Today, the Fifth Circuit Court of Appeals voted to deny Abigail Fisher’s petition for rehearing en banc in the Fisher v. Texas affirmative action case. That vote leaves in place a three-judge panel ruling upholding the use of racial preferences in admissions at the University of Texas-Austin. That decision came after the Supreme Court sent the case back to the lower court for a second look.
Ten Fifth Circuit judges (Chief Judge Stewart and Judges Jolly, Davis, Dennis, Prado, Southwick, Haynes, Graves, Higginson, and Costa) voted against rehearing; five (Jones, Smith, Clement, Owen, and Elrod) voted in favor.
Judge Garza filed a brief dissent from the denial of rehearing, which mostly referred to his dissent from the panel opinion. He said, “Clearly the panel majority dutifully bows to Fisher ’s requirements, but then fails to conduct the strict scrutiny analysis it requires, thus returning to the deferential models of Regents of University of California v. Bakke , 438 U.S. 265 (1978), and Grutter v. Bollinger , 539 U.S. 306 (2003). In my dissent, I explain and analyze with some detail the University’s position, in which it fails to furnish any articulated meaning for its stated goal of ‘critical mass.’.. By not providing a clear definition of that end goal, the University eliminates any chance that this court could conduct the “most rigid scrutiny” of its race-conscious admissions program…. Analytically, Fisher requires that the University’s stated goal not be confined to the assessment of the University’s decision to pursue diversity, but also reach the narrow tailoring analysis. “The University must prove that the means chosen by the University to attain diversity are narrowly tailored to that goal.”
The Project on Fair Representation, which represents Fisher, has pledged to take the case back to the Supreme Court. Edward Blum, president of the Project on Fair Representation, commented that “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. This case will be appealed back to the US Supreme Court… The justices had to correct the Fifth 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.”
When Fisher went up to the Supreme Court the first time, many court watchers were puzzled that it took the Court months to issue a short 7-1 opinion that merely sent the case back to the lower court. A new book by Joan Biskupic, summarized here by journalist Nina Totenberg (and see also this commentary by law professor Josh Blackman) some insight into what may have really happened: Justice Sonia Sotomayor “was furious about where the majority of her colleagues were and what they were going to do in terms of rolling back affirmative action. So she writes this dissent, circulated privately, and it gets the attention of her colleagues ‘who were’ skittish’ about the case to begin with. Behind the scenes, inside the court, writes Biskupic, tense negotiations ensued for nine months, with individual justices assuming critical roles. ‘Among them, Sotomayor as agitator, Stephen Breyer as broker and Kennedy as compromiser.” In the end, the conservatives backed away; the University of Texas affirmative action policy was allowed to stand, at least for the near future; “and there is no public sign of what Sotomayor had wrought.’ If this is true, it will be harder to fashion such a compromise a second time around, meaning that the Court may be forced to confront the constitutionality of Texas’s policy head-on.