Fisher v. University of Texas at Austin

645 F.Supp.2d 587

Abigail Noel FISHER and Rachel Multer Michalewicz, Plaintiffs, v. UNIVERSITY OF TEXAS AT AUSTIN, et al., Defendants.

No. A-08-CA-263-SS.

United States District Court, W.D. Texas, Austin Division.

August 17, 2009.

COPYRIGHT MATERIAL OMITTED

Bert W. Rein (argued), Thomas R. McCarthy, Suzzette Rodriguez Hurley, Wiley Rein LLP, Washington, DC, Paul M. Terrill, Joshua Katz, The Terrill Firm, P.C., Austin, TX, for Plaintiffs.

James C. Ho, Solicitor General (argued), Joseph D. Hughes, Assistant Solicitor General, Mishell B. Kneeland, Assistant Attorney General, Austin, TX, for Defendants.

ORDER

SAM SPARKS, District Judge.

BE IT REMEMBERED on June 12, 2009 the Court called the above-styled cause for a hearing on all pending matters, the parties appeared through counsel, and the Court addressed Plaintiffs' Motion for Partial Summary Judgment [# 94], Defendants' Cross-Motion for Summary Judgment [#96], Plaintiffs' Combined Reply Memorandum in Support of Motion for Partial Summary Judgment and Memorandum in Opposition to Defendants' Cross-Motion for Partial Summary Judgment ("Plaintiffs' Reply and Resp.") [# 98, 99], Defendants' Reply memorandum in Support of Cross-Motion for Summary Judgment [# 102], Amicus Curiae Lawrence Longoria, Jr., Nathan Bunch, and Texas League of United Latin American Citizens' (hereinafter collectively referred to as "LULAC") Motion for Leave to File Amicus Curiae Brief In Support of Defendants Out of Time [#104], and Plaintiffs' Response to LULAC's Motion for Leave [# 107]. Plaintiffs do not object to LULAC's participation as amici, thus LULAC's Motion for Leave to File Amicus Curiae Brief In Support of Defendants Out of Time [# 104] is GRANTED; however, Plaintiffs' objection to the new evidence submitted in support of LULAC's brief is well taken. The Court will sustain the objection and thus consider only LULAC's legal arguments and arguments based on the properly-submitted evidence in this case, and will not consider the new evidence submitted by LULAC. Also filed in relation to the cross motions for summary judgment and considered by the Court are LULAC's Amicus Curiae Brief in Support of Defendants [# 104] and Amicus Curiae NAACP Legal Defense & Educational Fund, Inc., The Black Student Alliance at the University of Texas at Austin, Chad Stanton, Anthony Williams, Ariel Barrett, C.J. Davis, Devon Robinson, Trenton Stanton, and Eric Stanton's (hereinafter collectively referred to as "NAACP") Amicus Curiae Memorandum in Support of Defendants' Cross-Motion for Summary Judgment and In Opposition to Plaintiffs' Motion for Partial Summary Judgment [# 103]. After considering the motions, the responses, the replies, the amicus briefs, the relevant law, and the case file as a whole, the Court enters the following opinion and orders.

BACKGROUND

I. Procedural History

On April 7, 2008, Plaintiff Abigail Fisher filed suit in the Western District of Texas. On April 17, 2008, Ms. Fisher was joined in her suit by Rachel Michalewicz. Plaintiff Fisher is a Caucasian female who attended Stephen F. Austin High School in Sugar Land, Texas. Plaintiff Michalewicz is a Caucasian female who attended Jack C. Hays High School in Buda, Texas. Plaintiffs both applied for admission to the University of Texas at Austin ("UT" or the "University") in the fall of 2008. Both were rejected.¹ Plaintiffs sued multiple defendants: the State of Texas; UT; Mark G. Yudof, Chancellor of the University of Texas System in his official capacity; 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; the Board of Regents of the Texas State University System; John W. Barnhill, Jr., H. Scott Caven, Jr., James R. Huffines, Janiece Longoria, Colleen McHugh, Robert B. Rowling, James D. Dannenbaum, Paul Foster, and Printice L. Gary, as Members of the Board of Regents in their official capacities; and Bruce Walker, Vice Provost and Director of Undergraduate Admissions in his official capacity (collectively "Defendants").² Plaintiffs contend the "admissions policies and procedures currently applied by Defendants discriminate against Plaintiffs on the basis of their race in violation of their right to equal protection of the laws under the Fourteenth Amendment of the United States Constitution, U.S. Const, amend. XIV, § 1, and federal civil rights statutes, 42 U.S.C. §§ 1981, 1983, and 2000d et seq." Pls.' Am. Compl. [# 30] ¶ 2. Plaintiffs seek declaratory and injunctive relief, including evaluation of Plaintiffs' applications for admission under race-neutral criteria, and attorneys' fees and costs.

Following the Court's denial of Plaintiffs' motion for preliminary injunction, the parties agreed to a scheduling order bifurcating the trial into two phases: liability and remedy. The Court permitted two groups, LULAC and NAACP, to submit amici briefs in lieu of intervention. On June 12, 2009, the Court held a hearing on the parties' motions for summary judgment regarding liability, specifically on the issue of whether UT's admissions policies and practices violate the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.

II. History of Undergraduate Admissions at the University of Texas at Austin

The University of Texas at Austin ("UT") is a public education institution authorized by Article VII § 10 of the Texas Constitution and funded by the governments of Texas and the United States. Pls.' Second Am. Compl. [# 85] ¶ 18. It is a highly selective university, receiving applications from approximately four times more students each year than it can enroll in its freshman class. Defs.' Cross-Mot. for Summ. J. Statement of Facts ¶ 2. For the entering class of 2008, to which Plaintiffs sought admission, 29,501 students applied to UT. Less than half, 12,843, were admitted and 6,715 ultimately enrolled. Defs.' Cross-Mot. for Summ. J. Tab 8, Aff of Gary M. Lavergne ("Lavergne Aff.") Ex. C, Implementation and Results of the Texas Automatic Admissions Law (HB 588) at the University of Texas at Austin, October 28, 2008 at 6 (Table 1) ("2008 Top Ten Report"). As the flagship university of Texas, UT describes its admissions goal as enrolling a meritorious and diverse student body with the expectation that many of its graduates will become state and national leaders. Defs.' Cross-Mot. for Summ. J. Tab 11, Affidavit of N. Bruce Walker ("Walker Aff.") Ex. A, Proposal to Consider Race and Ethnicity in Admissions, June 25, 2004 at 24-25 ("2004 Proposal"); Defs.' Cross-Mot. for Summ. J. Tab 5, Dep. of N. Bruce Walker ("Walker Dep.") at 9:10-12. To accomplish this, the University continuously develops internal procedures to supplement the judicial and legislative mandates governing its admissions process. Defs.' Cross-Mot. for Summ. J. Tab 2, Dep. of Kendra Ishop ("Ishop Dep.") at 9:13-18. The complex system currently in use at UT and challenged by the Plaintiffs is the product of these shifting internal and external policies. Id. In order to provide context to the current system, the Court will briefly review the changes in UT's admissions process from 1995 to today.

a. UT Admissions Pre- and Post-Hopwood v. Texas

Until 1996, UT admitted students based on a two-tiered affirmative action system. Pls.' Mot. for Part. Summ. J. Mem. at 3. The first element, still in use today, is known as a the Academic Index ("AI"), and is a computation of each applicant's predicted freshman grade point average ("PGPA") based on the student's high school class rank and standardized test scores (SAT or ACT). Id. The second element considered prior to the Fifth Circuit's decision in Hopwood v. Texas, 78 F.3d 932 (5th Cir.1996), was the applicant's race, as UT believed exclusive reliance on PGPA would yield a class with "unacceptably low diversity levels." Lavergne Aff. Ex. A, Implementation and Results of the Texas Automatic Admissions Law (HB 588) at The University of Texas at Austin, December 2006 (revised December 2007) at 2 ("2006 Top Ten Report"). As a result of this system, UT's 1996 enrolled freshman class, the last class admitted using this process, included 4.1 percent African-American student enrollment and 14.7 percent Hispanic student enrollment. Pls.' Mot. for Part. Summ. J. Statement of Facts ¶ 13 (citing 2006 Top Ten Report at 4-5 (Tables 1, 1a)).

The Fifth Circuit terminated this system with its decision in Hopwood v. Texas, holding unconstitutional the use of race-based criteria in admissions decisions at The University of Texas School of Law. 78 F.3d at 957. The Court concluded diversity in education does not constitute a compelling governmental interest, a conclusion the Texas Attorney General interpreted as prohibiting the use of race as a factor in admissions by any undergraduate or graduate program at Texas state universities, including UT. Hopwood at 944; Tex. Att'y Gen. Ltr. Op. No. 97-001 at 18. Consequently, beginning with the 1997 admissions cycle UT eliminated its affirmative action program. 2008 Top Ten Report at 4. Although the University retained its use of the AI, it replaced consideration of race with a Personal Achievement Index ("PAI"). Defs.' Cross-Mot. for Summ. J. Statement of Facts ¶¶ 86-87. The PAI was determined by a holistic review of applications intended to identify and reward students whose merit as applicants was not adequately reflected by their class rank and test scores. Id. at ¶ 86; Walker Dep. at 31:7-9.

Although this AI/PAI system was facially race-neutral in accordance with Hopwood, it was also partially designed to increase minority enrollment. Walker Dep. at 31:10-12. Many of the special circumstances considered in computing applicants' PAIs disproportionately affect minority candidates, including the socio-economic status of the student's family,...