.S. served as a mouthpiece through which SISD could disseminate speech – namely, support for its athletic teams,” the Fifth Circuit's opinion states. “Insofar as the First Amendment does not require schools to promote particular student speech, SISD had no duty to promote H.S.’s message by allowing her to cheer or not cheer as she saw fit. Moreover, this act constituted substantial interference with the work of the school because, as a cheerleader, H.S. was at the basketball game for the purpose of cheering, a position she undertook voluntarily.”

And as the Southeast Texas Record reported in November, Garza dissented from the majority in a case over the use of affirmative action in the admissions process at the University of Texas (Fisher v University of Texas). A white student claimed she was denied admission, but the district court found the university had no liability to the student. She appealed to the Fifth Circuit, which affirmed the district court. But Garza dissented, saying the court failed to apply the strict scrutiny standards to the review of the admissions policy.


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