The “Top Ten Percent” admissions rule in Texas has survived its latest attack but the plaintiff and the organization supporting her vow to appeal to the United States Supreme Court. The Fifth Circuit issued an en banc order November 12, denying a rehearing of their decision in the affirmative action case of Fisher v. University of Texas at Austin. The Order leaves in place the July 2014 decision of the Fifth Circuit which upheld the use of race as a criteria in university admission.
Abigal Noel Fisher, who is Caucasian, sued the University of Texas in 2008 after she was rejected for admission. She sued on the grounds that she was denied admission because of race.
The judges who dissented to the denial of the rehearing were Judges Emilio M. Garza, Edith H. Jones, Jerry E. Smith, Edith Brown Clement, and Priscilla R. Owen. The ten judges who denied rehearing did not give a written reason for doing so.
Judge Garza wrote a brief dissent for the five judges who would have allowed a rehearing. In writing his one-page dissent, Judge Garza referred to his 26-page dissent to the July 2014 opinion.
Judge Garza wrote that in denying a full-court rehearing of the July opinion, the majority was “effectively adopting” its opinion which rejected the United States Supreme Court’s direction in Fisher v. University of Texas at Austin. Garza opined that Fisher, “requires that this court not defer to the University’s claim that its use of racial classifications in its admissions process is narrowly tailored to its stated goal.” He wrote “[c]learly the panel majority dutifully bows to Fisher’s requirements, but then fails to conduct the strict scrutiny analysis it requires, thus returning to the deferential models of Regents of University of California v. Bakke, and Grutter v. Bollinger.”
Judge Garza referred to his lengthy July dissent where “I explain and analyze with some detail the University’s position, in which it fails to furnish any articulated meaning for its stated goal of ‘critical mass.’” Citing to the United States Supreme Court decision in Fisher, Garza writes “[b]y not providing a clear definition of that end goal, the University eliminates any chance that this court could conduct the ‘most rigid scrutiny’ of its race-conscious admissions program.” He continues, “[a]nalytically, Fisher requires that the University’s stated goal not be confined to the assessment of the University’s decision to pursue diversity, but also reach the narrow tailoring analysis. The University must prove that the means chosen by the University to attain diversity are narrowly tailored to that goal.”
The United States District Court had upheld the University’s race-conscious admission policy in a summary judgment.
The Fisher case has been making its way through the appellate courts since it was filed in 2008.
The case was appealed to the Fifth Circuit which found that the Grutter decision required courts to give substantial deference to the University in: (1) the definition of the compelling interest in the benefits of diversity; and (2) in determining whether its specific plan was narrowly tailored to achieve its goal. The Fifth Circuit upheld the University of Texas’ admissions criteria.
The case was appealed to the United States Supreme Court in the fall of 2011, and in early 2012, the Supreme Court agreed to hear the case.
The issue at the United States Supreme Court was whether its decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Grutter v. Bollinger, permits the University of Texas at Austin to use race in undergraduate admissions decisions.
In the summer of 2013 in a 7-1 decision (Justice Elena Kagan had recused herself), the Supreme Court vacated the Fifth Circuit’s decision and remanded the case back to the Court. Justices Antonin Scalia and Clarence Thomas filed concurring opinions. Justice Ruth Bader Ginsburg dissented. The Supreme Court held that the Fifth Circuit did not hold the University to the standard of “strict scrutiny” set out in Grutter and Bakke and its decision to affirm the summary judgment of the district court was incorrect.
Various groups and individuals have filed amicus curiae (“Friend of the Court”) briefs in support of Ms. Fisher’s appeals. They have been filed by the American Center for Law and Justice, American Civil Rights Union, Asian American Legal Foundation and the Judicial Education Project, Cato Institute , California Association of Scholars, Connecticut Association of Scholars, Center for Constitutional Jurisprudence, Reason Foundation, Individual Rights Foundation, and American Civil Rights Foundation, Center for Individual Rights, Current and Former Federal Civil Rights Officials, Gail Heriot, Peter Kirsanow & Todd Gaziano, Members of the United States Commission on Civil Rights, Judicial Watch and Allied Educational Foundation, Louis D. Brandeis Center for Human Rights Under Law, 80-20 National Asian-American Educational Foundation, National Federation of Indian American Associations, Indian American Forum for Political Education, and Global Organization of People of Indian Origin, Mountain States Legal Foundation, Pacific Legal Foundation, Center for Equal Opportunity, American Civil Rights Institute, National Association of Scholars, and Project 21,Texas Association of Scholars, The Honorable Allen B. West, Member of Congress and Lieutenant Colonel, United States Army (Ret.) and others.
The Project on Fair Representation is providing the legal representation for Ms. Fisher. Edward Blum, the President of the organization released a statement that “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. This case will be appealed back to the US Supreme Court.” Blum continued stating “The judges had to correct the Fifth 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.” He also stated that “Judge Garza’s dissent from the three-judge panel was faithful to the Supreme Court’s instructions and we believe his opinion will eventually prevail.”
University of Texas at Austin President Bill Powers issued a statement after the Fifth Circuit’s denial of rehearing stating “We are pleased with the ruling of the Court of Appeals for the Fifth Circuit. 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. 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.”
Ms. Fisher has 90 days to appeal the denial of her rehearing to the United States Supreme Court.
Lana Shadwick is a contributing writer and legal analyst for Breitbart Texas. Follow her on Twitter @LanaShadwick2.