A federal appeals court handed down a win for UT in a lawsuit examining its consideration of race in admissions decisions, but the case could still have life if the plantiffs take it to the U.S. Supreme Court.

Two white students denied admission to UT in 2008 filed Fisher v. Texas, claiming the University’s admission policies violated their equal protection rights guaranteed by the 14th Amendment. Friday, the 5th Circuit Court of Appeals denied the plantiffs’ request for a rehearing by all 16 of the court’s eligible judges after a three-judge panel ruled in favor of UT in January. U.S. District Judge Sam Sparks originally ruled in favor of UT in 2009.

The University’s defense focused on the 2003 U.S. Supreme Court case Grutter v. Bollinger that upheld the University of Michigan Law School’s consideration of race during admissions as a tool to ensure a diverse student body. In January, Judge Emilio Garza voted against a rehearing and ruled in favor of UT. Garza agreed that the University met the standard set forth in the Grutter case but questioned the soundness of that case’s ruling.

The 5th Circuit judges voted 9-7 to deny a rehearing. Bert Rein, the plaintiff’s lead attorney, said the close vote could provide fodder for a successful case against UT before the U.S. Supreme Court. Garza’s ruling also provides support, Rein said.

“That would indicate that at least eight members of the court are concerned that a proper constitutional result wouldn’t support the Texas system whether under Grutter or otherwise,” Rein said.  

A request for a hearing by the U.S. Supreme Court is the only option remaining for the case. Rein said he and his clients are still considering whether to file the case with the Court.    

Patricia Ohlendorf, vice president for legal affairs, said she is confident in the University’s position if the plantiffs seek review from the U.S. Supreme Court because of the favorable rulings so far and a legal team including the current and former solicitors general of Texas.

The state’s Top 10 Percent rule means the majority of incoming freshmen enter through an application process that doesn’t take race into account. Because the rule made UT more diverse, the plantiffs questioned the need to consider race in admission decisions for students not admitted through the rule.

Since the beginning of the case, the rule has been adapted to cap the number of students admitted automatically.

“We will watch for the impact over the next few years as the modifications are implemented and will take that into account as we continue to review our admissions process,” Ohlendorf said.  

The National Association for the Advancement of Colored People Legal Defense and Educational Fund filed a brief on behalf of UT’s Black Student Alliance and in support of UT’s policy before each ruling on the case. Joshua Civin, an attorney for the fund, said the decisions have supported his organization’s stance that universities should provide visibly open paths to leadership.

“In our view, the nation’s future depends on students being exposed to diversity in their formative educational experiences,” Civin said.