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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.
Ms. Fisher of Sugar Land, who graduated in the top 12 percent of her class, Rachel Multer and Ms. 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 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.
Ms. Fisher and Ms. Michalewicz filed their opening brief at the U.S. Court of Appeals for the Fifth Circuit on December 21, 2009. On December 28, 2009, MSLF filed a friend of the court brief urging the Fifth Circuit to reverse the ruling of the Texas federal district court. On August 3, 2010, oral arguments were held.
On January 18, 2011, the Fifth Circuit affirmed the district court’s judgment. On February 1, 2011, Ms. Fisher and Ms. Michalewicz filed a petition for rehearing en banc. On February 7, 2011, MSLF filed an amicus curiae brief in support of Ms. Fisher and Ms. Michalewicz. On February 22, 2011, the University of Texas filed an opposition to the petition. On March 4, 2011, the Fifth Circuit accepted MSLF’s amicus curiae brief. On June 17, 2011, over a strong dissent, the Fifth Circuit denied the motion for rehearing en banc. On September 15, 2011, Ms. Fisher filed her petition for writ of certiorari, which MSLF supported with an amicus curiae brief on October 19, 2011.
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