Fifth Circuit Court

Photo Credit: Michael Todd | Daily Texan Staff

Attorneys for both the University and Abigail Fisher, a rejected UT applicant, argued over the necessity of a race-conscious admissions policy in front of the Fifth Circuit Court of Appeals on Wednesday.

Fisher sued the University in 2008 for discriminating against her based on her race, which she claimed was in violation of the 14th Amendment. 

In June, the Supreme Court determined the Fifth Circuit had failed to apply strict scrutiny to the University’s race-conscious admissions policy and sent the case back to the Fifth Circuit court to determine whether the University’s policies are narrowly tailored and necessary to achieve a “critical mass” of minority students. 

In their questions during oral argument, Judges Patrick Higginbotham, Carolyn King and Emilio Garza focused on the way the University defines “critical mass,” as well as past attempts the University has made to increase minority enrollment.

“Every attempt I’ve heard to define a critical mass has been tautological, circular or objective,” Garza said.

Photo by Charlie Pearce / Daily Texan Staff

Greg Garre, the University’s attorney, 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.

“[Not using percentages] doesn’t mean that UT can’t determine when a critical mass is reached,” Garre said. 

In describing the difficulty of defining a critical mass, Garre and the judges both made references to former Supreme Court Justice Potter Stewart’s famous quote, “I know it when I see it.”

Fisher’s attorney Bert Rein said if the University considers race in its admissions process for people who do not qualify for admission under the state’s Top 10 Percent rule, the school must provide undeniable evidence that diversity could not have been achieved through any other means. 

“If you pick race, you have to be able to withstand strict scrutiny,” Rein said.

According to Garre, the University uses race as part of a much larger admissions process, 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. 

“One factor of a factor is race,” Garre said.

Higginbotham said because most low-performing schools in Texas are heavily made up of minority students, if the University did not use holistic review to gain minority students, then students might begin to assume all minority students at the University are from low-performing schools.

“That to me creates the stigma that [Justice Clarence Thomas] has rightly complained about,” he said.

President William Powers Jr. — who is a Harvard Law graduate and a former dean of the UT Law School — said he thinks the questions the judges asked clearly indicate they researched the University’s specific admission policies. 

“The court was very well prepared on both sides,” Powers said. “The arguments were very relevant to the application of the [admissions] standard. Arguments were excellently presented.”

The University has been the center of many previous cases related to affirmative action. In 1996, Hopwood v. Texas was the first affirmative action case to strike down race as a factor during an admissions process, though the right to use race with certain qualifications had been established in Regents of the University of California v. Bakke in 1978.

Grutter v. Bollinger, a case brought against the University of Michigan in 2003, declared use of race as an admissions criteria constitutional, reversing the Hopwood ruling.

Garre argued that during the seven years between those two cases, while the University did not use race as part of its admissions process, the percentage of African-American students in the student body fell by approximately 50 percent.

“In 2004, there were 15.2 percent minority admits,” Garre said. “You go to 2007, the 15.2 percent ballooned to 23.6 percent with the addition of race in holistic review.”

Rein said the University has not made any attempts to use race-neutral admissions criteria since the Grutter case declared that using race as a factor is constitutional.

“They haven’t looked at a darn thing,” Rein said. “What they did is look at Grutter and say, ‘The green light is on.’”

Powers disagreed and said the University has been unable to achieve its goals of student diversity through processes that do not take race into consideration.

“To suggest that we have not tried race-neutral admissions policies ignores the University’s history,” Powers said in a statement. “In fact, prior to the introduction of the admissions policy being defended today, the University saw the number of minority enrollments drop precipitously or stagnate, despite more targeted recruiting, increased scholarships, the use of socioeconomic factors in holistic review and the introduction of the Top 10 Percent law.”

Additional reporting by Jordan Rudner.

In response to the Supreme Court’s decision in Fisher v. University of Texas earlier this year, officials from the Obama administration affirmed the validity of using race as a factor in determining university admissions in a letter addressed to university presidents across the country on Friday.

 

Following the Supreme Court’s ruling in the Fisher case, officials from the Education and Justice departments said colleges and universities within the United States can continue to use race as a factor in their admission policies only if it is necessary for achieving diversity.

 

“The Court preserved the well-established legal principle that colleges and universities have a compelling interest in achieving the educational benefits that flow from a racially and ethnically diverse student body and can lawfully pursue that interest in their admissions programs,” the letter said.

 

In June, the Supreme Court ruled that the Fifth Circuit Court did not apply strict scrutiny to UT’s admission policy, which does use race as a factor, and sent the case back to the appeals court. The Court’s decision in the 2003 Grutter v. Bollinger case allowed universities and colleges in the United States to use race as a factor, only if no other race-neutral means of achieving diversity goals were viable.

 

UT law professor Lino Graglia, who specializes in racial discrimination and affirmative action among other topics, said the Obama administration sent the letter because the Fisher decision has opened the door for admissions policies to be further scrutinized.

 

“The Grutter case said that diversity is a compelling interest. What the Fisher case did is cast some skepticism on that,” Graglia said. “They haven’t disallowed racial preferences [in university admissions], but they certainly invited litigation.”

 

In an email to The Daily Texan last week, Edward Blum, director of the Project for Fair Representation, said in sending the case back to the Fifth Circuit, the Supreme Court ruled in plaintiff Abigail Fisher’s favor. His organization has represented Fisher during the case’s progression through the legal system.

 

“Abby Fisher never asked the Court to overturn Grutter. We only asked that Grutter be applied properly by UT,” Blum wrote in his email. “The Court agreed with us 7-1. We won; UT lost; the Fifth Circuit was wrong in their decision and analysis and the justices vacated the opinion.”

 

Fisher sued the University in 2008 after she was denied admission into the University. Fisher, who has since graduated from Louisiana State University, claimed UT 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.

 

Although the Supreme Court sent the case to a lower court so UT’s admissions policy might be looked at more closely, Graglia said the Fisher decision did not overturn the Grutter ruling.

 

“The Fisher decision does not go as far as the opponents of affirmative action want,” Graglia said. “That is, it doesn’t say that considering race in admissions is unconstitutional.”

 

UT spokesman Gary Susswein did not comment on the letter but said the University is confident in its admissions policy.

 

The Fifth Circuit Court is scheduled to hear the Fisher case again on Nov. 13.

In response to the U.S. Supreme Court’s decision in Fisher v. University of Texas at Austin earlier this year, officials from the Obama administration affirmed the use of race as a factor in determining university admissions.

In a letter addressed to university presidents across the country, representatives of the U.S. Department of Education and the U.S. Department of Justice said on Friday that their departments strongly support diversity in higher education. 

“The Court preserved the well-established legal principle that colleges and universities have a compelling interest in achieving the educational benefits that flow from a racially and ethnically diverse student body and can lawfully pursue that interest in their admissions programs,” officials said in the letter.

With the Fisher decision, the officials from the education and justice departments said colleges and universities in the U.S. can continue to use race as a factor in their admissions policies if it is necessary for diversity on campus. Representatives also released a document detailing answers to prominent questions about the decision’s impact on admissions.

In June, the Supreme Court ruled the Fifth Circuit Court did not apply strict scrutiny to UT’s admission policy and sent the case back to the appeals court. 

Law professor Lino Graglia said the Obama administration sent the letter because the Fisher decision has opened the door for college admissions policies to be further scrutinized. Graglia mentioned the 2003 Grutter v. Bollinger case, which allowed universities and colleges in the U.S. to use race as a factor, but required there be no other race-neutral means of achieving diversity goals.

“The Grutter case said that diversity is a compelling interest,” Graglia said. “What the Fisher case did is cast some skepticism on that. They haven’t disallowed racial preferences [in university admissions], but they certainly invited litigation.”

The Fifth Circuit Court is scheduled to hear the Fisher case again on Nov. 13.

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. 

UT President William Powers Jr. addresses reporters at a press conference following a Supreme Court announcement on Fisher v. Texas.

Photo Credit: Emily Ng | Daily Texan Staff

On June 24, the Supreme Court voted 7-1 to kick back to the Fifth Circuit Court of Appeals the case of Fisher v. Texas, which pitted Abigail Fisher, a white woman who was denied admission to UT-Austin, against the University.

The decision of the Supreme Court came as a surprise to the many who had been expecting a broad ruling on the constitutionality of affirmative action. Instead, the justices’ decision kicked up a cloud of uncertainty, and the immediate impact of the ruling on affirmative action was so vague that both Abigail Fisher and UT-Austin President William Powers Jr. declared victory on national television.

STRICT SCRUTINY 

The University certainly has reason to be happy with the ruling, in that the Supreme Court didn’t dismantle UT’s existing admissions criteria. But the court also suggested that the Fifth Circuit had failed to hold UT-Austin’s admissions policy to the standard of “strict scrutiny” required for admissions processes that take into account an applicant’s race, meaning that UT-Austin’s holistic admissions policy will once again be considered in the lower court, and that this time the judges must go over the University’s policies with a finer-toothed comb.

Strict scrutiny, as laid out in relation to affirmative action programs in Regents of the University of California v. Bakke, requires universities that consider race in admissions to prove that doing so achieves a “compelling interest,” such as the benefits of exposure to new ideas that come from having a diverse student body. Moreover, a university must be able to prove that the measures it uses to achieve this “compelling interest” are “narrowly tailored” to its purpose.

HOPWOOD & GRUTTER

In 1996, the Fifth Circuit Court of Appeals dealt a blow to the racial diversity of UT-Austin when it ruled in Hopwood v. Texas that the law school’s use of race in admissions decisions was unconstitutional. The  Hopwood decision led to the removal of race as a consideration in admissions decisions in the state. After Hopwood, minority enrollment at UT dropped, causing the Texas Legislature to put in place the Top 10 Percent Plan in 1997, which increased minority enrollment at the University without explicitly considering race.

Hopwood, however, was reversed by the Supreme Court in the decision of Grutter v. Bollinger, which deferred to universities on decisions about using race in admissions. But last week’s majority opinion, written by Justice Anthony Kennedy, made it clear that deference has its limits. The ruling stated that the Fifth Circuit Court had given too much deference to the University when that court declared it was ill-equipped to “second-guess the merits” of UT’s race-conscious admissions policies. In other words, the Supreme Court declared that the lower court had been too hasty in declaring that UT-Austin’s admissions policy was necessary and fair. 

WHY RACE? 

Justice Kennedy didn’t stop at the issue of deference, however. In addition, he pointed out that one of the linchpins in the Bakke schema was that policies like UT’s could not be used if  “a nonracial approach … could promote the substantial interest about as well and at tolerable administrative expense.” Many have suggested that consideration of a student’s socioeconomic level in admissions policies might be as beneficial to the diversity of the student body as considerations of racial and ethnic backgrounds.

But in 2003, six years after the Legislature passed the Top 10 Percent Plan, UT conducted a study in which minority students reported feelings of isolation and a majority of students agreed that there was a lack of diversity on campus.

That same study also found a shocking lack of black and Hispanic students in classes with five to 24 students: Ninety percent of those classes had one or zero black students, while 43 percent had one or zero Hispanic students. These numbers were used to justify the re-instatement of a racially based admissions policy after Grutter was decided. Although the percentages of minorities in entering classes increased slightly after the law’s implementation, these statistics, in our view, provide suitable justification for UT’s continued use of race as one of many factors in the admissions process.

POST-FISHER

It has been less than 50 years since the Civil Rights Act of 1964 became law.  According to the Texas Politics project in 2007, 24.8 percent of Texas Hispanics and 23.8 percent of Texas African-Americans live in poverty, compared to just 8.4 percent of whites in Texas.

In sending Fisher back to the lower court, the justices have put at risk affirmative action policies across the nation.

We agree with Justice Ruth Bader Ginsburg, the lone dissenter in the case, who said, “Only an ostrich could regard the supposedly neutral alternatives as race-unconscious... As Justice Souter observed, the vaunted alternatives suffer from ‘the disadvantage of deliberate obfuscation.’” And as we all know, the only way for an ostrich — or the Fifth Circuit — to see the light is to pull its head out of the sand.

 

 

 

 

 

The case of the 2005 murder of a UT student could find its way back into court because of previously witheld evidence.

Defense attorney Joseph Turner, who represented Colton Pitonyak, said Tuesday that the Fifth Circuit Court granted his appeal after petitioning the courts on the claim that it was Laura Hall who actually committed the murder, according to KVUE.

In 2007, Pitonyak was convicted for murdering Jennifer Cave in 2005 at his West Campus apartment and then mutilating her body. Pitonyak and Hall then fled to Mexico and were apprehended while attempting to cross back into the U.S. Cave, Pitonyak and Hall were all UT students.

Pitonyak was handed a 55-year prison sentence, while Hall received 10 years for tampering with evidence. 

Turner told KVUE that Hall confessed to the murder while in prison, informing other inmates who then reported her confession to prison officials. Turner said these reports were documented in the inmates’ files and were never turned over to the defense, and his previous requests for appeal on similar grounds were denied.

Turner said he has been granted an appeal on the issue of a Brady violation, which states that prosecuting bodies cannot withhold evidence that may benefit the defendant, marking an initial step toward an appeal and new trial. 

The Fifth Circuit Court, which granted Turner’s appeal, has yet to release information regarding the hearing.

Freelance artist, actor and activist Kaci Beeler led a group of more than 200 people to the Capitol last Saturday to protest the Planned Parenthood budget cuts. The Texas branch of the family planning organization will see its funding greatly reduced because it provides women with abortion options.

Photo Credit: Fanny Trang | Daily Texan Staff

A quiet congregation of more than 200 people stood at the Texas Capitol building’s south gates Saturday protesting the funding cuts that family planning organization Planned Parenthood will receive in Texas because it provides abortion services.

Local activist Kaci Beeler organized the rally as a response to the Fifth U.S. Circuit Court of Appeals’ decision last week that allows the state of Texas to exclude Planned Parenthood from the Women’s Health Program, which funds health services for low-income women. The decision overturned a ruling by a lower court that prevented Texas from excluding Planned Parenthood from its Women’s Health Program.

Beeler said she felt stressed and helpless when the ruling was overturned.

“We’re moving backward from previously established policies. There is a lot of power in being able to reproduce and [legislators] want to control it,” Beeler said.

Beeler, a 25-year-old Austin artist, had never organized a protest before, but felt compelled to speak out about women’s health issues after the ruling, she said. Beeler said she publicized the protest with a Facebook page, and it grew quickly after that.

“People felt the same way I did: helpless and confused. They wanted to do something but they weren’t sure how,” she said.

While both men and women attended, women were asked to wear a target as a visual representation of feeling “targeted for having the power to reproduce,” Beeler said.

Austin business lawyer Brenda Collier donned a target during the rally. Collier graduated from UT’s School of Law in 1982. She said she wasn’t surprised by the Fifth Circuit Court’s reversal based on the court’s previous rulings on women’s issues.

“Women will die,” Collier said. “They will not be able to find healthcare screenings, contraceptive options or safe abortions.”

Because Planned Parenthood served almost half of the 110,000 women benefiting from the $40 million Women’s Health Program, the remaining health care providers will have to dramatically increase their capacities to keep up with the anticipated demand.

Collier works mostly with entrepreneurs, but also volunteers her representation to people unable to afford attorneys, including minors who need to obtain permission from the court for an abortion. She said some of these women rely on Planned Parenthood for health care.

Texas Gov. Rick Perry said the Fifth Circuit Court’s decision was a “win for women,” a sentiment Collier said she did not share. “People are entitled to their own opinions, but they need to keep their laws off our bodies,” she said. “People see this as a moral issue, but it’s not. It’s about freedom and privacy.”

The decision to exclude Planned Parenthood from state funding came one day after U.S. Senate candidate Todd Akin’s claim that in the case of a “legitimate rape,” a woman’s body “has ways to try to shut that whole thing down.”

Denise Henry said this intensifying conflict over women’s rights in the news brought her down from Lampasas to volunteer.

Henry, a rally volunteer who was raped in 1971 and became pregnant as a result, took offense at the statement.

“I thought I’d come to a place in this world where we wouldn’t have to fight for these rights,” Henry said. “When it becomes legislation, that’s when I sit down and cry. Once it’s done, it’s harder to change but not impossible. Nothing is impossible.”

UT’s consideration of race as a factor for undergraduate admissions may once again go before the U.S. Fifth Circuit Court of Appeals for consideration. The plaintiffs in the case, Abigail Fisher, et al v. State of Texas, et al, filed a petition Tuesday for a re-hearing by the full Fifth Circuit Court’s panel of judges. That circuit — which covers Mississippi, Louisiana and Texas — consists of 15 active judges and one senior judge eligible to hear the case. The University has until Feb. 22 to file a response to the petition, after the court granted a deadline extension to allow the University’s representation to meet, said a deputy clerk who asked not to be named. After the response is filed, the court will vote on whether to re-hear the case with the full panel of judges. Two white students denied admission to UT in 2008 filed suit for discrimination based on the University’s consideration of race for students who are not automatically admitted under the top 10 percent rule. They argued UT’s admission policy violated the equal protection clause of the 14th Amendment. U.S. District Judge Sam Sparks of Austin ruled in favor of the University in 2009. A panel of three Fifth Circuit judges upheld Sparks’ judgement last month. The plaintiffs’ attorney Bert Rein said the petition focuses on the court’s application of a 2003 U.S. Supreme Court case to the UT ruling. The case, Grutter v. Bollinger, found that a race based admission policy at the University of Michigan Law School did not violate the 14th amendment because the policy advanced the compelling government interest of encouraging educational diversity. Rein said the three judge panel on the Fisher case read the Grutter case too narrowly, and the court thought it was bound by that case’s precedents to uphold any admission system that does not set a quota or assign a fixed number of points to minority students’ admission scores. “That’s the way the panel read the case, and we have a difference of opinion on the way the court should scrutinize and review a race-based admissions system,” Rein said. “We think we have substantial grounds for a re-hearing.” Patricia Ohlendorf, UT’s vice president for legal affairs, said the University has not yet laid out specific counter arguments for their response to the petition. She said the University still feels secure in its legal standing. Ohlendorf said the state’s new solicitor general Jonathan Mitchell, the former solicitor general involved in the original appeal, the attorney general and the university’s counsel will meet to plan and produce the University’s petition response. “It’s difficult to speculate, but we do think the court will find our position is very strong that there should not be a re-hearing,” Ohlendorf said.