Edward Blum

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.”

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.

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.

Abigail Fisher, Edward Blum says Fisher v. Texas court decision is a "win"

At a press conference in Washington D.C., Edward Blum, the director of the Project on Fair Representation, said the ruling on Fisher v. Texas is a "win" for those who are opposed to affirmative action or race conscious admissions policies. 

Early Monday morning, the Supreme Court released a ruling on Fisher v. Texas, the supreme court case that challenged UT's policy of using race in admissions. The Supreme Court sent the case back to a lower court, in a 7-1 decision.

UT President William Powers Jr. and others have said the rulling is a win for the University and affirmative action supporters, but Blum contradicted that Monday afternoon, claiming the ruling was a loss for the UT.

"I can't speak for the other side...if they're excited for this ruling I think they're gravely misplaced," Blum said. "I think it is quite clear the justices demand schools seek race-neutral policies."

Fisher gave a brief statement about how she was honored to be apart of this process. 

"I am very confident UT won't be able to use race as a factor in admissions in the future," Fisher said.

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 UT is filing a response today that asks the U.S. Supreme Court not to review a lawsuit challenging its consideration of race in the undergraduate admissions process, vice-president for legal affairs Patricia Ohlendorf said.

The lawsuit Fisher v. Texas was originally filed in 2008 on behalf of two white students denied admission to the University. UT’s filing with the court responds to the suit’s appeal to the Supreme Court, which only one of the students pursued. Ohlendorf said UT argues in the response that the University is in accordance with a 2003 Supreme Court case, Grutter v. Bollinger, which allows universities to use race in the admissions process to promote diversity.

“UT believes that its arguments are strong,” Ohlendorf said. “UT believes that its admissions policy is consistent with the U.S. Supreme Court opinion in Grutter v. Bollinger.”

Race and ethnicity is one of eight special circumstances that, along with personal and academic achievement, are factored into the freshman admissions process, according to the University’s website.

Fisher v. Texas was defeated by an Austin district court and the 5th Circuit Court of Appeals. In a 9-7 vote the 5th Circuit Court of Appeals refused to re-hear the case. These lower courts have ruled UT’s policy is in accordance with the Supreme Court decision in Grutter v. Bollinger.

In an opinion written for the 5th Court of Appeals by judge Emilio Garza, he concurred UT was within legal bounds set down by the Supreme Court but was critical of the University’s use of race as a contributing factor to admission in part because UT already had existing policies that effectively promoted diversity.

“The University was able to obtain approximately 96 percent of the African-American and Hispanic students enrolled in the entering in-state freshman class using race-neutral means,” Garza said.

The race-neutral policy Garza referred to is the state law passed in 1997 that mandates UT to admit all Texas public school students in the top 10 percent of their graduating high school class. Garza said the fate of UT’s admissions policy rests in the hands of the Supreme Court.

UT’s top 10 percent rule has changed since the suit was filed, but the Supreme Court will base it’s decision on the 2008 policy.

“The Supreme Court has chosen this erroneous path and only the court can rectify the error,” Garza said.

A Supreme Court ruling striking down the race-based policy is something Edward Blum, a UT alumnus and member of the Project on Fair Representation, said his group supports.

“We disapprove of virtually all considerations of race in public policies,” Blum said. “What makes the UT case unique is that UT already had a law in place, known as the top 10 percent law, that was doing a better job of promoting diversity than the race-based policy.”

Blum said the Project for Fair Representation, a nonprofit legal defense fund, is paying for Fisher’s lawyers, and he expects at least six outside agencies to file briefs in support of Fisher today.

For past hearings of the lawsuit, the National Association for the Advancement of Colored People Legal Defense Fund has filed briefs in support of the University on behalf of the UT chapter of the Black Student Alliance. Representatives of the organization did not indicate it had filed a brief with the Supreme Court.

Cortney Sanders, government freshman and political action chair for the BSA, said she did not wish to speak of her or the BSA’s opinions of the lawsuit, but she encouraged her classmates to research the case’s factual background.

“The fact is the plaintiff was in the top 12 percent of her class and did not qualify for automatic acceptance,” Sanders said.

She said Fisher could have gotten points in the holistic admissions process for non-top 10 percent students by participating in extracurricular activities, being an athlete or demonstrating musical ability.

“She chose not to do those things,” Sanders said. “It’s a point system. Students need to know that.”

UT’s admission policy also may be affected by new guidelines released last week by the Department of Justice and Department of Education that provide approved methods for increasing racial diversity. The guidelines focus on how universities should implement policies if they find race-neutral approaches to be ineffective to achieve the diversity the institution seeks.

Previous guidelines administered in 2008 under the Bush administration stated, “before using race, there must be serious good faith consideration of workable race-neutral alternatives.”

UT spokesman Gary Susswein said University officials are reviewing the guidelines but could not speak about the admissions policy due to the pending lawsuit.

The Supreme Court is expected to decide in mid-January if it will hear the case, Blum said.

Printed on Wednesday, December 7, 2011 as: UT asks court not to review affirmative action lawsuit