Court of Appeals

Photo Credit: Charlie Pearce | Daily Texan Staff

Editor's note: This is part of a Point/Counterpoint series regarding Fisher v. University of Texas. To read the opposing viewpoint, click here

Raise your hand if you’re tired of hearing about Fisher v. Texas! Although court cases are by no means a quick or breezy process, it seems that Abigail Fisher’s battle has been pinged around on quite a tumultuous journey through the appellate court pinball machine. After the case made its way to the Supreme Court last year, justices vacated a previous ruling and remanded it to lower courts. The Fifth Circuit Court of Appeals heard the case for a second time, the court sided with the University once again and Fisher’s party was still not satisfied. Petitioners have since sent two requests for the court to hear their case en banc (with a full panel of 15 judges) and been denied both times. So, guys, call me crazy, or maybe just a little impatient — but I think the Fifth Circuit has made its point loud and clear. Team Abigail, it’s time to find bigger Fish to fry.

It’s been eight years since the denied college freshman first called foul play, citing that the University’s use of race as a “plus-one” factor in the admissions process violated the Equal Protection Clause of the 14th Amendment. And since the first go-around in the appellate court failed to apply the proper test of strict scrutiny, it made its way to the high court, where justices deemed it be heard by the Fifth Circuit once again with the added scrutiny.

Although the appellate court sided with the University for a second time in July, Abigail’s disgruntled team of petitioners say the battle is far from over. “This case will be appealed back to the Supreme Court,” Edward Blum, director of the Project on Fair Representation, which has funded Fisher’s case, said in a statement after the appellate court declined, again, to hear her case en banc.

But why? Speculation that the high court would strike down affirmative action altogether has since been quieted. Precedent-setting history was not made during Fisher’s hearing, and even a different opinion from the appellate court would lack the widespread berth that many had hoped for. And the aforementioned chance that the Supreme Court would choose to hear the case again is highly, highly unlikely.

For the less constitutionally-conscious folks out there, race-conscious admissions plans must satisfy a compelling state interest, narrowly tailored to do this in the least restrictive way possible. The question is not whether the university has a compelling interest in diversity — the Supreme Court made that clear last year when it chose not to set new precedent — but whether the University of Texas at Austin itself has an explicit and narrowly tailored plan.

“To deny UT Austin its limited use of race in its search for holistic diversity would hobble the richness of the educational experience in contradiction of the plain teachings of Bakke and Grutter,” wrote Judge Patrick Higginbotham, writing for the Fifth Circuit majority. By seeking to establish a critical mass of students, the University is not discriminating against — or advocating for — certain students. It is merely ensuring a holistically diverse and widespread student body, and it is not doing so without regard to an extremely stringent standard.

Despite claims to the contrary, ensuring a diverse environment still has a place in today’s debate. Though Texas’ top 10 percent rule arguably provides a widespread population of students throughout the state, justices are wary that this law alone could satisfy a diverse critical mass. When used alone, this race-neutral alternative could lead to underperformance of students — or highly competitive students moving to lower-performing districts, taking easier classes in order to meet this guaranteed admissions requirement.

These repeated requests for an en banc hearing only belabor an answer the appellate system has made explicitly clear — Fisher’s day in court is done.

Deppisch is a government senior from League City. Follow Deppisch on Twitter @b_deppy.

Photo Credit: Charlie Pearce | Daily Texan Staff

Editor's note: This is part of a Point/Counterpoint series regarding Fisher v. University of Texas. To read the opposing viewpoint, click here. 

Fisher v. University of Texas, a 2013 case that began when Abigail Fisher, a rejected white applicant, sued the University in 2008 for violating the 14th Amendment, questions the validity of using race as a factor in school admissions. Unfortunately for Fisher, the U.S. Fifth Circuit Court of Appeals recently declined to rehear her case after ruling in July, for a second time, that UT’s use of race in its admissions policy is constitutional, leaving her to appeal, again, to the U.S. Supreme Court. Whether the public agrees with Fisher’s stance in the case is irrelevant; she has the right to see the highest U.S. court for a second time.

While Fisher claims she was the victim of discrimination in the holistic review process applied to UT applicants not admitted to the University through the Top Ten Percent Rule, her application just wasn’t enough to secure a spot with the 42 white students who were admitted despite their class rank. The University claimed it would not have accepted her even if she were any other race. Hailing from a Longhorn family and growing up with the aspiration to follow in their footsteps, I understand her sense of injustice. Critics said the courts that ruled in favor of the University were not strict enough in their examination, affirming the University’s case without considering Fisher’s fairly. Both Fisher and Edward Blum, who funds the case through his legal defense fund, simply want a hearing by an en banc court (meaning the full 15-judge panel would hear the case) that would examine the case without bias, rather than the skeleton courts they’d appealed to before in which only three judges heard the case.

This case is reminiscent of the famous 2003 Grutter v. Bollinger case in which a white student applied to University of Michigan Law School and was denied under similar circumstances and the 1978 University of California v. Bakke case in which a white student experienced something similar in his application to medical school. Fisher is the Grutter/Bakke of our generation but isn’t getting the same opportunity for retrial in high courts as they did. All three cases question affirmative action policies as a violation of Equal Protection Clause and Civil Rights Act of 1964. All three include instances in which a white student wasn’t accepted over minority students. However, in this day and age, affirmative action is being called into question where it was arguably more necessary in the past. So, as the two before it, Fisher’s case deserves an end at the Supreme Court.

Most of all, the court should rehear her case in order to put it to rest for good. Six years and several appeals later, Fisher and her family don’t seem to be letting up at all. Although Fisher has already earned a bachelor’s degree from Louisiana State University and currently works as a financial analyst in Austin, her rejection from UT isn’t something she’s taking lightly, even to this day. Having the highest of courts to tell her she’s wrong would not only end this particular debate, but emphasize to students of every race the importance of working hard to get accepted to your school of choice.

Fisher and her supporters seem to be confused about the fact that universities can’t let everyone in. Class rank, test scores, essay quality, resume and recommendations all go into the review process and everyone, regardless of race, must exceed certain requirements in order to earn admission to the school. If the Supreme Court agreed to rehear the case, and even the more conservative members ruled in favor of upholding diversity over mediocre academic achievements, perhaps the young people of the nation would be motivated to work harder in their studies. It would reinforce the idea to Americans that belonging to a minority race is typically less helpful and more hindering to academic and career success.

Racial basis for admission is being challenged by many in modern society, but the strict scrutiny of the Supreme Court deciding on the Fisher case could put a legal end to the question once and for all.

Griffin is a journalism freshman from Houston. Follow her on Twitter @JazmynAlynn.

Two days before early voting, the U.S. Supreme Court voted to uphold Texas’ controversial voter identification law for the 2014 elections.

The Supreme Court ruled in favor of the law Saturday, six to three, with Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor voting against.

On Tuesday, the 5th U.S. Circuit Court of Appeals voted to reinstate the voter ID law, known as Senate Bill 14. The law, which requires voters to bring a valid photo ID to the polls, will continue to be enforced with the Supreme Court’s decision. U.S. District Judge Nelva Gonzales Ramos ruled the law was unconstitutional less than two weeks ago, equating it with a “poll tax,” and saying it oppressed minority voters. 

Ginsburg wrote a six-page dissent on her reasons for overturning the previous decision to enforce the voter ID law, saying the Court of Appeals’ decision was made for the wrong reasons.

“Refusing to evaluate the defendants’ likelihood of success on the merits and, instead relying exclusively on the potential disruption of Texas’ electoral processes, the Fifth Circuit showed little respect for this Court’s established stay standards,” Ginsburg wrote.

Lauren Bean, spokeswoman for the Texas Attorney General’s office, released a statement praising the Supreme Court’s decision.

“We are pleased that the U.S. Supreme Court has agreed that Texas’ voter ID law should remain in effect for the upcoming election,” Bean said. “The state will continue to defend the voter ID law and remains confident that the district court’s misguided ruling will be overturned on the merits. The U.S. Supreme Court has already ruled that voter ID laws are a legal and sensible way to protect the integrity of elections.”

While the law will be in effect for this year’s elections, the 5th U.S. Circuit Court of Appeals will continue to review its constitutionality.

This is part of a weekly Point/Counterpoint series. To read the opposing viewpoint, click here.

On Tuesday afternoon, the 5th U.S. Circuit Court of Appeals issued a temporary stay to prevent changes to the state’s existing voter law, citing a lack of time for the state to train its election officials. Under current law, participants are required to show photo identification in order to vote. The practice has become subject to heightened scrutiny as November’s election approaches. Some have criticized the law as a thinly-veiled attempt to disenfranchise minority citizens. Gubernatorial candidate Wendy Davis has even gone so far as to liken the policy to a Jim Crow-era poll tax. Though it can be compelling to buy into the hyperbole of political rhetoric, critics of the law are omitting crucial information in order to present a strong case and do voters a grave disservice in the process.

To present the voter ID laws as such a highly partisan issue reduces an issue of the most fundamental importance into one subject to inter-party bickering. Democratic candidates have recently taken up arms for the cause, largely to propagate their movement to “turn Texas blue.” For a losing party struggling to gain a foothold in the Texas electorate, it’s easy to call “foul play” on legislation and expect voters to follow suit. But its critics lack an alternative policy to implement when the law is hypothetically repealed, and many existing statistics contradict some of their loudest claims.

For example, Texas is not the only state to require voter ID. Our law, while admittedly the most stringent, certainly does not stand alone in its cause: Nineteen other states require photo identification in order to vote. And though much criticism has been lodged because of Texas’ racist voter history, it can be argued that the nature of the recent border crisis affords the state some additional precautions to verify citizens. 

When the high court does rule on a decision, the test will likely be one of unnecessary burden: How severe is the impact on voters? Is there a severe chance of confusion? And how late in the game is it to issue new precedent? The latter, of course, has already been addressed by the Fifth Circuit. And though the former has been muddled in a haze of deliberate histrionics, many political scientists contend that Texas’ law is indeed narrowly tailored to fit its cause. 

Whether or not the court decides to uphold Texas law, voters would do well to get their facts straight. The premise that ID laws prevent throes of minorities access to polls is misleading, and it is ultimately false. It is an argument crafted to spark resistance rather than research; and it is made largely without factual claim. A study conducted in June, after North Carolina implemented its voter ID law, illustrated that black voter turnout increased more than white voter turnout did: an increase of 29.5 percent compared to an increase of 13.7 percent. 

The reality of the situation is that many of the so-called “disenfranchised” voters exist solely because they are disengaged — they represent a percentage of the population that is unlikely to show up to the polls, overturned requirements or otherwise. Voter identification laws may well be a somewhat “slow and clunky” regulation of statewide elections, as lamented by Loyola College’s Justin Levitt. But unless the Supreme Court chooses to act otherwise, potential for reform will be found in the hands of Texans, and Texans alone. The argument, therefore, must exist beyond partisan slander and dualistic debate; and must prioritize mature discussion over detrimental mud-slinging.  Because by acting otherwise, our representatives create a system of losing — and of waves of ramification that will crash most heavily on us.

Deppisch is a government senior from League City.

The Supreme Court temporarily put two provisions of House Bill 2 on hold Tuesday, allowing some abortion clinics in Texas to reopen.

The 5th U.S. Circuit Court of Appeals had ruled earlier in October to enforce the two provisions — one requiring ambulatory services and the other requiring hospital-grade surgery facilities in all abortion clinics in Texas.

The Supreme Court ruled 6-3 to block the provisions, which would have shut down all but eight of Texas’ abortion clinics. The court made the decision in response to an emergency application filed by attorneys representing Texas women’s health care providers. The application asked for the court to reinstate U.S. District Judge Lee Yeakel’s injunction to block the ambulatory services provision of HB2.

The court did not release an expanded opinion of their decision but specified that Justices Antonin Scalia, Clarence Thomas and Samuel Alito would have rejected the emergency application completely. 

In its decision, the court also said the admitting-privileges provision, which requires abortion clinic doctors to have admitting privileges at a hospital within 30 miles, would be null at the McAllen and El Paso clinics.

State Sen. Wendy Davis, D-Fort Worth, the Democratic gubernatorial candidate who filibustered an earlier version of the law in June 2013, expressed her support for the Supreme Court’s decision to block the previous ruling by the 5th Circuit Court of Appeals.

“The court recognizes that these deeply personal decisions should be made by a woman with the guidance of her family and her doctor,” Davis said in a statement Tuesday.

Thirteen abortion clinics in the state will be able to reopen Wednesday, according to Nancy Northrup, president and CEO of the Center for Reproductive Rights, which has represented the abortion clinics as the provisions have been deliberated by the courts.

The 5th Circuit Court will continue to review the law until it makes a final decision on its constitutionality. Lauren Bean, deputy communications director for the Texas Attorney General’s Office, said the office “will continue to defend the law, just as we defend all state laws when they are challenged in court.”

Alexander Parker, College Republicans communications director, said the decision did not mark the end of reproductive legislation decisions.

“It’s certainly been back and forth,” Parker said. “However, the attorney general has remained committed to defending HB2 as he would any other law. We’ll just have to wait to see what the final decision is.”

University Democrats President Max Patterson praised the decision as it will allow women in the state easier access to clinics.

“It means that women in Texas, including those on campus, will not see unconstitutional restrictions to their right to make their own, very personal health care decisions concerning their own bodies,” Patterson said.

Less than a week before the start of early voting, a federal appeals court reinstated Texas’ controversial state voter ID law Tuesday, which was ruled unconstitutional by a federal district judge last week. 

The 5th U.S. Circuit Court of Appeals determined Tuesday it is too late to change the law for the upcoming November election, citing three other Supreme Court decisions to stall Court of Appeals decisions based on the short time frame before elections. Early voting begins Monday, and Election Day is Nov. 4.

“While the Supreme Court has not explained its reasons for issuing these stays, the common thread is clearly that the decision of the Court of Appeals would change the rules of the election too soon before the election date,” the ruling said. “The stayed decisions have both upheld and struck down state statutes and affirmed and reversed district court decisions, so the timing of the decisions rather than their merits seems to be the key.”

U.S. District Judge Nelva Gonzales Ramos condemned the law, known as Senate Bill 14, as a method to suppress minority voting. The law requires voters to bring photo identification — such as a driver’s license — in order to vote. She also equated the law to a “poll tax,” citing the extra money that could potentially quash lower-income citizens from voting. 

In their decision, the appeals court said training polling workers under new requirements in less than a month would be too complicated. 

“Here, the district court’s decision on October 11, 2014 presents similar logistical problems because it will ‘be extremely difficult, if not impossible,’ for the State to adequately train its 25,000 polling workers at 8,000 polling places about the injunction’s new requirements in time for the start of early voting on October 20 or even election day on November 4,” the ruling said.

In response to the ruling, Greg Abbott, attorney general and Republican gubernatorial candidate, called the decision a “victory” in a tweet. 

Abbott’s gubernatorial opponent, state Sen. Wendy Davis, D-Fort Worth, condemned Abbott’s position in a statement, calling the voter ID law a “poll tax,” referencing Gonzales’s previous decision. 

“It is deeply disturbing that Greg Abbott would call a law the court said is intentionally discriminatory against African-Americans and Hispanics a ‘victory,’” Davis said. “As the court further said, it’s nothing more than a ‘poll tax,’ which means democracy and all Texans lose.” 

After the ruling, the Texas Department of Public Safety announced it will continue to offer Election Identification Certificates, which will serve as valid identification at the polls. Applicants for EICs must be Texas residents and have proof of U.S. citizenship, as well as be eligible to vote in the upcoming election. 

Max Patterson, director of Student Government’s Hook the Vote agency, said his organization would work to inform students of the law. 

“We will continue to educate students on the restrictions put in place by the legislature for voter ID — either by speaking to classrooms, organizations or by supporting the voter education initiatives of our partner organizations,” Patterson said.

Supreme Court takes important step toward equality

This Jan. 25, 2012 file photo shows the U.S. Supreme Court Building in Washington. The justices are unlikely to have the last word on America's tangled efforts to address health care woes. The problems of high medical costs, widespread waste, and tens of millions of people without insurance will require Congress and the president to keep looking for answers.
This Jan. 25, 2012 file photo shows the U.S. Supreme Court Building in Washington. The justices are unlikely to have the last word on America's tangled efforts to address health care woes. The problems of high medical costs, widespread waste, and tens of millions of people without insurance will require Congress and the president to keep looking for answers.

In a stunning reversal, the US Supreme Court allowed by omission yesterday for same-sex marriage to go forward in five states, and cleared the way for marriage equality in a further six. The way they did this was by refusing to hear an appeal on the decision by a few federal appeals courts to strike down local laws banning same-sex marriage.

While Texas indeed currently has a stayed federal court order against its so-called defense of marriage amendment, it was not covered by the Supreme Court's actions (or inactions) Monday. In fact, it will probably be the Texas case that will cause the justices to finally examine this question of nationwide same-sex marriage once and for all. With the Texas case currently tied up in the 5th Circuit Court of Appeals, a fiercely conservative court, there is a good chance that it will affirm the bans. This will cause a split in appellate decisions, which hitherto have been unanimous in striking down the bans. A split would almost certainly necessitate the Supreme Court getting involved.

The slow and incremental steps that the court is taking appear to be in the same spirit of gradual change that Justice Ruth Bader Ginsburg has long advocated. A critic of the abruptness of the court's decision in Roe v. Wade, Ginsburg has derided sudden nationwide mandates, calling them a catalyst for polarizing gridlock. Instead, she has argued for public opinion to change and then for the court to take baby steps. Chief Justice John Roberts, long obsessive over the court's public image, could have likely come to a similar conclusion.

,And with public opinion rapidly changing on this issue, the court took yet another baby step toward equality on the topic Monday. Indeed, in one of fastest reversals in political history, the percentage of Americans supportive of same-sex marriage has nearly doubled from about 30% in 2004 to about 60% today. It's a good step, but there is still much left to do.

Horwitz is an associate editor.

Photo Credit: Erika Rich | Daily Texan Staff

I’m more likely to have an abortion in the next three years than I will be for the rest of my life. The statistics say women in my 20-24 age group account for one-third of all abortion procedures in the country.

Thanks to Roe v. Wade, a famous 1973 court case that originated in Dallas and gave women the right to an abortion, I get to choose whether or not I want an abortion if I get pregnant. 

But things have gotten a lot trickier for women in Texas. Last summer, House Bill 2 introduced a new set of restrictions on abortion care in the state. It went into effect in October 2013 and has since shut down over half of the abortion facilities around Texas. 

The 5th Circuit Court of Appeals is getting ready to hear an appeals case that deals with HB2. The case, Whole Woman’s Health v. David Lakey, already has a long and confusing story behind it. 

Let’s start at the beginning.

What is HB2?

HB2 is a bill introduced by the 83rd Texas Legislature that supporters say is meant to make abortion safer for women seeking the procedure. It creates more obstacles between a woman and an abortion, which in turn makes abortion inaccessible for a majority of Texas women. Unfortunately, when clinical abortion is inaccessible, there is no such thing as a safe abortion.

What is a woman?

Genetically speaking, a woman is a human with two X chromosomes. The sex organs of a woman include two ovaries, fallopian tubes, a uterus and a vagina. 

What is an abortion?

An abortion is a medical or surgical procedure that terminates a pregnancy before viability, or the point at which a fetus could survive outside of the womb.

Is abortion legal?

Technically, yes. Roe v. Wade gave women in the U.S. the right to an abortion in 1973.

There are two ways to legally terminate a pregnancy in Texas. A medical abortion involves taking drugs called mifepristone and misoprostol over the course of three separate doctor visits. A surgical abortion is a five to seven minute outpatient procedure.

How common is abortion? 

Pretty common. About one-third of women have an abortion by the time they reach 45. Most of these women already have a child.

Why do people get abortions?

Because they choose to. 

How does HB2 affect abortion access?

The provisions in HB2 are so strict — among the toughest in the country — that it’s difficult for most clinics in the state to meet them. There are only seven providers in Texas that do — they are located in the Texas metroplexes of Austin, San Antonio, Houston, Dallas and Fort Worth.

What are these new abortion rules?

There are four new abortion restrictions listed in HB2. 

1. More restrictions on the use of the abortion pill, or medical abortion, that increase the number of doctor visits a woman must make for the procedure.
2. A ban on abortions at or over 20 weeks of pregnancy, except in cases where the woman or fetus’s life is in danger.
3. Physicians must have admitting privileges at a hospital with an OB/GYN department within 30 miles of the clinic or facility.
4. All abortion facilities have to meet the standards of an ambulatory surgical center. This includes clinics that only provide medical abortions.

So is this the law in Texas now? 

This is where things get fuzzy. Right now, the 5th Circuit Court of Appeals is hearing a case called Whole Woman’s Health v. Lakey. They will soon decide whether or not the state will be able to enforce the admitting privileges and the surgical center clauses of HB2 while the court handles the appeals case. The other two provisions were enforced in 2013. 

What happens if the 5th Circuit sides with the state and upholds all of the provisions of HB2?

According to Mark Jones, the chair of the Department of Political Science at Rice University, HB2 will likely end up in the Supreme Court. 

We’re about to get a new governor. Will this affect HB2 at all?

No. Even if Wendy Davis — who opposed the bill from the very beginning — won, she couldn’t really do anything to repeal the bill. Jones said the earliest chance Texans have at repealing HB2 would be in the spring of 2023, after the state redistricts in 2021.

Until then, small, federal court cases have the best shot at overturning individual provisions of the bill. 

While physicians around the state fight to stay optimistic, the outlook for abortion access in Texas is grim. When there is no way for women in West Texas and the Rio Grande Valley — two regions that will be left entirely without facilities — to get an abortion, women seek other, illegal methods for terminating unwanted or unsafe pregnancies. The statistics will disappear and the numbers will go down, but the danger associated with the procedure will increase. 

If this makes you angry and you want to learn more or help, there are several UT related organizations that deal with HB2. To learn more about the legislation and the effects it has on the state, the Texas Policy Evaluation Project is working on a project that assesses the impact of reproductive health legislation. You can also donate to groups like Fund Texas Choice — created by UT student Lenzi Sheible — that help women in Texas arrange transportation to abortion clinics and pay for hotel accommodations and other associated procedure costs.

In this podcast, Jacob Kerr, Amanda Voeller and guest Nick Castillo discuss the UT System Board of Regents naming Naval Adm. William McRaven the sole finalist to replace Francisco Cigarroa as chancellor. They also talk about media reports on Texas football coach Charlie Strong removing multiple players off the football team for violating his list of core values and Abigail Fisher's request for the 5th Circuit Court of Appeals to hear her case against the University's admissions policy en banc.

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.