5th Circuit Court

The 5th U.S. Circuit Court of Appeals declined Abigail Fisher’s request Wednesday for a full panel of judges to hear her affirmative action case against the University.

Of the court’s 15 judges, five voted in favor of rehearing the case while 10 voted against it, according to the official decision released by the 5th Circuit.  

Fisher, a rejected UT applicant, petitioned for an en banc hearing in July following a 2-1 decision from a three-judge 5th Circuit Court panel, which ruled in favor of the University’s race-conscious admissions process. This is the second time the court has denied Fisher’s petition for an
en banc.

“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,”  said Edward Blum, director of the Project on Fair Representation, in a statement. The Project on Fair Representation has provided funding for Fisher’s case.

Fisher, a Sugar Land resident, sued the University in 2008 when she was denied acceptance to the University because her grades were not high enough to guarantee her admission under the top-10 percent rule. Her defense argued UT’s admissions policy violates the Equal Protection Clause of the 14th Amendment since minority students were accepted with lower grades than hers. 

In 2009, a district court upheld the University’s admission policy as constitutional, a decision that was affirmed by a three-judge 5th Circuit Court panel
in 2011. 

The case eventually reached the Supreme Court in 2012, but it was sent back to the 5th Circuit Court in 2013. The Supreme Court decided the case did not meet strict scrutiny, meaning the lower courts still needed to determine the actual constitutionality of the University’s race-conscious policy.

Even after the court’s ruling Wednesday, Blum said Fisher’s case would be appealed back to the Supreme Court.

“The justices had to correct the 5th Circuit’s errors the first time Abby Fisher took her case to the high court, and we look forward to making our arguments to them once again,” Blum said.

President William Powers Jr. said the University is pleased with the appeals court’s ruling.

“The University of Texas at Austin is committed to maintaining a student body that provides the educational benefits of diversity while respecting the rights of all students,” Powers said in a statement. “The exchange of ideas and cultural richness that occurs when students from diverse backgrounds come together on our campus prepares all our students for life in a global society.”

Only seven or eight abortion clinics in Texas will remain open after Texas was given the authority to enforce House Bill 2.

The 5th U.S. Circuit Court of Appeals ruled Thursday that two provisions of HB2 can be enforced as the court continues to review the constitutionality of the law. 

One of the provisions in question requires abortion clinics to have hospital-grade surgical and ambulatory services was originally deemed unconstitutional by U.S. District Judge Lee Yeakel on Aug. 29. The other provision the 5th Circuit Court is reviewing requires doctors at abortion clinics have admittance privileges within 30 miles of their clinics. The rest of the provisions in the law have forced many abortion clinics to shut down over the past year. 

The court called Yeakel’s decision to include all of Texas in his ruling “inappropriate.”

“Though Plaintiffs sought only as-applied relief from the admitting privileges requirement, limited to two abortion clinics — one in El Paso and one in McAllen — the district court, in its final judgment, appears to have facially invalidated the admitting privileges requirement throughout Texas,” the decision reads.

The decision stated that the plaintiffs have not proven the provisions of HB2 cause “undue burden” on women seeking reproductive services. Alexander Parker, communications director of College Republicans, said in an email that he agrees with the decision.

“The opinion of the panel articulated the important balance between making sure this law doesn’t impose too undue a burden, and the very real issue of ensuring that abortion clinics are a safe environment on par with other medical institutions,” Parker said.

Katie Adams, University Democrats communications director, said in an email that the organization was “saddened” by the ruling.

“For far too long, Texas has had a climate of ignoring women’s autonomy for the sake of purely partisan politics; this is merely the newest iteration of the Republican war on women in Texas,” Adams said. “Out-of-touch conservative lawmakers, who would put blind ideology over the health of their constituents, need to be voted out of office in November.”

Lauren Bean, spokeswoman for the Texas Attorney General’s Office, which defended the state law before the court, praised the decision.

“This decision is a vindication of the careful deliberation by the Texas Legislature to craft a law to protect the health and safety of Texas women,” Bean said.

Nancy Northup, president and CEO of the Center for Reproductive Rights, an organization that challenged the law on behalf of the state’s abortion clinics, said in a statement that the ruling was a pretense for politicians to say they were protecting women.

“It is an endorsement of politicians’ disingenuous tactic of undermining women’s safety under the false pretext of protecting it and of their unconstitutional intrusions into the personal, private decisions of every woman and family facing an unintended pregnancy,” Northrup said.

Correction: Due an editing error, this story incorrectly stated the appeals court ruled the two HB2 provisions constitutional. The appeals court will continue to review the constitutionality of the law.

Photo Credit: Charlie Pearce | Daily Texan Staff

A full appeals court panel may not hear the Fisher v. UT case, according to two law professors at the University.  

In late July, denied University applicant Abigail Fisher asked the U.S. Court of Appeals for the 5th Circuit panel to hear her case one more time.

Her request followed a 2-1 decision from the three-judge 5th Circuit Court panel on July 15, which ruled again in favor of the University’s race-conscious admissions process.

Law professor Joseph Fishkin said, although very few petitions are accepted in circuit courts nationally, Fisher may have a small chance since the 5th Circuit Court has been known to occasionally undertake them. 

However, Fishkin said it is hard to determine the likelihood of Fisher receiving an en banc — meaning a full panel of judges would have to hear her case — since the 5th Circuit is a fairly conservative court, and the last ruling on the case came from a divided panel of judges.

“If they do decide to do it, then that means the whole 5th Circuit gets the case,” Fishkin said. “I’m not sure how much appetite the judges will have to extend it another round.”

Law professor David Gonzalez said en banc reviews are more likely in cases that have not already gone to the Supreme Court.

“It’s hard for me to think they would want to rehear a case,” Gonzalez said.

Edward Blum, director of the Project on Fair Representation, an organization that has provided funding for Fisher’s case, said in an email that Fisher has “high hopes” that the 5th Circuit Court will hear her appeal and rule in her favor. 

Fisher, a Sugar Land resident, sued the University in 2008 when she was denied acceptance to the University because her grades were not high enough to guarantee her admission under the top-10 percent rule. Her defense argued UT’s admissions policy violates the Equal Protection Clause of the 14th Amendment since minority students were accepted with lower grades than hers. 

In 2009, a district court upheld the University’s admission policy as constitutional, a decision that was affirmed by a three-judge 5th Circuit Court panel in 2011. The 5th Circuit Court also denied Fisher’s request for an en banc.

The case eventually reached the Supreme Court in 2012 but was sent back to the 5th Circuit Court in 2013 after it was decided the case did not meet strict scrutiny, meaning the lower courts still needed to determine the actual constitutionality of the University’s race-conscious policy.

“The Supreme Court told the 5th Circuit that it erred in its earlier opinion concerning the proper standard for using race in admissions,” Blum said. “That is a clear victory for [Fisher]. UT was ordered to pay the costs of her appeal to SCOTUS [Supreme Court of the United States].” 

If the 5th Circuit does not grant Fisher’s request for an en banc review, Blum said Fisher would then again attempt to appeal her case back to the Supreme Court.

Photo Credit: Charlie Pearce | Daily Texan Staff

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.