A western nonprofit, public-interest legal foundation today urged the U.S. Court of Appeals for the Fifth Circuit to hear and reverse a ruling by a three-judge panel upholding the right of the University of Texas at Austin to deny admission to two Texas coeds because of their race.  Mountain States Legal Foundation (MSLF), which prevailed in a landmark civil rights decision by the Supreme Court, argued in a friend of the court brief that the panel's ruling is in conflict with legal precedent set by the U.S. Supreme Court.  MSLF's amicus curiae brief was filed in support of the coeds who asked the Fifth Circuit to rehear the case en banc.  On January 18, the panel upheld an earlier ruling by a Texas federal district court that the University of Texas could use race to admit students.  Both the district court and the three-judge panel relied on a controversial 2003 ruling by the U.S. Supreme Court; however, Judge Emilio M. Garza, in his concurring opinion argued that the 2003 ruling was flawed and should be abandoned.

"The entire court must rehear this case because the panel failed to use 'strict scrutiny' as the Supreme Court requires, but instead deferred to the university by the panel's use of a 'serious good faith' test," said William Perry Pendley, MSLF president.  "The Constitution demands otherwise."

In 1996, the U.S. Court of Appeals for the Fifth Circuit held that diversity was not a compelling governmental interest and that the University of Texas Law School's use of race for admission was unconstitutional.  In response, Texas enacted a law requiring all Texas students graduating in the top ten percent of their class to be admitted to the University of Texas.  As a result, the University of Texas was able to achieve the racial diversity that had existed on campus prior to the Fifth Circuit's ruling. 

          On June 23, 2003, the Supreme Court abrogated the Fifth Circuit's decision when it ruled, in Grutter v. Bollinger, that racial diversity could be a compelling interest for the University of Michigan School of Law.  Thereafter, the University of Texas began using race as a basis for granting admission. 

          Abigail Noel Fisher of Sugar Land, who graduated in the top 12 percent of her class, and Rachel Multer Michalewicz of Buda, who graduated in the top 11 percent of her class, applied for but were denied admission.  In April 2008, they sued the University and its officials in the U.S. District Court for the Western District of Texas in Austin, alleging that they were denied the right to compete for admission on an equal footing with minority students in violation of the U.S. Constitution's equal protection guarantee.  On August 17, 2009, the district court ruled in favor of the University of Texas based upon the Supreme Court's holding in Grutter.     

Mountain States Legal Foundation, founded in 1977, is a nonprofit, public-interest legal foundation dedicated to individual liberty, the right to own and use property, limited and ethical government, and the free enterprise system.  Its offices are in suburban Denver, Colorado.

<i>Fisher v. University of Texas at Austin</i>, No. 09-50822 (5th Cir.)