Law professors say Fisher case has uncertain future

Alex Wilts

A full appeals court panel may not hear the Fisher v. UT case, according to two law professors at the University.  

In late July, denied University applicant Abigail Fisher asked the U.S. Court of Appeals for the 5th Circuit panel to hear her case one more time.

Her request followed a 2-1 decision from the three-judge 5th Circuit Court panel on July 15, which ruled again in favor of the University’s race-conscious admissions process.

Law professor Joseph Fishkin said, although very few petitions are accepted in circuit courts nationally, Fisher may have a small chance since the 5th Circuit Court has been known to occasionally undertake them. 

However, Fishkin said it is hard to determine the likelihood of Fisher receiving an en banc — meaning a full panel of judges would have to hear her case — since the 5th Circuit is a fairly conservative court, and the last ruling on the case came from a divided panel of judges.

“If they do decide to do it, then that means the whole 5th Circuit gets the case,” Fishkin said. “I’m not sure how much appetite the judges will have to extend it another round.”

Law professor David Gonzalez said en banc reviews are more likely in cases that have not already gone to the Supreme Court.

“It’s hard for me to think they would want to rehear a case,” Gonzalez said.

Edward Blum, director of the Project on Fair Representation, an organization that has provided funding for Fisher’s case, said in an email that Fisher has “high hopes” that the 5th Circuit Court will hear her appeal and rule in her favor. 

Fisher, a Sugar Land resident, sued the University in 2008 when she was denied acceptance to the University because her grades were not high enough to guarantee her admission under the top-10 percent rule. Her defense argued UT’s admissions policy violates the Equal Protection Clause of the 14th Amendment since minority students were accepted with lower grades than hers. 

In 2009, a district court upheld the University’s admission policy as constitutional, a decision that was affirmed by a three-judge 5th Circuit Court panel in 2011. The 5th Circuit Court also denied Fisher’s request for an en banc.

The case eventually reached the Supreme Court in 2012 but was sent back to the 5th Circuit Court in 2013 after it was decided the case did not meet strict scrutiny, meaning the lower courts still needed to determine the actual constitutionality of the University’s race-conscious policy.

“The Supreme Court told the 5th Circuit that it erred in its earlier opinion concerning the proper standard for using race in admissions,” Blum said. “That is a clear victory for [Fisher]. UT was ordered to pay the costs of her appeal to SCOTUS [Supreme Court of the United States].” 

If the 5th Circuit does not grant Fisher’s request for an en banc review, Blum said Fisher would then again attempt to appeal her case back to the Supreme Court.