5th Circuit won't rehear UT affirmative action case

By Marilyn Tennissen | Nov 13, 2014

A federal appeals court has decided not to rehear an affirmative action case against the University of Texas, despite a request to do so from the U.S. Supreme Court.

Plaintiff Abigail Fisher, a white woman, sued the University of Texas at Austin, claiming she was denied admission in the fall of 2008 because of the university’s affirmative action program. 

Fisher alleged UT’s admissions policies discriminated against her based on race in violation of her right to equal protection under the 14th Amendment and federal civil rights statutes. She sought damages and injunctive relief.

The district court found no liability and granted summary judgment to the university.

The U.S. Court of Appeals for the Fifth Circuit also ruled in favor of the school, so Fisher appealed to the U.S. Supreme Court.

In a 7-1 vote, Justice Anthony Kennedy wrote that the Fifth Circuit did not hold the university to the stricter scrutiny standards that had been established in a previous case, Grutter v Bollinger.

The high court asked the Fifth Circuit to re-examine the case.

In July, a three-member panel of appellate judges reaffirmed its support of the university’s admissions policy even under the stricter standards. Their 2-1 ruling said banning the admissions program would hurt the diversity of the UT student population.

Fisher wanted the case heard by the full court of appeals, not just a panel, but the Fifth Circuit denied her request on Nov. 12. Five judges voted in favor of rehearing, but 10 justices were against hearing the case again.

“Abby Fisher and her family are disappointed with the court’s denial for a rehearing, but remember that they have been in this posture before,” wrote Edward Blum, president of the Project on Fair Representation, which has been serving as counsel for Fisher.

“This case will be appealed back to the US Supreme Court,” Blum wrote in an email to the Southeast Texas Record.

Justice Emilio Garza wrote in the dissent that the appeals court was told not to “defer to the University’s claim that its use of racial classifications in its admission process is narrowly tailored to its stated goal.”

“Clearly the panel majority dutifully bows to Fisher’s requirements, but then fails to conduct the strict scrutiny analysis it requires,” Garza wrote.

The university fails to clearly define its end goal, he wrote, which eliminates the Fifth Circuit’s chance to conduct the most rigid scrutiny of its race-conscious admissions program.

“The University must prove that the means chosen by the University to attain diversity are narrowly tailored to that goal,” he wrote.

Previous cases, including Grutter v Bollinger, relied on strict narrow tailoring, but the panel accepted a “serious good faith consideration” standard of review.

In addition, Texas has a state law that some say has already increased campus diversity.

The Top Ten Percent Law guarantees admission to Texas students in the top 10 percent of their high school class.

Court papers say UT receives four times the number of application to the number of students that it can enroll. It uses the Academic Index, which is based on a student’s class rank, standardized test scores and the extent to which the applicant exceeded UT’s required high school curriculum. The school then considers race and other factors for admissions.

Although Fisher is a Texas resident, she did not graduate in the top 10 percent of her class, so she did not qualify for automatic admission. Instead, she was considered under the holistic review program, which evaluates each applicant based on his or her achievements and experiences.

When she applied in the fall of 2008, she was one of 17,131 applicants for the remaining 1,216 seats open for Texas residents.

She wanted to enroll in the liberal arts program, but nearly all the seats were filled with Top Ten Percent students, so holistic review applicants were only eligible for summer freshman class.

“If she had been a minority the result would have been the same,” Garza wrote in his July dissent.

Blum concluded, “Judge Garza’s dissent from the three-judge panel was faithful to the Supreme Court’s instructions and we believe his opinion will eventually prevail.”



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