Fisher v. Univ. of Tex. At Austin

758 F.3d 633

Abigail Noel FISHER, Plaintiff–Appellant

v.UNIVERSITY OF TEXAS AT AUSTIN; David B. Pryor, Executive Vice Chancellor for Academic Affairs 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 Member 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, for Defendants–Appellees.

No. 09–50822.

United States Court of Appeals, Fifth Circuit.

July 15, 2014.

Bert Walter Rein, William Consovoy, Esq., Claire Evans, Thomas R. McCarthy, Esq., Wiley Rein, L.L.P., Washington, DC, Paul M. Terrill, III, Esq., Terrill Firm, Austin, TX, for Plaintiff–Appellant.

Gregory George Garre, Maureen E. Mahoney, Esq., Latham & Watkins, L.L.P., Lori Ann Alvino McGill, Quinn, Emanuel, Urquhart & Sullivan, L.L.P., Washington, DC, James C. Ho, Esq., Gibson, Dunn & Crutcher, L.L.P., Dallas, TX, for Defendants–Appellees.

Gordon Morris Fauth, Jr., Litigation Law Group, Alameda, CA, Ashley C. Keller, Bartlit, Beck, Herman, Palenchar & Scott, L.L.P., Chicago, IL, James Scott Detamore, Esq., Mountain States Legal Foundation, Lakewood, CO, Timothy Mason Sandefur, Joshua Paul Thompson, Pacific Legal Foundation, Sacramento, CA, Tovah R. Calderon, Diana Katherine Flynn, Sasha M. Samberg–Champion, Esq., Linda Frances Thome, U.S. Department of Justice, Vincent Adrian Eng, Asian American Justice Center, Sri Srinivasan, Jonathan D. Hacker, O'Melveny & Myers, L.L.P., Martin Robert Michaelson, David McMichael Ginn, Hogan Lovells US, L.L.P., Andrew M. Grossman, Baker & Hostetler, L.L.P., David Charles Frederick, Esq., Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C., Washington, DC, Deborah Nicole Archer, Director, New York Law School, Leticia V. Smith–Evans, Deuel Ross, Legal Defense & Educational Fund, Inc., New York, NY, Julie Ann Su, Asian Pacific American Legal Center, Los Angeles, CA, David G. Hinojosa, Nina Perales, Esq., Mexican–American Legal Defense & Educational Fund, San Antonio, TX, Alison Elisabeth Schmauch, Counsel, U.S. Commission on Civil Rights, Arlington, VA, George Allan Van Fleet, Nicholas Gerhart Grimmer, Attorney, McDermott Will & Emery, L.L.P., Houston, TX, Charles Ernest Baruch, Law Office of Chad Baruch, Rowlett, TX, Robert Earl Toone, Jr., Foley Hoag, L.L.P., Boston, MA, for Amicus Curiae.

Appeal from the United States District Court for the Western District of Texas.

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Abigail Fisher brought this action against the University of Texas at Austin,¹ alleging that the University's race-conscious admissions program violated the Fourteenth Amendment. The district court granted summary judgment to UT Austin and we affirmed. The Supreme Court vacated and remanded, holding that this Court and the district court reviewed UT Austin's means to the end of a diverse student body with undue deference; that we must give a more exacting scrutiny to UT Austin's efforts to achieve diversity. With the benefit of additional briefing, oral argument, and the ordered exacting scrutiny, we affirm the district court's grant of summary judgment.

I

A

Fisher applied to UT Austin for admission to the entering class of fall 2008. ² Although a Texas resident, she did not graduate in the top ten percent of her class. She therefore did not qualify for automatic admission under the Top Ten Percent Plan, which that year took 81% of the seats available for Texas residents.³ Instead, she was considered under the holistic review program,⁴ which looks past class rank to evaluate each applicant as an individual based on his or her achievements and experiences, and so became one of 17,131 applicants ⁵ for the remaining 1,216 seats ⁶ for Texas residents.

UT Austin denied Fisher admission. Kedra B. Ishop, the Associate Director of Admissions at the time of Fisher's application,⁷ explained that “[g]iven the lack of space available in the fall freshman class due to the Top 10% Plan, ... based on [her] high school class rank and test scores,” Fisher could not “have gained admission through the fall review process.” ⁸ As Ishop explained, any applicant who was not offered admission either through the Top Ten Percent Law or through an exceptionally high Academic Index (“AI”) score is evaluated through the holistic review process. ⁹ The AI is calculated based on an applicant's standardized test scores, class rank, and high school coursework.¹⁰ Holistic review considers applicants' AI scores and Personal Achievement Index (“PAI”) scores. The PAI is calculated from (i) the weighted average score received for each of two required essays and (ii) a personal achievement score based on a holistic review of the entire application, with slightly more weight being placed on the latter.¹¹ In calculating the personal achievement score, the staff member conducts a holistic review of the contents of the applicant's entire file, including demonstrated leadership qualities, extracurricular activities, honors and awards, essays, work experience, community service, and special circumstances, such as the applicant's socioeconomic status, family composition, special family responsibilities, the socioeconomic status of the applicant's high school, and race.¹² No numerical value is ever assigned to any of the components of personal achievement scores, and because race is a factor considered in the unique context of each applicant's entire experience, it may be a beneficial factor for a minority or a non-minority student.¹³

To admit applicants through this holistic review, the admissions office generates an initial AI/PAI matrix for each academic program, wherein applicants are placed into groups that share the same combination of AI and PAI scores.¹⁴ School liaisons then draw stair-step lines along this matrix, selecting groups of students on the basis of their combined AI and PAI scores. This process is repeated until each program admits a sufficient number of students.

Fisher's AI scores were too low for admission to her preferred academic programs at UT Austin; Fisher had a Liberal Arts AI of 3.1 and a Business AI of 3.1.¹⁵ And, because nearly all the seats in the undeclared major program in Liberal Arts were filled with Top Ten Percent students, all holistic review applicants “were only eligible for Summer Freshman Class or CAP [Coordinated Admissions Program] admission, unless their AI exceeded 3.5.” ¹⁶ Accordingly, even if she had received a perfect PAI score of 6, she could not have received an offer of admission to the Fall 2008 freshman class.¹⁷ If she had been a minority the result would have been the same.

B

This reality together with factual developments since summary judgment call into question whether Fisher has standing.¹⁸ UT Austin argues that Fisher lacks standing because (i) she graduated from another university in May 2012, thus rendering her claims for injunctive and declaratory relief moot, ¹⁹ and (ii) there is no causal relationship between any use of race in the decision to deny Fisher admission and the $100 application fee—a non-refundable expense faced by all applicants that puts at issue whether Fisher suffered monetary injury.²⁰

Two competing and axiomatic principles govern the resolution of this question. First, jurisdiction must exist at every stage of litigation. A litigant “generally may raise a court's lack of subject-matter jurisdiction at any time in the same civil action, even initially at the highest appellate instance.” ²¹ Even if “defendants failed to challenge jurisdiction at a prior stage of the litigation, they are not prohibited from raising it later.” ²² Indeed, the “independent establishment of subject-matter jurisdiction is so important that [even] a party ostensibly invoking federal jurisdiction may later challenge it as a means of avoiding adverse results on the merits.” ²³

Second, the “mandate rule,” a corollary of the law of the case doctrine, “compels compliance on remand with the dictates of a superior court and forecloses relitigation of issues expressly or impliedly decided by the appellate court.” ²⁴ The Supreme Court, like all Article III courts, had its own independent obligation to confirm jurisdiction, and where the lower federal court “lack[ed] jurisdiction, [the Supreme Court has] jurisdiction on appeal, not of the merits, but merely for the purpose of correcting the error of the lower court in entertaining the suit.” ²⁵

UT Austin's standing arguments carry force,²⁶ but in our view the actions of the Supreme Court do not allow our reconsideration. The Supreme Court did not address the issue of standing, although it was squarely presented to it.²⁷ Rather, it remanded the case for a decision on the merits, having reaffirmed Justice Powell's opinion for the Court in Regents of the University of California v. Bakke²⁸ as read by the Court in Grutter v. Bollinger.²⁹ It affirmed all of this Court's decision except its application of strict scrutiny. The parties have identified no changes in jurisdictional facts occurring...