Fisher v. Univ. of Tex. At Austin

• Decision Date: 18 January 2011
• Docket Number: No. 09–50822.,09–50822.
• Citation: 631 F.3d 213
• Parties: 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.
• Court: U.S. Court of Appeals — Fourth Circuit

631 F.3d 213

264 Ed. Law Rep. 564

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.

No. 09–50822.

United States Court of Appeals, Fifth Circuit.

Jan. 18, 2011.

OPINION TEXT STARTS HEREWest CodenotesValidity Called into DoubtTex. Educ.Code § 51.803.

Bert W. Rein (argued), William Spencer 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, 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, Mountain 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. Justice 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 Curiae.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.Appeal from the United States District Court for the Western District of Texas.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 to Texas students in the top ten percent of their high school class. The ever-increasing number of minorities gaining admission under this Top Ten Percent Law casts a shadow on the horizon to the otherwise-plain legality of the Grutter-like admissions program, the Law's own legal footing aside. While the Law's ultimate fate is not the fare of this suit, the challenge to the Grutter plan here rests upon the intimate ties and ultimate confluence of the two initiatives. Today we affirm the constitutionality of the University's program as it existed when Appellants applied and were denied admission.

Abigail Fisher and Rachel Michalewicz, both Texas residents, were denied undergraduate admission to the University of Texas at Austin for the class entering in Fall 2008. They filed this suit alleging that UT's admissions policies discriminated against them on the basis of race in violation of their right to equal protection under the Fourteenth Amendment and federal civil rights statutes.² They sought damages as well as injunctive and declaratory relief. Proceeding with separate phases of liability and remedy, the district court, in a thoughtful opinion, found no liability and granted summary judgment to the University.

The procedural posture of this case defines the scope of our review. There are no class claims and both students deny intention to reapply to UT.³ It follows that Fisher and Michalewicz lack standing to seek injunctive or forward-looking declaratory relief.⁴ This principle is rote. To obtain forward-looking equitable remedies, a plaintiff must show she faces imminent threat of future injury.⁵ Without that threat, these two applicants only have standing to challenge their rejection and to seek money damages for their injury.⁶

Our focus will be upon the process employed by UT to admit freshmen when Fisher and Michalewicz applied for the class entering Fall 2008, looking to earlier and later years only as they illuminate the rejection of these two applicants.⁷ Our task is burdened by the reality that we are examining a dynamic program administered by a large university subject to government oversight. Indeed, the first of UT's periodic five-year reviews was to begin in the fall of 2009, a review that must engage an array of variables, including an ever-present question of whether to adjust the percentage of students admitted under the two diversity initiatives.

I. GRUTTER V. BOLLINGER

We begin with Grutter v. Bollinger because UT's race-conscious admissions procedures were modeled after the program it approved. In rejecting constitutional challenges to the University of Michigan Law School's admissions program, Grutter held that the Equal Protection Clause did not prohibit a university's “narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.”⁸ Mapping on Grutter, UT evaluates each application using a holistic, multi-factor approach, in which race is but one of many considerations. In granting summary judgment to UT, the district court found that “it would be difficult for UT to construct an admissions policy that more closely resembles the policy approved by the Supreme Court in Grutter,” and “as long as Grutter remains good law, UT's current admissions program remains constitutional.”⁹ Laying aside the Top Ten Percent Law, that observation is indisputably sound.¹⁰

A

Grutter embraced the diversity interest articulated twenty-five years earlier by Justice Powell, who wrote separately in Regents of the University of California v. Bakke.¹¹ This vision of diversity encompassed a broad array of qualifications and characteristics where race was a single but important element.¹² The Michigan Law School designed its admissions program to achieve this broad diversity, selecting students with varied backgrounds and experiences—including varied racial backgrounds—who would respect and learn from one another.¹³ The Court explained:

[The Law School's] policy makes clear there are many possible bases for diversity admissions, and provides examples of admittees who have lived or traveled widely abroad, are fluent in several languages, have overcome personal adversity and family hardship, have exceptional records of extensive community service, and have had successful careers in other fields.¹⁴

The Law School's policy also reaffirmed its “longstanding commitment” to “one particular type of diversity, that is, racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against, like African–Americans, Hispanics and Native Americans, who without this commitment might not be represented in [the] student body in meaningful numbers.”¹⁵

In an effort to ensure representation of minorities, the Law School sought to enroll a “critical mass” of minority students, which would result in increased minority engagement in the classroom and enhanced minority contributions to the character of the School. The Grutter Court endorsed this goal, holding that diversity, including seeking a critical mass of minority students, is “a compelling state interest that can justify the use of race in university admissions.”¹⁶

That the concept of critical mass bears a simple but deceptive label is evidenced by the division of the Justices over its meaning. In his dissent, Chief Justice Rehnquist saw critical mass as only the minimum level necessary “[t]o ensure that the[ ]...