Affirmative action opponents push to revive University of Texas case

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People walk at the University of Texas campus in Austin, Texas, June 23, 2016. REUTERS/Jon Herskovitz

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  • Judges appear receptive to reviving lawsuit against University of Texas at Austin
  • Case is similar to lawsuits against Harvard, University of North Carolina

(Reuters) - A federal appeals court on Tuesday appeared likely to revive a lawsuit challenging the University of Texas at Austin's race-conscious admissions policies by a group whose case over similar practices at Harvard University is now before the U.S. Supreme Court.

A three-judge panel of the 5th U.S. Circuit Court of Appeals appeared receptive to arguments that Students for Fair Admissions was not barred from suing UT after the U.S. Supreme Court ruled in the school's favor in another case challenging its admissions policies in 2016.

SFFA was founded by Edward Blum, a prominent affirmative action opponent who helped fund and identify the plaintiff, Abigail Fisher, for the earlier case against UT in which the Supreme Court in 2016 upheld the consideration of race in college admissions.

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Fisher, who was denied admission to UT, now sits on SFFA's five-member board with Blum, facts U.S. District Judge Robert Pitman in Austin cited in July in concluding SFFA's 2020 lawsuit was barred because the same people were pushing the same claims.

But U.S. Circuit Judge Kyle Duncan, an appointee of former Republican President Donald Trump, said he was "skeptical" Pitman was right, asking why a plaintiff who loses one case cannot form a group to help others sue later.

"None of this is illegal, so I just don’t get this at all," he said.

The lawsuit alleges the university, which has about 40,000 undergraduate students, improperly considers race in admissions and discriminates against white applicants in violation of the U.S. Constitution and Title VI of the Civil Rights Act of 1964.

The Supreme Court in January agreed to hear two similar cases by SFFA against Harvard and the University of North Carolina at Chapel Hill, giving the court's 6-3 conservative majority a chance to end affirmative action policies that aim to achieve diverse student enrollment.

J. Michael Connolly, SFFA's lawyer, argued a non-party to one lawsuit, like SFFA, can only be precluded from pursuing a similar one under limited circumstances, which do not apply to SFFA's case.

Matthew Powers, a lawyer for UT, argued that in any case SFFA lacked standing to pursue the claims because it doesn't have real members, pointing to SFFA's articles of incorporation as saying it would have "no members."

But U.S. Circuit Judge Edith Jones, an appointee of former Republican President Ronald Reagan, noted the 1st U.S. Circuit Court of Appeals rejected similar arguments in the Harvard case.

"So you’re asking us to create a circuit split?" she asked.

The case is Students for Fair Admissions v. University of Texas at Austin, 5th U.S. Circuit Court of Appeals, No. 21-50715.

For SFFA: J. Michael Connolly of Consovoy McCarthy

For University of Texas at Austin: Matthew Powers of Graves Dougherty Hearon & Moody

Read more:

U.S. Supreme Court to hear challenge to race-conscious college admissions

U.S. Supreme Court upholds race-based college admissions

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Nate Raymond reports on the federal judiciary and litigation. He can be reached at nate.raymond@thomsonreuters.com.