[JURIST] The US Court of Appeals for the Fifth Circuit [official website] on Wednesday denied [opinion, PDF] Abigail Fisher’s petition for a rehearing en banc in the affirmative action case Fisher v. University of Texas at Austin [SCOTUSblog backgrounder]. The judges for the Fifth Circuit voted 10-5 to deny the petition. The case is on remand [JURIST report] from a June 2013 decision [opinion, PDF] by the US Supreme Court [official website], which held the Fifth Circuit did not apply a strict enough standard in upholding a ruling for the university’s race-conscious admissions policy. In the initial proceeding in July the Fifth Circuit ruled [JURIST report] the University of Texas at Austin may continue to consider race as part of its enrollment criteria. After Wednesday’s decision, legal experts suggested [SCOTUSblog op-ed] the case may be headed back to the US Supreme Court for a second review. The president of the University of Texas at Austin, William Powers Jr., released this statement [text], following the decision. Powers is a named party in the suit.
The intersection between state legislatures, the federal constitution, and the admission policies of public universities has created significant legal conflict surrounding affirmative action programs [JURIST backgrounder] in the US in recent years. The Fisher case began when Abigail Fisher, a Caucasian student, was denied undergraduate admission to University of Texas at Austin in 2008 and subsequently mounted this legal challenge against the university’s admissions policy, which allows the university to consider race and ethnicity during admissions processing. In 2011 the US Court of Appeals for the Fifth Circuit ruled [JURIST report] the policy did not violate Fisher’s rights to equal protection under the Fourteenth Amendment and federal civil rights statutes, affirming a lower court decision which granted summary judgment to the university. In another affirmative action proceeding to reach the US Supreme Court, Schuette v. Coalition to Defend Affirmative Action [SCOTUSblog backgrounder], the court held the judiciary lacks the authority to overturn a Michigan voter initiative that amended the state’s constitution to prohibit race and sex-based discrimination or preferential treatment in public university admissions decisions. In 2012 Oklahoma voters approved [JURIST report] a ballot measure [State Question No. 759, PDF] to eliminate affirmative action programs within the state.