FISHER v. UNIVERSITY OF TEXAS AT AUSTIN

No. 09-50822.

631 F.3d 213 (2011)

Abigail Noel FISHER; Rachel Multer Michalewicz, Plaintiffs-Appellants, v. UNIVERSITY OF TEXAS AT AUSTIN; David B. Pryor, Executive Vice Chancellor for Academic Affairs in His Official Capacity; William Powers, Jr., President of the University of Texas at Austin in His Official Capacity; Board of Regents of the University of Texas System; R. Steven Hicks, as Member of the Board of Regents in His Official Capacity; William Eugene Powell, as Member of the Board of Regents in His Official Capacity; James R. Huffines, as Member of the Board of Regents in His Official Capacity; Janiece Longoria, as Member of the Board of Regents in Her Official Capacity; Colleen McHugh, as Member of the Board of Regents in Her Official Capacity; Robert L. Stillwell, as Member of the Board of Regents in His Official Capacity; James D. Dannenbaum, as Member of the Board of Regents in His Official Capacity; Paul Foster, as Member of the Board of Regents in His Official Capacity; Printice L. Gary, as Member of the Board of Regents in His Official Capacity; Kedra Ishop, Vice Provost and Director of Undergraduate Admissions in Her Official Capacity; Francisco G. Cigarroa, M.D., Interim Chancellor of the University of Texas System in His Official Capacity, Defendants-Appellees.

United States Court of Appeals, Fifth Circuit.

January 18, 2011.


Attorney(s) appearing for the Case

Bert W. Rein (argued), William Spencer Consovoy , Claire Evans , Thomas R. NcCarthy , Wiley Rein, L.L.P., Washington, DC, Paul M. Terrill, III , Terrill Firm, Austin, TX, for Plaintiffs-Appellants.

Jonathan Franklin Mitchell , James C. Ho, Sol. (argued), Joseph David Hughes , Asst. Sol. Gen., Austin, TX, for Defendant and Defendants-Appellees.

Gordon Morris Fauth , Lit. Law Group, Alameda, CA, Ashley C. Keller , Bartlit, Beck, Herman, Palenchar & Scott, L.L.P., Chicago, IL, for Asian Am. Legal Found., Amicus Curiae.

James Scott Detamore , Mountan States Legal Found., Lakewood, CO, for Mountain States Legal Found., Amicus Curiae.

Timothy Mason Sandefur , Pac. Legal Found., Sacramento, CA, for Pac. Legal Found., Am. Civ. Rights Inst, Ctr. For Equal Opp. and Nat. Ass'n of Scholars, Amici Curiae.

Linda Frances Thome , Diana Katherine Flynn , U.S. Dept. of Justice, Civ. Rights Div.—App. Section, Washington, DC, for U.S., Amicus Curiae.

Deborah Nicole Archer, Dir. , New York Law Sch., New York City, for New York Law Sch., and Racial Justice Project, Amici Curiae.

Julie Ann Su , Asian Pac. Am. Legal Ctr., Los Angeles, CA, for Asian Pac. Am. Legal Ctr., Asian Am. Inst., Asian Law Caucus and Asian Am. Jusrice Ctr., Amici Curiae.

Vincent Adrian Eng , Asian Am. Justice Ctr., Washington, DC, for Asian Am. Justice Ctr., Amicus Curiae.

Sri Srinivasan , Jonathan D. Hacker , O'Melveny & Myers, L.L.P., Washington, DC, David G. Hinojosa , Nina Perales, Reg. Counsel, Mexican Am. Legal Defense Fund, San Antonio, TX, for Texas League of United Latin Am. Citizens, Amicus Curiae.

Joshua Ian Civin , Asst. Counsel (argued), NAACP Legal Defense, Washington, DC, Debo P. Adegbile , Anurima Bhargava, Dir. , Kimberly Anna Liu , Legal Defense & Educational Fund, New York City, for Black Student Alliance at the University of Texas at Austin, and NAACP Legal Defense & Educational Fund, Amici Curaie.

Lawrence J. Fox , Drinker, Biddle & Reath, L.L.P., Philadelphia, PA, for Am. Council of Ed., Am. Ass'n of Community Colleges, Am. Ass'n of State Colleges & Universities, Am. Ass'n of University Professors, Am. College Personnel Ass'n, Ass'n of Am. Colleges & Universities, Am. Dental Ed. Ass'n, Ass'n of Am. Universities, Ass'n of Am. Med. Colleges, Ass'n of Pub. & Land-Grant Universities, Ass'n of Research Libraries, Hispanic Ass'n of Colleges & Universities, Nat. Ass'n of Colleges & University Business Officers and Nat. Ass'n of Ind. Colleges & Universities, Amici Curiae.

Before KING, HIGGINBOTHAM and GARZA, Circuit Judges.


PATRICK E. HIGGINBOTHAM, Circuit Judge:

We consider a challenge to the use of race in undergraduate admissions at the University of Texas at Austin. While the University has confined its explicit use of race to the elements of a program approved by the Supreme Court in Grutter v. Bollinger,1 UT's program acts upon a university applicant pool shaped by a legislatively-mandated parallel diversity initiative that guarantees admission...

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