FISHER v. UNIVERSITY OF TEXAS AT AUSTIN

No. 09-50822.

644 F.3d 301 (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; Barry D. Burgdorf, Vice Chancellor and General Counsel 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 Chair 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.

June 17, 2011.


Attorney(s) appearing for the Case

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

Jonathan Franklin Mitchell , James C. Ho , Joseph David Hughes , Asst. Sol. Gen., Austin, TX, for Defendants-Appellants.

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

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

Timothy Mason Sandefur , Sacramento, CA, for Amici Curiae Pacific Legal Found., American Civil Rights Institute, Center for Equal Opportunity and National Ass'n of Scholars.

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

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

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

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

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

Joshua Ian Civin , Asst. Counsel, NAACP Legal Defense, Washington, DC, Debo P. Adegbile , NAACP Legal Defense & Educational Fund, New York City, for Amici Curiae Black Student Alliance at the University of Texas at Austin and NAACP Legal Defense and Educational Fund Inc.

Lawrence J. Fox , Drinker, Biddle & Reath, L.L.P., Philadelphia, PA, for Amici Curiae, American Council of Education, American Ass'n of Community Colleges, American Ass'n of State Colleges and Universities, American Ass'n of University Professors, American College Personnel Ass'n, Association of Am. Colleges and Universities, American Dental Education Ass'n, Association of Am. Universities, Association of Am. Medical Colleges, Association of Public and Land-Grant Universities, Association of Research Libraries, Hispanic Ass'n of Colleges and Universities, National Ass'n of College and University Business Officers and National Ass'n of Independent Colleges and Universities.

Before KING, HIGGINBOTHAM and GARZA, Circuit Judges.


PER CURIAM:

The court having been polled at the request of one of the members of the court and a majority of the judges who are in regular active service and not disqualified not having voted in favor (FED. R. APP. P. and 5TH CIR. R. 35), the Petition for Rehearing En Banc is DENIED.

Voting for en banc rehearing were: Chief Judge Edith H. Jones, Judge E. Grady Jolly, Judge Jerry E. Smith, Judge Edith B. Clement, Judge Priscilla R. Owen, Judge Jennifer Walker...

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