UT selects private legal team for Fisher case

Andrew Messamore

At the request of President William Powers Jr., UT has chosen a private legal team with noted experience defending affirmative action to represent the University in Fisher v. University of Texas at Austin.

UT has selected lawyers from the profitable Washington D.C. law firm Latham & Watkins instead of state Attorney General Greg Abbott and his lawyers, who hold the responsibility of representing the University and have defended UT’s position at the district court level through the 5th U.S. Circuit Court of Appeals.

Fisher v. University of Texas was filed in 2008, when two UT students were denied admission. The two contended that the University’s admissions policies, which take race into consideration when not automatically admitted as the top percentile, violated the plaintiff’s right to equal protection of the laws under the 14th Amendment. Rachel Michalewicz has since withdrawn from the suit and Abigail Fisher, now a senior at Lousiana State University, is the only remaining plaintiff.

In a March 29 letter to the state Attorney General’s office requesting the use of outside counsel, Powers stated that the University was at “critical juncture for briefing and argument before the Supreme Court.” Powers also mentioned that such counsel would possess significant experience in higher education and the Supreme Court.

The private legal team includes attorneys Maureen Mahoney and Scott Ballenger, who both successfully defended University of Michigan’s affirmative action program in the landmark 2003 Supreme Court decision Grutter v. Bollinger.

Former U.S. solicitor general Greg Garre, who represented the federal government before the Supreme Court from 2008 to 2009, heads the legal team. Garre has argued a total of 34 cases before the Supreme Court.

The law team was not available for comment on the case since the proceedings are ongoing, Latham & Watkins attorney Scott Ballenger said.

“We’re honored to have been retained by the University in this important case and look forward to presenting our arguments to the Supreme Court,” Ballenger said.

Patricia Ohlendorf, vice president for legal affairs, said the legal team’s experience in successfully briefing and defending Michigan before the Supreme Court in 2003 was “very significant” in their selection.

“UT believes that in order to achieve a diverse student body the admission of those freshmen students not admitted through the percentage plan must be done through a full holistic review that includes consideration of many factors, including race and ethnicity,” Ohlendorf said. “This type of holistic review is based upon the 2003 decision by the Supreme Court in Grutter v. Bollinger.”

UT was “absolutely not” concerned with the previous performance of the state Attorney General’s office in defending the case, Ohlendorf said.

“The Attorney General’s office, specifically Solicitor General Jonathan Mitchell and Assistant Solicitor General Jody Hughes, did excellent work on the case,” Ohelndorf said. “It was agreed that if we could get the team who had briefed and argued Grutter v. Bollinger in the U.S. Supreme Court and their Supreme Court practice leader, that it would bring very special expertise and considerable Supreme Court experience to the case.”

In a response letter to Powers authorizing the use of outside counsel, Daniel Hodge, first assistant Attorney General, said Abbot’s office was “ready, willing and able to continue representing the University of Texas in the Fisher case,” but was still willing to defer this decision to the University.

The Supreme Court is expected to schedule oral arguments in October or early November, and issue a decision in the spring or summer of next year.