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UT Austin files petition for rehearing en banc in Hopwood case

The University of Texas at Austin today (Jan. 5) announced that it has filed a petition for a rehearing en banc with the U.S. Court of Appeals for the Fifth Circuit in the case of Cheryl J. Hopwood vs. the State of Texas, asking the full 14-member court to review the case.

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AUSTIN, Texas—The University of Texas at Austin today (Jan. 5) announced that it has filed a petition for a rehearing en banc with the U.S. Court of Appeals for the Fifth Circuit in the case of Cheryl J. Hopwood vs. the State of Texas, asking the full 14-member court to review the case.

In a decision announced on Dec. 21, a three-judge panel of the Court of Appeals issued an important procedural ruling in the case. It reversed an injunction by U.S. District Judge Sam Sparks on procedural grounds, but it sent the case back to Judge Sparks to consider whether the injunction should be re-entered. Such an injunction normally must be in place before the University can appeal to the entire Fifth Circuit or the U.S. Supreme Court.

The petition asks the Fifth Circuit Court sitting as a whole to vacate the actions of the three-judge panel as well as an earlier decision of another three-judge panel which wrote on behalf of the Court.

“Since the day the (Dec. 21) opinion came out, we have had a chance to review fully the legal issues with our complete legal team,” said Patricia Ohlendorf, vice president for institutional relations and legal affairs at UT Austin. “We agree that the information provided earlier about the impact on our policies remains the same. We decided, however, the case might be expedited by en banc review. We recognize that such reviews are not often granted, but if that is the case we will be back before the District Court as we would have been otherwise.”

In this case, several applicants challenged the admissions policy of the School of Law at UT Austin that allowed for the consideration of race as one of many factors in the decision for admission. In a 1996 opinion in the case, the Fifth Circuit Court prohibited UT Austin from using race or ethnicity as a factor in its admissions process. Before the 1996 decision, it was common practice in Texas universities to take account of race and ethnicity as part of their policies toward building minority enrollment.

In a Dec. 21 decision, the U.S. Court of Appeals determined several important issues in favor of the University:

  • That the plaintiffs would not have been admitted to the UT School of Law under standard merit-based criteria

  • That no money damages be awarded to the plaintiffs

  • That no additional attorneysÌ fees be awarded to the plaintiffs

The Court of Appeals did not authorize any change in the current admissions policy at UT Austin. It noted that the U.S. Supreme Court’s decision in the case of Bakke vs. University of California “clearly stands for the proposition that the government can use racial preferences under some circumstances.” However, this three-judge panel held that it is bound by the 1996 decision prohibiting consideration of race in the admissions process.

Copies of the Petition for Rehearing en banc are available at http://www.law.utexas.edu/hopwood/ or by calling Ms. Maria Spitler at (512) 471-1241.