5th Circuit Court of Appeals denies to hear Fisher v. UT en banc

Alex Wilts

The 5th U.S. Circuit Court of Appeals declined Abigail Fisher’s request Wednesday for a full panel of judges to hear her affirmative action case against the University.

Of the court’s 15 judges, five voted in favor of rehearing the case while 10 voted against it, according to the official decision released by the 5th Circuit.  

Fisher, a rejected UT applicant, petitioned for an en banc hearing in July following a 2-1 decision from a three-judge 5th Circuit Court panel, which ruled in favor of the University’s race-conscious admissions process. This is the second time the court has denied Fisher’s petition for an
en banc.

“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,”  said Edward Blum, director of the Project on Fair Representation, in a statement. The Project on Fair Representation has provided funding for Fisher’s case.

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 case eventually reached the Supreme Court in 2012, but it was sent back to the 5th Circuit Court in 2013. The Supreme Court 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.

Even after the court’s ruling Wednesday, Blum said Fisher’s case would be appealed back to the Supreme Court.

“The justices had to correct the 5th 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,” Blum said.

President William Powers Jr. said the University is pleased with the appeals court’s ruling.

“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,” Powers said in a statement. “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.”