Joseph Fishkin

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.

During the years George W. Bush was president, socially conservative state and national policies related to same-sex marriage and public school integration drove most on-campus discussions of civil rights. In the case of Parents Involved v. Seattle School District, the district claimed it was bussing students to schools outside their residential zones in order to further integration. The case made its way to the Supreme Court in 2007, with the Roberts-led court ruling with the parents of the schoolchildren that assignments based on race are still discriminatory even in the interest of desegregating schools. 

“[The Parents decision] certainly is a reflection of Bush’s appointees,” assistant law professor Joseph Fishkin said. “I’d say the most impactful legacy of the Bush administration was replacing [Sandra Day] O’Connor with [Samuel] Alito.”

According to Fishkin, one of the most important civil rights issues in the first decade of the 21st century was the rise of judiciary enforcement regarding integration. The courts, as opposed to Congress, were at the forefront of racial integration in schools, causing individual people to be held responsible for inclusion.

Nicole Barragan, Spanish and public relations alum, said she didn’t notice much controversy regarding racial integration while she was a student at the University during Bush’s presidency.

In 2003, the Bush administration passed legislation barring federal agents from using race or ethnicity in routine investigations, though the policy conspicuously omitted investigations involving terrorism and national security matters. “Austin was, and is, such a liberal city, so I don’t feel like there was anyone discriminated against,” Barragan said.

In 2004, Bush called on states to ratify an amendment to the U.S. Constitution defining marriage as a strictly heterosexual union. Bush said his push to amend was because of his belief that “marriage cannot be severed from its cultural, religious and natural roots without weakening the good influence of society.”

Some political commentators saw Bush’s appeal to the states as a deliberate move to bypass, or perhaps undermine, Congress, but Fishkin said he doesn’t think that is necessarily the case.

“[The court] could see that over time, the general public was turning away, and the trajectory showed that most young people favored marriage equality,” Fishkin said. 

Although student inclusion was not a particularly divisive topic at the University, awareness was not lacking among the UT population. According to Reid Long, chemistry doctorate alum and former UT Senate member, the Queer Students Alliance released a report on gay and trans issues on campus around the same time.

Long said he recalls a Student Government resolution filed in 2007 in support of domestic partner benefits. The resolution, according to Long, was most likely passed in response to a changing social climate after Texas’ ban on gay marriage in 2005.


According to a report by the Government Accountability Office, lawsuits brought by the Civil Rights Division to enforce laws prohibiting race or sex discrimination in employment fell from about 11 per year under the Clinton administration to about six per year under the Bush administration. “It was a hallmark study for that particular group in regards to campus climate,” Long said.

Regardless of national issues, on-campus policies became increasingly aimed at better representing the diverse student population. According to Long, for example, many of the applications for student leadership organizations were amended to be more inclusive to minority students.

“As far as I know, they still do their applications the same way,” Long said. “I always thought the campus was pretty good about handling things like that.”

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. 

When the Supreme Court decided two weeks ago to invalidate the heart of the Voting Rights Act (“VRA”) of 1965, the decision sent shockwaves throughout the state, where the court’s decision prompted Attorney General Greg Abbott to announce just hours after the ruling that Texas’ voter ID law, which had been rejected by a federal panel as “retrogressive,” would be reinstated. The court’s decision and Abbott’s subsequent actions are bad for Texans and bad for UT students.

Prior to the court’s ruling, several states with a history of racial discrimination at the ballot box, including Texas, were required to report changes to their election law to the federal government for approval. (The preclearance requirements in Section 5 of the VRA were not thrown out, only the coverage definitions in Section 4, without which Section 5 can’t be enforced barring congressional intervention.) It was during this approval process that the Texas voter ID law, which puts in place stricter identification requirements for voters at the ballot box, was struck down by the federal court.

According to law professor Joseph Fishkin, the court’s majority opinion, written by Chief Justice John Roberts, implies that discrimination and disenfranchisement in the United States are not what they once were. Roberts was joined by Justices Scalia, Kennedy, Thomas and Alito in the 5-4 ruling.

The court’s decision to imply that racism is no longer present at the polls is surprising: If this were true, why did Texas Attorney General Greg Abbott immediately reinstate Texas’ disenfranchising Voter ID law after learning of the ruling?

At first glance, Texas’ voter ID law seems like common sense; the attorney general has stated that the state simply wants to ensure that voters are U.S. citizens before they cast their ballot. But the San Antonio Express-News reported last year that fewer than five complaints of voter fraud were filed with Abbott’s office between 2008 and 2010. According to law professor Sanford Levinson, there is a widespread lack of evidence of voter fraud, which forces the question: Did the lawmakers who put in place voter ID do so to protect against voter fraud or to disenfranchise voting blocs?

Under the law, a driver’s license, military ID, passport, state personal ID card, citizenship certificate, passport, concealed handgun license or a special "election identification certificate" (which would be provided by the DPS free of cost) would suffice. But a student ID? No such luck. Consequently, this law would handicap the ability of UT students, who often visit the ballot box on campus in between classes, to vote. Traditionally, students have been able to vote on campus by showing a picture ID, including a UT ID card. But under the voter ID law, students with only a student ID would be unable to vote, leaving students without driver’s licenses out in the cold.

Requiring students to show this kind of proof in order to exercise their most basic right as Americans is not only shameful, but far-reaching—many students will simply forgo the entire process.

Students, of course, are not the only group who would be affected. Fishkin notes that a number of other groups would be disenfranchised. Elderly voters, minority voters and, generally speaking, people who lack the means to obtain the type of identification required by the new law would be obstructed from voting.

Despite the court’s decision, the battle is far from over. Law professor Stefanie Lindquist keenly notes that Section 2 of the VRA, as well as the Equal Protection Clause of the 14th Amendment remain as legal bulwarks against discrimination, as they allow for individuals to sue over discriminatory voting laws.

But this opportunity for potentially changing the law yet again in the future is a consolation prize at best. In the meantime, the court’s decision has put the participation of voters across the state at risk.

Kapasi is a finance junior from Sugarland.

Editor's Note: An earlier version of this column did not state that an election identification certificate, personal ID card, citizenship certificate or passport could also be used as identification at the polls under the Voter ID law. This information has been added for clarification. 


Texas at the center of Voting Rights Act decision

Gov. Rick Perry could decide to veto voting maps recently completed by the Texas Legislature as a result of today's decision from the Supreme Court, calling a new special session and allowing conservatives to pass new maps that would have not passed under the now defunct Section 4 of the 1965 Voting Rights Act.

The Supreme Court ruled this morning that Section 4, which specifies what locations require federal review on their voting laws under Section 5 of the Voting Rights Act, to be unconstitutional as it stands. The law previously stated that places with trends of "historic discrimination" against minority voting rights would be required to seek clearance from a federal court, but today the court has ruled such standards could only be examined under "present conditions" of discrimination.

The special session, which was created to address the issue of redistricting, is now grinding into a last minute debate as Senate Democats fillabuster a highly contentious bill on abortion regulations before the session ends at midnight. 

Texas is one of several mostly Southern states that were previously required to seek preclearance.

The state's voter ID law requiring a government-issued identification at voting polls, which was made unenforceable by a now overruled federal court order, is also still on the books and will go into effect today, said assistant law professor Joseph Fishkin.

Fishkin, who teaches on voting rights and constitutional law, said civil rights groups could still appeal to Section 2 of the Voting Rights Act, which allows for the creation of lawsuits when voter discrimination is alleged, to halt new voting maps created by a veto from Perry.

"For the next few years there's likely going to be a regime where there will be no Section 5 coverage anywhere," Fishkin said, who believes it is unlikely the current Congress will redefine the Section 4 requirements of the Voting Rights Act. "Gov. Perry has to decide what he is going to do about this issue, which could put Texas at center of national attention about the impact of this ruling, today."

Students line up on Guadalupe to vote in the 2008 presidential election. A proposed Texas voter ID law that would have required voters to present a government-issued form of identification in this years election was denied by a U.S. District Court yesterday. (Daily Texan file photo)

Photo Credit: Debbie Finley | Daily Texan Staff

A U.S. District Court shot down a proposed Texas voter ID law that would require citizens to produce government-issued photo identification to vote in the November election, sparking the fury of top Texas legislators. Texas is appealing the decision to the U.S. Supreme Court.

Proponents of the law have argued it will prevent voter fraud. Under the Voting Rights Act, states with a history of discriminatory voting practices that want to pass voter ID laws must prove any changes would not negatively affect minority voters. Opponents of voter ID laws say they prevent minorities from voting because many don’t have a photo ID and live too far away from a center that can issue one.

Billy Calve, director of Hook the Vote, a student government agency that works to increase student voting participation, said the new voter ID law would have been an extra burden on students, because it would have required a civilian’s driver’s license address to match his or her voter registration address.

“If you reside at a West Campus apartment or a dorm on campus, you would have had to make sure your driver’s license address matched that,” Calve said. “For many students, that is not the case. Students would have had to go out and get their driver’s license changed to match their Austin address.”

Assistant law professor Joseph Fishkin said the case focused primarily on the rights of minority citizens, not student rights.

However, Fishkin said the state decided against several amendments to the voter ID law that would have made it less strict and less likely to get struck down. One of them was to allow student IDs to be used as photo IDs at the polls.

“I wouldn’t make too much of a big deal of this, but the state legislature’s decision not to allow student IDs is one of the things that came back to haunt the state,” Fishkin said.

University Democrats President Leslie Tisdale said striking down the law is good news for students.

“It’s our job to back this decision by the courts because it really shows them that students are right here, we’re ready to vote and we want the opportunity to vote,” Tisdale said.

Christopher Elam, spokesperson for the Republican Party of Texas, said by striking down the law, the federal court was ignoring states’ rights.

“This administration and Eric Holder and his justice department have declared war upon the voter ID law, and they have made that an election-year issue in order to drive a wedge into the Republican Party,” Elam said.

Texas Attorney General Greg Abbott released a statement Thursday stating Texas would appeal the federal court’s decision to the U.S. Supreme Court, claiming similar voter ID laws were already upheld in other states.

“Today’s decision is wrong on the law and improperly prevents Texas from implementing the same type of ballot integrity safeguards that are employed by Georgia and Indiana — and were upheld by the Supreme Court,” Abbott said.

But Fishkin said the voter ID law in Texas came to the court under different circumstances.

“There are some important differences. The biggest difference is that case in Indiana was not brought under the Voting Rights Act,” Fishkin said. “And frankly, not every place has the kind of distance that we have, and a lot of these states don’t have this big of Hispanic populations either.”

The same federal court will review Abbott’s claim that Section 5 of the Voting Rights Act is unconstitutional. Section 5 requires states with a history of discriminatory voting practices to get preclearance from the federal government before changing any voting law. 

Printed on August 31, 2012 as: "District Court rejects TX voter ID law"