Last month, a panel of the Fifth Circuit Court of Appeals upheld the affirmative action policies on the University of Texas in a case brought by Abigail Fisher that had previously made it all the way to the U.S. Supreme Court.
In June 2013, the Supreme Court, in Fisher v. the University of Texas at Austin, reversed the decision of the Fifth Circuit Court of Appeals which upheld the race-sensitive admissions plan at the University of Texas at Austin. The Supreme Court ruled that the Appeals Court did not obtain sufficient information from the university as to whether the plan met the strict guidelines for a “narrowly tailored” plan as outlined in the 2003 Grutter decision. It sent the case back to the Appeal Court, ordering it to use “strict scrutiny” to determine if the university had complied with the “narrowly tailored” guidelines issued in the Grutter case. In the July decision, the Appeal Court panel said that they were “persuaded” that university had met the Grutter guidelines.
But the plaintiff was quick to respond and has now filed an appeal for the entire Fifth Circuit bench to hear the case. In the petition for rehearing, attorneys for the plaintiff stated “The Supreme Court instructed the panel to: (1) apply strict scrutiny without deference; (2) faithfully enforce the strict-scrutiny principles applicable in other settings; and (3) evaluate whether the University of Texas (“UT”) can prevail based on the existing record. The panel instead allowed UT to propose a rationale on appeal, conducted its own fact finding to support that rationale, and then deferred to UT’s assertion that pursuit of it was necessary and narrowly tailored.”