On June 17, by a 9-7 vote, the 5th U.S. Circuit Court of Appeals refused en banc rehearing of Fisher, et al. v. University of Texas. On Jan. 18, a three-judge panel of the 5th Circuit had affirmed the constitutionality of the way the University of Texas at Austin considered race in its admissions process in 2008. Abigail Fisher and Rachel Michalewicz, two white applicants, allege in Fisher that racial considerations by UT admissions officials disadvantaged them when the school denied them 2008 admission. Voting against the en banc rehearing were Judges Carolyn Dineen King, W. Eugene Davis, Emilio M. Garza, Fortunato P. Benavides, Carl E. Stewart, James L. Dennis, Edward C. Prado, Leslie H. Southwick and James E. Graves. Voting for en banc rehearing were Chief Judge Edith H. Jones and Judges E. Grady Jolly, Jerry E. Smith, Edith B. Clement, Priscilla R. Owen, Jennifer Walker Elrod and Catharina Haynes. Jones penned a dissenting opinion, which Jolly, Clement, Owen and Smith joined. Jones wrote that the panel opinion in Fisher does not comport with the U.S. Supreme Court’s 2003 decision in Grutter v. Bollinger, regarding the University of Michigan School of Law admission policies. Fisher “gives a green light to all public higher education institutions in this circuit, and perhaps beyond, to administer racially conscious admissions programs without following the narrow tailoring that Grutter requires. Texas today is increasingly diverse in ways that transcend the crude White/Black/Hispanic calculus that is the measure of the University’s race conscious admissions program,” Jones wrote. Patricia "Patti" Ohlendorf, vice president for legal affairs at UT, did not immediately return a call seeking comment, nor did Bert Rein, a partner in Wiley Rein in D.C. who represents Fisher and Michalewicz.
-- Miriam Rozen