Fifth Circuit Denies En Banc Review in Fisher Remand

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The Fifth Circuit has denied en banc review by a vote of 10-5 in its  Order in  Fisher v. University of Texas at Austin.  

Recall that in a divided opinion in July, a Fifth Circuit panel held that the university met its burden of demonstrating the narrowing tailoring necessary to satisfy strict scrutiny under the Equal Protection Clause.

Recall also that the United States Supreme Court had reversed the Fifth Circuit's  original finding in favor of the University (affirming the district judge) and  remanded the case for a  "further judicial determination that the admissions process meets strict scrutiny in its implementation."  The  opinion,  authored by Justice Kennedy - - - with only Justice Ginsburg dissenting and Justice Kagan recused - - -specified that the "University must prove that the means chosen by the University to attain diversity are narrowly tailored to that goal"  of diversity and the University should receive no judicial deference on that point.

Judge Emilio Garza, the  Senior Judge who dissented from the panel opinion also wrote a very brief dissenting opinion from en banc review, which was joined by Judges Jones, Smith, Clement, and Owen.  Judge Garza contends that while the "panel majority dutifully bows" to the United States Supreme Court's requirements in Fisher, it "then fails to conduct the strict scrutiny analysis" the opinion requires "thus returning to the deferential models" of Regents of University of California v. Bakke and Grutter v. Bollinger.

A petition for writ of certiorari is certain; the grant of that petition is less certain.