Students for Fair Admissions, Inc. v. Univ. of Tex. at Austin

• Decision Date: 20 June 2022
• Docket Number: 21-50715
• Parties: STUDENTS FOR FAIR ADMISSIONS, INCORPORATED, Plaintiff—Appellant, v. UNIVERSITY OF TEXAS AT AUSTIN; James B. Milliken, Chancellor of the University of Texas System in his Official Capacity; Steven Leslie, Executive Vice Chancellor for Academic Affairs of the University of Texas System in his Official Capacity; Daniel H. Sharphorn Vice Chancellor and General Counsel of the University of Texas System in his Official Capacity; Jay Hartzell, Interim President of the University of Texas at Austin in his Official Capacity; Board of Regents of the Texas State University System ; David J. Beck, Member of the Board of Regents in his Official Capacity; Christina Melton Crain, Member of the Board of Regents in her Official Capacity; Kevin P. Eltife, Member of the Board of Regents in his Official Capacity; R. Steven Hicks, Member of the Board of Regents in his Official Capacity; Jodie Lee Jiles, Member of the Board of Regents in his Official Capacity; Janiece Longoria, Member of the Board of Regents in her Official Capacity; Nolan Perez Member of the Board of Regents in his Official Capacity; Kelcy L. Warren, Member of the Board of Regents in his Official Capacity; James C. (Rad) Weaver, Member of the Board of Regents in his Official Capacity; Daniel Jaffe, Interim Executive Vice President and Provost; Rachelle Hernandez, Senior Vice Provost for Enrollment Management and Student Success; Miguel Wasielewski, Executive Director for Office of Admissions, Defendants—Appellees, The Black Student Alliance; The Texas Orange Jackets; Texas NAACP; Adaylin Alvarez; Morgan Bennett; Liz Kufour; Brianna Mallorie McBride; Desiree Ortega-Santiago; Nima Rahman; Alexandra Trujillo; Rosaleen Xiong, Intervenor Defendants—Appellees
• Court: U.S. Court of Appeals — Fifth Circuit

37 F.4th 1078

STUDENTS FOR FAIR ADMISSIONS, INCORPORATED, Plaintiff—Appellant,

v.UNIVERSITY OF TEXAS AT AUSTIN; James B. Milliken, Chancellor of the University of Texas System in his Official Capacity; Steven Leslie, Executive Vice Chancellor for Academic Affairs of the University of Texas System in his Official Capacity; Daniel H. Sharphorn Vice Chancellor and General Counsel of the University of Texas System in his Official Capacity; Jay Hartzell, Interim President of the University of Texas at Austin in his Official Capacity; Board of Regents of the Texas State University System ; David J. Beck, Member of the Board of Regents in his Official Capacity; Christina Melton Crain, Member of the Board of Regents in her Official Capacity; Kevin P. Eltife, Member of the Board of Regents in his Official Capacity; R. Steven Hicks, Member of the Board of Regents in his Official Capacity; Jodie Lee Jiles, Member of the Board of Regents in his Official Capacity; Janiece Longoria, Member of the Board of Regents in her Official Capacity; Nolan Perez Member of the Board of Regents in his Official Capacity; Kelcy L. Warren, Member of the Board of Regents in his Official Capacity; James C. (Rad) Weaver, Member of the Board of Regents in his Official Capacity; Daniel Jaffe, Interim Executive Vice President and Provost; Rachelle Hernandez, Senior Vice Provost for Enrollment Management and Student Success; Miguel Wasielewski, Executive Director for Office of Admissions, Defendants—Appellees,The Black Student Alliance; The Texas Orange Jackets; Texas NAACP; Adaylin Alvarez; Morgan Bennett; Liz Kufour; Brianna Mallorie McBride; Desiree Ortega-Santiago; Nima Rahman; Alexandra Trujillo; Rosaleen Xiong, Intervenor Defendants—Appellees

No. 21-50715

United States Court of Appeals, Fifth Circuit.

FILED June 20, 2022

Cameron Thomas Norris, Steven Christopher Begakis, John Michael Connolly, William S. Consovoy, Thomas McCarthy, Consovoy McCarthy, P.L.L.C., Arlington, VA, for Plaintiff-Appellant.

Matthew Christopher Powers, Esq., Litigation Counsel, William Christian, Marianne W. Nitsch, Graves, Dougherty, Hearon & Moody, P.C., Austin, TX, for Defendants-Appellees.

David G. Hinojosa, Genevieve Bonadies Torres, Lawyers' Committee for Civil Rights Under Law, Washington, DC, Neil K. Gilman, Hunton Andrews Kurth, L.L.P., Washington, DC, Brian Pidcock, Hunton Andrews Kurth, L.L.P., Houston, TX, for Intervenor Defendants-Appellees.

Before King, Jones, and Duncan, Circuit Judges.

Stuart Kyle Duncan Circuit Judge:

Students for Fair Admissions, Inc. (SFFA), a nonprofit organization committed to ending race discrimination in higher-education admissions, sued the University of Texas at Austin (UT)¹ over its use of race in admitting students. The district court concluded SFFA has standing but dismissed its claims as barred by res judicata. It reasoned that SFFA's claims were already litigated in a prior challenge to UT's admissions policies. See Fisher v. Univ. of Tex. (Fisher II) , 579 U.S. 365, 136 S.Ct. 2198, 195 L.Ed.2d 511 (2016) ; Fisher v. Univ. of Tex. (Fisher I) , 570 U.S. 297, 133 S.Ct. 2411, 186 L.Ed.2d 474 (2013). We agree that SFFA has standing, but we disagree that res judicata bars its claims. The parties here are not identical to or in privity with those in Fisher , and this case presents different claims. Accordingly, we reverse the district court's judgment and remand for further proceedings.

I.

A.

Before 1997, UT used race in deciding which students to admit. After we held the practice unconstitutional, UT stopped. See Hopwood v. Texas , 78 F.3d 932, 948, 955 (5th Cir. 1996). From 1998 to 2004, UT instead used a facially race-neutral process to evaluate applicants not automatically admitted under the "Top Ten Percent Plan," which the legislature enacted in 1997.² In 2004, UT swiftly reintroduced race into admissions after the Supreme Court sanctioned its limited use in Grutter v. Bollinger , 539 U.S. 306, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003). See Fisher II , 579 U.S. at 395, 136 S.Ct. 2198 (Alito, J., dissenting) ("UT leapt at the opportunity to reinsert race into the process.").

In 2008, Abigail Fisher, a white high school senior who was denied admission, challenged UT's admissions policy under the equal protection clause and Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d et seq. Fisher received outside help in her lawsuit. A nonprofit legal-defense foundation, the Project on Fair Representation (PFR), covered her legal fees. Edward Blum, PFR's executive director and a longtime family friend, recommended attorneys for Fisher and served as a "conduit" between her and them. Fisher, however, retained ultimate control over her case.

In 2016, the Supreme Court rejected Fisher's claims and held that UT's admissions practices, as of 2008, satisfied strict scrutiny. See Fisher II , 579 U.S. at 388, 136 S.Ct. 2198. The Court's inquiry was "limited to the narrow question" of whether Fisher "was denied equal treatment at the time her application was rejected." Id. at 380, 136 S.Ct. 2198. The Court stressed that, moving forward, UT may "not necessarily ... rely on that same policy without refinement" and has an "ongoing obligation to engage in constant deliberation and continued reflection regarding its admissions policies." Id. at 388, 136 S.Ct. 2198.

B.

Formed in 2014, SFFA is a registered 501(c)(3) organization incorporated in Virginia. Its stated purpose is "to defend human and civil rights secured by law, including the right of individuals to equal protection under the law, through litigation and any other lawful means."

SFFA's governing documents set forth membership policies, organizational structure, and leadership positions. Its articles of incorporation provide that, pursuant to the Virginia Nonstock Corporation Act (the "Act"), SFFA "shall have no members." Its initial bylaws, adopted contemporaneously with the articles, provide for "no members within the meaning of the Act" but for "one class of affiliate members with rights, privileges, and obligations established by the Board of Directors." "Affiliate members," the bylaws explain, "have no voting rights and are not members within the meaning of the Act." Affiliate membership is open to "[a]ny individual who seeks to support the purposes and mission of the Corporation ..., subject to any additional standards that may be set from time to time by the Board." The bylaws provide for no fewer than three but no more than five directors, to be elected "by an affirmative vote of a majority of the directors then in office." At its founding, SFFA's directors were Blum, Fisher, and Fisher's father Richard.

In SFFA's early stages, individuals could become affiliate members by submitting identifying information and expressing an intent to join. To encourage participation and aid recruitment, SFFA did not require membership fees or dues. Membership grew steadily by the hundreds in its first year, before exploding to 20,000 members in June 2015. To account for this rapid growth, SFFA amended its bylaws to provide for "one class of members, referred to as General Members, which shall not be ‘members’ within the meaning of the Act and shall have only the rights specifically set forth in these Bylaws." SFFA also began requiring a one-time assessment of $10 as membership dues. And, to give members "a direct voice in [SFFA's] decision-making, including the management and direction of ongoing litigation," SFFA expanded its board to five directors, one of whom would be elected by its members.

SFFA's current board consists of Blum, Fisher, Fisher's father, Joe Zhou, and Eva Guo. Each is serving a two-year term. Blum also serves as SFFA's president and is responsible for "day-to-day operations, membership recruitment, and efforts to publicize its mission." Fisher also serves as secretary and "is responsible for keeping an accurate record of the proceedings of all [board] meetings." Fisher's father also serves as treasurer and "is responsible for the financial management of the organization." Mr. Zhou is a parent of a child who experienced racial discrimination in applying to college. And Ms. Guo is a parent of younger children who fears they will suffer racial discrimination in the admissions process. Collectively, the board manages SFFA's business and affairs, including its litigation.

C.

In July 2020, SFFA sued UT, claiming the use of race in its admissions policy violates the Fourteenth Amendment, sections 1981 and 1983, and Title VI. See U.S. Const. amend. XIV, § 1, cl. 4; 42 U.S.C. §§ 1981, 1983, 2000d et seq. It sued on behalf of its members, including two white students who were denied admission to UT and who are able and ready to transfer there if UT stops discriminating.

SFFA alleges UT's current admissions policy has "changed dramatically" from the 2008 policy challenged in Fisher. It alleges "there has been a steady increase in racial diversity since 2008," as 51% of students were white in 2008 and only 36% of students were white in 2018. It also claims that "direct statistical evidence" shows UT "racially balances its entering freshman class to ensure a specific proportion[ ]" of black students, i.e. , a "quota." Specifically, UT's admitted class was 5–6% black in each of the last ten years. Further, while UT previously reported that "racial/ethnic status" was merely a factor "considered" in admissions decisions, UT now characterizes it as a "very important" factor.

Over SFFA's objection, the district court bifurcated discovery. It allowed UT to take discovery on its anticipated standing and res judicata challenges, to be raised in dispositive motions, but prohibited SFFA from taking discovery on the merits of its claims. UT deposed SFFA and its two members who were denied admission, and SFFA produced documents and responded to interrogatories.

In March 2021, UT moved for summary judgment or dismissal based on lack of standing, res judicata , and collateral estoppel. UT argued SFFA was...