       IN THE UNITED STATES COURT OF APPEALS
                FOR THE FIFTH CIRCUIT
                                                                United States Court of Appeals
                                                                         Fifth Circuit

                                                                       FILED
                               No. 09-50822                   November 12, 2014
                                                                  Lyle W. Cayce
ABIGAIL NOEL FISHER,                                                   Clerk


                                        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
                                 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




                                      2
                                  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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