Fifth Circuit rekindles challenge to University of Texas admissions policies

(CN) — A group that advocates for an end to racial preferences in college admissions can challenge the University of Texas’ policies, a Fifth Circuit panel ruled Monday, reviving and remanding the case to a federal judge who dismissed it.

The case centers on Abigail Fisher. She sued the University of Texas at Austin in 2008 after it denied her admission despite her 3.59 GPA as a senior and involvement in extracurricular activities, including playing cello in her high school orchestra and helping build homes for Habitat for Humanity.

Citing violations of the 14th Amendment’s equal protection clause and Title VI of the Civil Rights Act of 1964, she argued she would have qualified if UT had not used race as a factor in selecting the portion of its 2008 freshman class who had not automatically qualified under a state law requiring the university to accept students who graduate in the top 10% of their high school classes.

Another key player: Edward Blum, a family friend of Fisher’s parents, who as president of the Project on Fair Representation, paid for her legal fees through the organization, recommended attorneys for her and served as a go-between between her and her counsel.

But in a 4-3 order in 2016, the Supreme Court affirmed lower courts’ dismissal of Fisher’s claims, finding UT’s use of racial classifications and admissions preferences, as applied in 2008, was lawfully tailored to meet a compelling interest: student-body diversity.

In doing so, legal scholars say, the high court built on decades of precedent that said race could be used as one factor among many in vetting applicants.

But before her loss at the Supreme Court, Fisher, who is now in her 30s, laid the groundwork for broadening her fight to help other students rejected by colleges’ affirmative-action policies.

She teamed up with Blum and her father, Richard Fisher, to form Students for Fair Admissions, a Virginia nonprofit, in 2014. Fisher is the group’s secretary, Blum is its president in charge of day-to-day operations and membership recruitment, and Fisher’s father is its treasurer.

Now boasting more than 20,000 members—“students, parents, and others who believe that racial classifications and preferences in college admissions are unfair, unnecessary, and unconstitutional”—the group has gained an audience with a reconstituted Supreme Court, whose majority of conservative justices, experts say, appears poised to go against precedent and deem consideration of race in admissions unlawful.

In in its next term, which starts in October, the court will hear arguments in two challenges led by Students for Fair Admissions: one for Asian-American students who claim Harvard discriminated against them with a subjective standard gauging personality traits, thereby creating a de facto cap for Asians; the other for white and Asian students denied admission by the University of North Carolina.

And a Fifth Circuit panel Monday revived its lawsuit against the University of Texas at Austin.

On behalf of two of its white members who were denied admission to UT, the group sued the school, its chancellor and board of regents in July 2020 in Austin federal court.

Last year, U.S. District Judge Robert Pitman, an Obama appointee, granted UT summary judgment and dismissed the case. He found Fisher’s 2008 lawsuit barred Students for Fair Admissions’ suit because she and Blum exert control over the litigation as directors of the group and the two cases involved the same claim or cause of action.

Though Students for Fair Admissions has two other board members besides Fisher, her father and Blum, Pitman reasoned that because the three collectively have a majority vote they can dictate any of the board’s decisions.

But the Fifth Circuit panel unraveled Pitman’s logic in a 19-page unanimous order written by U.S. Circuit Judge Kyle Duncan, a Trump appointee.

“SFFA cannot be precluded from bringing its own suit merely because one of its directors (Fisher) previously sued in her personal capacity, with the help of a second director (Blum),” Duncan wrote. (Parentheses in original.)

The panel also determined Pitman erred in assuming Fisher, Blum and her father control Students for Fair Admissions by voting as a bloc on the board.

“Fisher and Blum only form a minority, noncontrolling contingent of SFFA’s five-member board. Absent any evidence to the contrary, we presume the remaining three directors ‘will exercise independent judgment,’” Duncan continued.

Students for Fair Admissions’ challenge is also different from Fisher’s 2008 lawsuit by the relief it seeks, the panel noted. Fisher and another white woman who joined her in the 2008 case sought to recover damages for UT denying them admission, while SFFA wants UT ordered to redo its policies so its members can apply to the school without subjection to its race-conscious admissions policies.

The panel credited SFFA’s arguments that although UT claims it uses a holistic approach, with race as one factor, in its admissions decisions, the fact that over the last decade Black students have made up 5 to 6% of its freshman classes indicates it is using a quota system.

Joined in the opinion by U.S. Circuit Judges Edith Jones, a Reagan appointee, and Carolyn Dineen King, a Carter appointee, Duncan also rejected UT’s arguments that Students for Fair Admissions lacks standing to sue on behalf of its members.

Three groups who intervened to defend UT’s admissions policies--the Black Student Alliance, the Texas NAACP and the Texas Orange Jackets—also unsuccessfully argued SFFA lacks standing.

The case now returns to Pitman. But he is expected to pause the case because it hinges on the outcome of the Harvard and University of North Carolina litigation before the Supreme Court. The high court likely will not hand down that decision until the spring or summer of 2023.

UT is represented by Matthew Powers of the Austin firm Graves, Dougherty, Hearon and Moody. He did not respond Monday to a request for comment.

Blum said he is grateful the Fifth Circuit rebooted the case. “It is our hope that the University of Texas and all colleges and universities will end the unfair and unconstitutional use of racial classifications and preferences in admissions,” he added in an emailed statement.

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