By Janet Elliott
AUSTIN – With the stakes high for the continuation of affirmative action in college admission policies, the University of Texas has opened its wallet to hire a team of experienced lawyers to argue their case at the U.S. Supreme Court.
UT has contracted to pay $977,000 in legal fees, plus expenses, to three lawyers from Latham & Watkins’ Washington D.C. office. They include a former solicitor general under the Bush administration and two lawyers who won a 2003 case for the University of Michigan Law School.
The Supreme Court this fall will hear the appeal of Abigail Fisher, a white college applicant who sued UT in 2008 for admitting minority students that she said were less qualified. The court’s decision to hear the case has alarmed many in the higher education community because of changes in the court’s membership since the Michigan case.
The Latham & Watkins team includes, Maureen Mahoney, who argued the Michigan case, Grutter v. Bollinger, which allowed UT to resume considering race and ethnicity in its admissions. Scott Ballenger was the primary author of the briefs in that case, and Gregory Garre is the former solicitor general who has argued 34 cases before the Supreme Court and now heads the firm’s Supreme Court and Appellate Practice Group. Latham is based in Los Angeles but has an office with about 45 transactional lawyers in Houston.
“I think hiring the lawyers at Latham & Watkins was an excellent choice. Mahoney argued the Michigan case and I thought she did a magnificent job,” said Harry Reasoner, who led a pro bono team from Vinson & Elkins in defending a similar challenge against the UT School of Law in the Hopwood case.
The outsider lawyers will take over the case from Texas Attorney General Greg Abbott’s office. UT President Bill Powers thanked Abbott in a March 29 letter for the excellent work that Solicitor General Jonathan Mitchell and former Solicitor General Jim Ho had done in the case but asked for permission to hire outside counsel with “significant higher education experience and Supreme Court practice.”
Abbott approved the request in an April 2 letter.
“Although this office and the Solicitor General are ready, willing, and able to continue representing the University of Texas in the Fisher case, we are also willing to defer to your request for outside legal representation before the United States Supreme Court,” Abbott said.
Fisher, who went on to attend Louisiana State University, is represented by Bert Rein, a founding partner of Wiley Rein who specializes in antitrust and commercial litigation.
Patti Ohlendorf, UT’s vice president for legal affairs, said university officials discussed with the AG’s office the benefits of hiring lawyers with experience arguing a higher education affirmative action case before the Supreme Court.
“Supplementing the legal team with the Latham & Watkins group would bring an element to our defense before the court that we wouldn’t have with any other representation,” she said.
The contract specifies for the money to come from non-appropriated funds, meaning that state tax dollars appropriated by the Legislature will not be used. Possible sources include discretionary funds such as donations and licensing revenue.
Hopwood involved a challenge by several white students to the use of racial preferences in the admissions process for the UT law school. U.S. District Judge Sam Sparks of Austin ruled in favor of the law school, but a panel of the Court of Appeals for the 5th Circuit in 1996 struck down the admissions policy.
When the U.S. Supreme Court refused to review that case, it left a strange situation with only Texas and the other states governed by the 5th Circuit unable to consider the race of college applicants.
The Legislature in 2007 enacted the Top 10 Percent Law, which guarantees admissions for students who graduate in the top 10 percent of their high school classes. Ohlendorf said after the Supreme Court ruled in the Michigan case that public colleges and universities could take race into account, the University of Texas revised its policies.
In 2008, the year Fisher applied, 80 percent of freshman slots were filled by applicants under the top 10 percent law. Other spaces were filled by a “holistic review process” that includes factors such as race and ethnicity, geographic location, gender and socioeconomic status, Ohlendorf said.
In Fisher’s case, Sparks granted summary judgment for UT. A panel of the 5th Circuit endorsed UT’s use of race to further the university’s interests in having a more diverse student population. The entire court denied rehearing, in a 9-7 vote.
Writing for five of the dissenting justices, Chief Judge Edith Jones said the panel had improperly extended Grutter by allowing the use of race when the race-neutral top 10 percent law had already fostered increased campus diversity.
Reasoner, a UT law school graduate whose law firm donated more than $2 million for the trial and appeal in Hopwood, remains a supporter of affirmative action admissions policies. He is not sure how the current court will view those policies now that Justice Samuel Alito has replaced Sandra Day O’Connor, author of the Grutter opinion.
“We’ll soon see how much difference Justice O’Connor’s departure makes,” he said.
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