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.