Fifth Circuit Court

Hearings for Fisher v. University of Texas are scheduled to be given for the second time on Nov. 13 in the U.S. Fifth Circuit Court of Appeals.

The case was initiated by Abigail Fisher, who sued UT in 2008 after she was denied admission into the University. Fisher, who has since graduated from Louisiana State University and currently lives in Austin, claimed the University violated her right to equal protection because its admissions policy considers race as a factor for students who do not automatically qualify under the Top 10 Percent Law.

Judges Carolyn King, Patrick Higginbotham and Emilio Garza will hear oral arguments from both sides. The judges heard the case when it last reached the Fifth Circuit Court in 2009 and the appeals court originally determined the University could use race as a factor in its admissions policy.

After hearing the case in October 2012, the Supreme Court ruled in June that the Fifth Circuit Court did not apply strict scrutiny to UT’s admissions policy when it ruled in the University’s favor. In the 7-1 decision to relegate the case to a lower court, Justice Ruth Bader Ginsburg provided the only dissent.

Applying strict scrutiny will require the court to look into whether the University’s diversity goals can be achieved without using race as a factor in admission decisions, according to Gregory Vincent, UT law professor and vice president for diversity and community engagement. 

“[UT has] to demonstrate that there are no other race-neutral ways to meet that [goal],” Vincent said. “The University feels that it met the strict scrutiny standard.” 

UT law professor Joseph Fishkin said the Supreme Court decision means the appeals court will have to more thoroughly analyze UT’s admissions policy.

“The Fifth Circuit thought it was applying strict scrutiny,” Fishkin said. “The Supreme Court basically concluded that the Fifth Circuit had been too deferential to UT about the question of whether this kind of program was really needed.” 

Fishkin added that the Fifth Circuit Court might send the case further down to the district court so that UT’s admission policy can undergo even further analysis before the Fifth Circuit makes another ruling.

Vincent said the case eventually could reach the Supreme Court a second time.

“Once the Fifth Circuit has determined those questions, I am sure there will be an appeal in whatever they decide,” Vincent said. “I am sure that the Supreme Court will have to consider that again.”

According to Vincent, the use of race in admissions has long been a point of debate in federal courts. 

In the 1978 Regents of the University of California v. Bakke case, the Supreme Court decided institutions of higher education could consider race in their admission decisions. In 1996, the Fifth Circuit ruled in the Hopwood v. Texas case that Texas universities could not use race in their admissions policy. The Hopwood ruling was overturned by a 2003 Supreme Court ruling in the Grutter v. Bollinger case. UT has since used race as a factor in its admissions policy.

In discussing the history of affirmative action cases, Vincent noted that race is not the only factor used by universities in admitting students.

“One of the things that we note from Bakke, as well as the Grutter decision, is that race is just one among many factors,” Vincent said.

According to UT spokesman Gary Susswein, law firm Latham & Watkins will again defend the University at the Fifth Circuit hearing, as it did before the Supreme Court. Texas Attorney General Greg Abbott defended the University when the case first reached the Fifth Circuit.

Edward Blum, director of the Project for Fair Representation, which has represented Fisher in the case, could not be reached for comment. 

Student Government president Horacio Villarreal said the Fisher case could impact the demographical make-up at universities.

“Not only is it a case that could potentially affect students across the nation, but it could change the diversity on our campus,” Villarreal said.