Abigail Fisher, a rejected undergraduate UT applicant, asked the full 5th Circuit Court of Appeals panel on Tuesday to rehear her case challenging the University’s holistic review admissions process, which considers the applicant’s race as a factor.
Fisher sued the University in 2008 for discriminating against her based on her race, claiming the admissions policy violated the 14th Amendment. In 2009, a District Court ruled in favor of UT. In 2011, a three-judge panel ruled that UT’s admissions policy is constitutional. After that decison, the 5th Circuit Court denied Fisher's request to rehear the case en banc, meaning all 15 judges would hear the case.
While Fisher has said she was willing to take the case back to the Supreme Court, she again requested on Tuesday the case be heard en banc.
The case reached the Supreme Court in 2012, but was sent back to the 5th Circuit Court in 2013. In a 7-1 decision, the Supreme Court determined the appeals court had failed to determine whether the University’s policies are narrowly tailored and necessary to achieve a “critical mass” of minority students.
On July 15, the same 5th Circuit Court three-judge panel that upheld UT’s policy in 2011 again ruled UT may continue using its holistic review admissions policy.
The petition Fisher filed on Tuesday argues that the three-judge panel failed to follow the Supreme Court’s mandate. Fisher argues the University did not clearly state its critical mass goal, and its policy is unnecessary because racial preferences have a trivial impact. The petition also argues that the panel disobeyed the Supreme Court's request for the appeals court not to give any deference to UT.
In November, attorneys for both Fisher and the University presented arguments to the appeals court. Representing the University, attorney Greg Garre said although UT does not use specific numbers to determine a critical mass, the University is still able to determine when this mass has been met.
The University uses race as part of an admissions process that determines 25 percent of the student body, and race is one of several factors that, combined, determine 4/7 of an applicant’s personal achievement index. That score is in turn combined with the applicant’s academic index score to determine if the applicant should be admitted to the University.