AUSTIN, Texas (AP) — An appeals court is scheduled to consider a lawsuit Tuesday that challenges the use of race and ethnicity in undergraduate admissions policies at the University of Texas at Austin.
A three-judge panel of the New Orleans-based 5th U.S. Circuit Court of Appeals is set to take up the case filed in 2008 by two white students who were denied admission. The lawsuit claims that the policies violate the Constitution and federal law.
U.S. District Judge Sam Sparks of Austin dismissed the lawsuit last year, ruling that the university's use of race and ethnicity as factors in admissions is constitutionally acceptable. The students appealed.
Affirmative action policies were effectively banned in 1996 by the 5th Circuit ruling known as Hopwood. But in 2003, the U.S. Supreme Court upheld affirmative action at the University of Michigan's law school in a decision known as the Grutter opinion. UT resumed considering race starting with its 2005 entering class.
The case now being appealed represents the first challenge of a university's affirmative action policies since the Grutter opinion, according to a report in Tuesday's Austin American-Statesman.
"Our argument is relatively simple," said Edward Blum , director of the Washington-based Project on Fair Representation, which opposes the use of race in public policy and which is helping to pay the plaintiffs' legal bills.
"We believe that the reintroduction of race and ethnicity in the admissions process by the University of Texas is unconstitutional and falls outside of the parameters where race is allowed to be used."
UT and the Texas attorney general's office, which is defending the university's policy, argue that it does not breach the guidelines.
"The university believes that its admission system is well within the guidance the Supreme Court has given us in the Grutter case," said Patti Ohlendorf , UT's vice president for legal affairs.
In dismissing the case last year, Sparks said UT's admission system includes some race-neutral policies, such as a state law guaranteeing admission to students who rank in the top 10 percent of their high school graduating class and scholarships aimed at underrepresented parts of the state.
"But, despite those efforts, UT still found diversity lacking in its student body and thus decided to consider race as part of its admissions process," the judge wrote.
Abigail Fisher and Rachel Michalewicz filed the lawsuit, claiming that UT's race-conscious policy violated their civil and constitutional rights. By then, the two had enrolled elsewhere.
Most entering freshman at UT are admitted because they are among the top 10 percent in their high school class. The remaining openings are filled by consideration of each applicant's "personal achievement index" — where race is a "special circumstance" — and academic index.