Lawyers for the plaintiff in the Fisher v. University of Texas at Austin case filed a brief on Tuesday asking the full U.S. Court of Appeals for the Fifth Circuit to overturn a decision by a panel of three of its judges in favor of the university, The Chronicle of Higher Education reported.
Earlier this month, the panel of judges upheld UT Austin's consideration of race in admissions. Tuesday's appeal of that decision argues that the appeals court panel disobeyed the U.S. Supreme Court's orders on how to evaluate the admission policy.
The brief says that the Supreme Court instructed the Fifth Circuit to apply strict scrutiny to the admissions policy based on the existing record in the case, but the panel's 2-to-1 ruling in favor of Texas instead allowed the university to propose a new rationale for the policy and accepted that rationale based on new, unproven factual assertions.
The panel's majority accepted the university's argument, not made previously, that admissions officers needed to consider applicants' race to ensure that more of its black and Hispanic students came from integrated, high-performing high schools, the brief says. No evidence in the record establishes that such minority students contribute to the education offered there any more than do the minority students admitted otherwise, the brief argues.
The brief contends that, "at every turn, the majority accepted UT's circular legal arguments, post-hoc rationalizations, and unsupported factual assertions."
The university has yet to respond to the appeal, which is seen as likely to return to the U.S. Supreme Court, according to the Chronicle.
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The Chronicle of Higher Education
http://chronicle.com/blogs/ticker/appeal-in-texas-affirmative-action-case-says-judges-disobeyed-supreme-court/82973