STUDENTS

University Admissions

THE APPEALS COURT DECLINED TO RECONSIDER ITS EARLIER DECISION UPHOLDING THE UNIVERSITY OF TEXAS ADMISSIONS POLICY

Case citation:  Fisher v. University of Texas at Austin, __ F.3d __, 2014 WL 6375599 (5th Cir. 2014).

Summary: Abigail Fisher filed suit against the University of Texas at Austin, alleging that the University’s race-conscious admissions program violated the Fourteenth Amendment. Fisher was denied summer and fall admission into the 2008 freshmen class at the University of Texas at Austin.  Instead, she was allowed to participate in UT’s Coordinated Admissions Program (CAP).

Fisher challenged the admissions policy, arguing that it violated her due process and equal protection rights under the Fourteenth Amendment. The district court granted summary judgment to UT and the Fifth Circuit affirmed. The United States Supreme Court, however, vacated the judgment and returned the case to the Fifth Circuit for review of the school’s admissions policy under a more rigorous “strict scrutiny” standard. The Fifth Circuit Court of Appeals again upheld the University’s admissions policies, holding that it met the strict scrutiny standard required by the Supreme Court. [See, Fisher v. University of Texas at Austin, 758 F.3d 633 (5th Cir. 2014); Texas School Administrators’ Legal Digest, July/August 2014]. Fisher then requested rehearing en banc, asking that the entire panel of the Fifth Circuit review the decision.

Ruling: In its most recent ruling, the Fifth Circuit denied Fisher’s request for rehearing by the full court of appeals. In the en banc poll, five judges voted in favor of rehearing, including Circuit Judges Edith H. Jones, Jerry E. Smith, Edith Brown Clement, Priscilla R. Owen, and Jennifer Walker Elrod. Ten judges voted against rehearing, including Chief Judge Carl E. Stewart and Judges Grady Jolly, W. Eugene Davis, James L. Dennis, Edward C. Prado, Leslie H. Southwick, Catharina Haynes, James E. Graves, Stephen A. Higginson, and Greg J. Costa. Judge Emilio M. Garza issued a dissenting opinion from the denial of rehearing en banc, which was joined by Circuit Judges Jones, Smith, Clement, and Owen. The dissent argued that the University failed to furnish any articulated meaning for its stated goal of “critical mass,” thereby eliminating “any chance that this court could conduct the ‘most rigid scrutiny’ of its race-conscious admissions ”

Comments: This one might be headed back to the Supreme Court. Stay tuned.