Appeals court will not re-hear race-conscious admissions case en banc

June 20, 2011
Federal Appeals Court Hands Setback to Foes of Race-Conscious Admissions

By Peter Schmidt

The U.S. Court of Appeals for the Fifth Circuit has decided not to rehear a lawsuit challenging the race-conscious admission policy at the University of Texas at Austin, effectively leaving in place a decision by three of its members to uphold the policy, and handing a major setback to affirmative-action critics who argue that the policy is unconstitutional because race-neutral alternatives exist.
More:http://chronicle.com/article/Federal-Appeals-Court-Hands/127957/?sid=pm&utm_source=pm&utm_medium=en

The ruling:

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 09-50822
ABIGAIL NOEL FISHER; RACHEL MULTER MICHALEWICZ,
Plaintiffs – Appellants
v.
UNIVERSITY OF TEXAS AT AUSTIN; DAVID B. PRYOR, Executive Vice
Chancellor for Academic Affairs in His Official Capacity; BARRY D.
BURGDORF, Vice Chancellor and General Counsel in His Official Capacity;
WILLIAM POWERS, JR., President of the University of Texas at Austin in
His Official Capacity; BOARD OF REGENTS OF THE UNIVERSITY OF
TEXAS SYSTEM; R. STEVEN HICKS, as Member of the Board of Regents in
His Official Capacity; WILLIAM EUGENE POWELL, as Member of the
Board of Regents in His Official Capacity; JAMES R. HUFFINES, as Member
of the Board of Regents in His Official Capacity; JANIECE LONGORIA, as
Member of the Board of Regents in Her Official Capacity; COLLEEN
MCHUGH, as Chair of the Board of Regents in Her Official Capacity;
ROBERT L. STILLWELL, as Member of the Board of Regents in His Official
Capacity; JAMES D. DANNENBAUM, as Member of the Board of Regents in
His Official Capacity; PAUL FOSTER, as Member of the Board of Regents in
His Official Capacity; PRINTICE L. GARY, as Member of the Board of
Regents in His Official Capacity; KEDRA ISHOP, Vice Provost and Director
of Undergraduate Admissions in Her Official Capacity; FRANCISCO G.
CIGARROA, M.D., Interim Chancellor of the University of Texas System in
His Official Capacity,
Defendants – Appellees
Appeal from the United States District Court
for the Western District of Texas
United States Court of Appeals
Fifth Circuit
F I L E D
June 17, 2011
Lyle W. Cayce
Clerk

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:
The court having been polled at the request of one of the members of the
court and a majority of the judges who are in regular active service and not
disqualified not having voted in favor (FED. R. APP. P. and 5TH CIR. R. 35), the
Petition for Rehearing En Banc is DENIED.
Voting for en banc rehearing were: Chief Judge Edith H. Jones, Judge E.
Grady Jolly, Judge Jerry E. Smith, Judge Edith B. Clement, Judge Priscilla R.
Owen, Judge Jennifer Walker Elrod, and Judge Catharina Haynes.
Voting against en banc rehearing were: Judge Carolyn Dineen King, Judge
W. Eugene Davis, Judge Emilio M. Garza, Judge Fortunato P. Benavides, Judge
Carl E. Stewart, Judge James L. Dennis, Judge Edward C. Prado, Judge Leslie
H. Southwick, and Judge James E. Graves.*
Upon the filing of this order, the clerk shall issue the mandate forthwith.
See FED. R. APP. P. 41(b).
ENTERED FOR THE COURT:
______________________________
Patrick E. Higginbotham
United States Circuit Judge