Bert Rein of Wiley Rein, who represented Abigail Fisher (right) in Fisher v University of Texas, addresses the media after arguments in the U.S. Supreme Court in October 2012.
Bert Rein of Wiley Rein, who represented Abigail Fisher (right) in Fisher v University of Texas, addresses the media after arguments in the U.S. Supreme Court in October 2012. (Photo: Diego M. Radzinschi/NLJ)

The U.S. Court of Appeals for the Fifth Circuit on Wednesday denied full-court review in the dispute over the University of Texas affirmative action program, clearing the way for a return trip to the U.S. Supreme Court.

The Fifth Circuit was sharply divided over whether to take a look at the panel decision in July upholding the admission program even after the Supreme Court told the court to re-examine it under a stricter standard of review.

The case is Fisher v. University of Texas at Austin, brought by Abigail Fisher, a white student who claims she was denied admission in 2004 because of the race-conscious program.

Five judges wanted en banc review but 10 did not, according to an order issued Wednesday by Judge Patrick Higginbotham, who wrote the July ruling.

In a dissent, Judge Emilio Garza said the panel decision “fail[ed] to conduct the strict scrutiny analysis” the Supreme Court ordered in its 2013 decision. Joining the dissent were judges Edith Jones, Jerry Smith, Edith Clement and Priscilla Owen.

The Supreme Court in its 7-1 decision in the Fisher case last year stopped well short of overturning the Texas program, but told the Fifth Circuit to take a second look under a stricter standard less deferential to the university, which defended the program.

Lawyers for Fisher could now file a petition with the Supreme Court asking it to determine if the Fifth Circuit obeyed the 2013 ruling. Depending on the timing of the petition, the case could be heard later this term, with a decision by late June.

Fisher’s counsel of record, Bert Rein of Wiley Rein, said Wednesday that in light of the appeals court’s action, “We obviously need to review our options. We’ve always contemplated taking it up to the Supreme Court again.”