IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-50822

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,

Defendants - Appellees

Appeal from the United States District Court

for the Western District of Texas

United States Court of Appeals

Fifth Circuit

FILED

November 12, 2014

Lyle W. Cayce

Clerk
No. 09-50822

ON PETITION FOR REHEARING EN BANC

(Opinion July 15, 2014, 758 F.3d 633)

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

The court having been polled at the request of one of its members, and a 

majority of the judges who are in regular active service and not disqualified 

not having voted in favor (Fed. R. App. P. 35 and 5th Cir. R. 35), the Petition 

for Rehearing En Banc is DENIED. Judge Garza, joined by Judges Jones, 

Smith, Clement, and Owen, dissents from the court’s denial of rehearing en 

banc, and his dissent is attached.

In the en banc poll, 5 judges voted in favor of rehearing (Judges Jones, 

Smith, Clement, Owen, and Elrod) and 10 judges voted against rehearing 

(Chief Judge Stewart and Judges Jolly, Davis, Dennis, Prado, Southwick, 

Haynes, Graves, Higginson, and Costa).

ENTERED FOR THE COURT:

UNITED STATES CIRCUIT JUDGE

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No. 09-50822

EMILIO M. GARZA, Circuit Judge, dissenting from Denial of Rehearing En 

Banc, joined by JONES, SMITH, CLEMENT, and OWEN, Circuit Judges:

The en banc court, by denying en banc review, effectively adopts the 

panel majority’s opinion rejecting the dictates of Fisher v. University of Texas 

at Austin which requires that this court not defer to the University’s claim that 

its use of racial classifications in its admissions process is narrowly tailored to 

its stated goal. 133 S. Ct. 2411, 2420 (2013). Clearly the panel majority 

dutifully bows to Fisher’s requirements, but then fails to conduct the strict 

scrutiny analysis it requires, thus returning to the deferential models of 

Regents of University of California v. Bakke, 438 U.S. 265 (1978), and Grutter 

v. Bollinger, 539 U.S. 306 (2003). 

In my dissent, I explain and analyze with some detail the University’s 

position, in which it fails to furnish any articulated meaning for its stated goal 

of “critical mass.” Fisher v. Univ. of Tex. at Austin, 758 F.3d 633, 666–75 (5th 

Cir. 2014) (Garza, J., dissenting). By not providing a clear definition of that 

end goal, the University eliminates any chance that this court could conduct 

the “most rigid scrutiny” of its race-conscious admissions program. See Fisher, 

133 S. Ct. at 2419 (quoting Loving v. Virginia, 388 U.S. 1, 11 (1967)). 

Analytically, Fisher requires that the University’s stated goal not be confined 

to the assessment of the University’s decision to pursue diversity, but also 

reach the narrow tailoring analysis. “The University must prove that the 

means chosen by the University to attain diversity are narrowly tailored to 

that goal.” Id. at 2420.

For these reasons, more comprehensively stated in my panel dissent, I 

respectfully dissent from the denial of rehearing en banc. 

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