UPDATED Thursday 10:10 a.m. Lawyers for Abigail Noel Fisher, the young woman at the center of the University of Texas affirmative action case, argued in a filing Wednesday in the Fifth Circuit Court that the university can no longer challenge her right to pursue her challenge, saying that the Supreme Court already has rejected arguments against her right to sue. The filing also contended that the Supreme Court meant for the Circuit Court, not a federal district judge, to make the follow-up ruling on whether the admissions program is unconstitutional. The document urged the Circuit Court to call for new briefs and then rule.

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Lawyers for the University of Texas, making a new move to keep intact the eight-year-old freshman admissions program that makes some e of race, have asked a lower court to consider ending the case without a final ruling on constitutionality. In a motion filed Tuesday in the Fifth Circuit Court, the state’s flagship university sought to have the case sent back to a district court to follow up on the Supreme Court’s decision last month putting the program in doubt.

The university made clear that it plans to urge the district judge to dismiss the challenge by a young white woman who claimed she was denied admission because of her race. Abigail Fisher of Sugar Land, the motion noted, has graduated from another college since the Circuit Court’s prior ruling in her case, upholding the admissions policy. Moreover, it argued, she does not even have a valid claim to the return of the one hundred dollars in admissions fees she had paid.

The Circuit Court ruling was overturned by the Supreme Court in the case of Fisher v. University of Texas on June 24. The Court ruled that the appeals court had used a flawed analysis, and said the case should be reconsidered on a somewhat tougher standard of review that will give less force to the university’s own defense of its program.

Ms. Fisher’s lawyers oppose the plea to have the case returned to district court, the motion noted. They will be filing shortly their own views on the next step in the case.

Aside from the university’s argument that the district court is the proper place to consider whether the case should be dismissed for lack of an ongoing controversy, the motion contended that there may be a need to bring out further facts as the district court applied the method of analysis mandated by the Supreme Court. The university stressed, though, that it believed it had already made a sufficient case to justify the program’s constitutionality.

It is simply a matter of “common sense,” the university argued, to let the district court be the first to do further analysis of the admissions program and its validity. Moreover, it added, the Circuit Court would benefit from having the district judge canvass the case further before any further appeals are pursued.

Disclosure: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, represented the American Association of Law Schools as an amicus in this case. The author of this post operates independently of that law firm.

Posted in Fisher v. University of Texas at Austin, Featured, Merits Cases

Recommended Citation: Lyle Denniston, Texas college case moves ahead (UPDATED), SCOTUSblog (Jul. 24, 2013, 5:11 PM), http://www.scotusblog.com/2013/07/texas-college-case-moves-ahead/