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University Admissions


Case citation: Fisher v. University of Texas at Austin,        F.3d__. 2014 WL 3442449 (5th Cir. 2014).

Summary:   Abigail Fisher filed suit against the University of Texas at Austin, alleging that the University’s race-conscious admissions program violated the Fourteenth Amendment. Fisher was denied summer and fall admission into the 2008 freshmen class at the University of Texas at Austin.   Instead, she was allowed to participate in UT’s Coordinated Admissions Program (CAP).

Among the applicants for the 2008 entering class, 81 percent of students were admitted under the university’s Top Ten Percent Law, in place at the time, which guaranteed admission to students who graduate in the top ten percent of their class.  The remaining 19 percent (and applicants who ultimately were rejected) were evaluated under the “AI/PAI Plan,” a multi-faceted, individual review process.  Under that plan, two scores were given to each applicant, an Academic Index (AI) score and a Personal Achievement Index (PAI) score.  The AI was based on the student’s class rank, standardized tests, and high school curriculum.   The PAI was a more subjective, multi-factor, individualized assessment that included consideration of leadership qualities, extracurricular activities, honors and awards, work experience, community service, and “special personal circumstances.”  The “special personal circumstances” component included, among other things, consideration of a candidate’s race.  Finally, if a Texas resident’s scores fell just below those selected for admission, the university would take a second look at the application.  The university then would decide whether to admit the student for the summer, the fall, or to its CAP.

Fisher challenged the admissions policy, arguing that it violated her due process and equal protection rights under the Fourteenth Amendment.   The district court granted summary judgment to UT and the Fifth Circuit affirmed.  The United States Supreme Court, however, vacated the judgment and returned the case to the Fifth Circuit for review of the school’s admissions policy under a more rigorous “strict scrutiny” standard.

Ruling:  The Fifth Circuit Court of Appeals again upheld the University’s admissions policies, holding that it met the strict scrutiny standard required by the Supreme Court. The university’s admissions process was modeled on Michigan Law School’s admissions program which the United States Supreme Court approved in Grutter v. Bollinger, 539 U.S. 306 (2003).  In Grutter, the Court recognized that the pursuit of diversity was a compelling interest in higher education and that public universities had the right to increase enrollment of underrepresented minorities.  However, an admissions policy that considers race as a factor in the admissions process had to be narrowly tailored to accomplishing the goal of diversity.

When the Supreme Court returned the case to the Fifth Circuit, it held that its decision in Grutter requires that “strict scrutiny must be applied to any admissions program using racial categories or classifications and that racial classifications are constitutional only if they are narrowly tailored to further compelling governmental interests.”  The Supreme Court also held that attainment of a diverse student body is a constitutionally permissible goal for an institution of higher education, and serves values beyond race alone, including enhanced classroom dialogue and the lessening of racial isolation and stereotypes.  Among the benefits of diversity recognized by the Supreme Court are (1) increased perspectives, (2) professionalism, and (3) civic engagement. Further, the means of achieving those goals must be narrowly tailored to those goals. In doing so, the university had to show that the admissions process ensures that each applicant is evaluated as an individual, and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application.

In upholding the university’s admissions policy, the Fifth Circuit stated that “UT Austin has demonstrated a permissible goal of achieving educational benefits of diversity within that university’s distinct mission, not seeking a percentage of minority students that reaches some arbitrary size.”  In reality, the Top Ten Percent rule resulted in admission of 80 percent of the freshman class. “The sad truth is that the Top Ten Percent Plan gains diversity from a fundamental weakness in the Texas secondary education system. . . The de facto segregation of schools in Texas enables the Top Ten Percent to increase minorities in the mix, while ignoring contributions to diversity beyond race.”   Nevertheless, the university’s use of a holistic review formula was narrowly tailored to meet the goals of diversity, beyond those admitted by virtue of the Top Ten Percent rule.   Close scrutiny of the data in the record confirmed that a holistic review employed by the university, did not function as an “open gate to boost minority headcount for a racial quota.”  The Fifth Circuit, therefore, upheld the university’s admissions policy.

Comments: Expect to see this one back at the Supreme Court!




Case citation: Robinson v. St. Tammany Parish Pub. Sch. Sys.,      Fed.Appx.      , 2014 WL 2211976 (5th Cir. 2014).

Summary:  Janet Robinson, individually and on behalf of her minor child A.R., sued the St. Tammany Parish Public School System for violations of the United States Constitution and Louisiana state law, stemming from the school system’s decision to transfer A.R. to another high school. The record showed that on January 28, 2011, A.R. rode a St. Tammany Parish school bus while on a class field trip. Other students accused A.R. of sexual misconduct, leading to an investigation. Kevin Darouse, as the St. Tammany Parish School Board’s supervisor of administration, acted as the hearing officer in A.R.’s case, and held proceedings on February 16, 2011. A.R.’s mother and legal counsel participated in the hearing, and Darouse informed those present of the allegations of misconduct and of the evidence against A.R. At the end of the hearing, A.R. was transferred to another school for three months. Robinson alleges that she requested that the Board review Darouse’s determination and punishment, but that the Board never set a time to review the hearing officer’s findings.

Robinson filed suit and the school system and Darouse filed a motion requesting judgment in their favor prior to trial.   The trial court granted the motion, concluding that Darouse’s conduct did not violate either Robinson’s or A.R.’s procedural or substantive due process rights under the federal or state constitutions. The court also held that, under Louisiana law, the Board was not required to schedule a hearing to review Darouse’s decision because A.R. was only transferred to another school and not expelled.  The district court granted summary judgment against Robinson on her state law claims as well.   Robinson appealed to the Fifth Circuit Court of Appeals.

Ruling:  The Fifth Circuit affirmed the trial court’s judgment in favor of the defendants. According to the Fifth Circuit, the district court applied the correct standard and properly concluded that the uncontroverted evidence warranted judgment in defendants’ favor. Robinson did not dispute that Darouse held a hearing in which she and her daughter, together with legal counsel, participated. Instead, she claimed that Darouse “clearly indicated that his decisions to: (1) find A.R. guilty; and (2) disciplinarily reassign A.R. was fully formulated prior to commencement of the hearing in which A.R. was summoned to appear for purposes of determining her guilt or innocence.” She bases that assertion on an excerpt from Darouse’s deposition, in which he stated that, prior to the disciplinary hearing, he had a plan for what he would do if he found her guilty.

The Fifth Circuit held that the deposition excerpt, standing alone, was insufficient to raise a genuine dispute as to whether Darouse’s mind was so foreclosed that he was unable to give A.R. a fair and impartial hearing. To say that Darouse had a “plan” for what he would do is not to say that he had already decided the matter before conducting A.R.’s hearing. Indeed, immediately following the excepted portion, Darouse clarifies that he was only “pretty certain” as to what his ultimate decision would be.  According to the Fifth Circuit, it was natural that Darouse had an idea of what his “plan” would be going forward in A.R.’s case. But this is not enough to call into question his willingness to listen to A.R.’s version of what happened and change his mind accordingly. Thus, the Fifth Circuit held that the district court did not err because Robinson failed to raise a genuine dispute as to whether Darouse entered A.R.’s hearing with a foreclosed mind. The court of appeals also affirmed the dismissal of the claims brought under Louisiana law.



Case citation:  S.N.B. v. Pearland ISD,      F.Supp.2d      , 2014 WL 2207864 (S.D. Tex. 2014).

Summary:   S.B. attended Pearland Junior High School South in the Pearland Independent School District. During the 2012–13 school year, her classmates allegedly started to bully her. She told school officials about the harassment, and the officials alerted her father. Although he lodged numerous verbal and written complaints, the bullying allegedly continued.

At the beginning of the next school year, the assistant principal, Tony Barcelona, called her into his office to discuss what he termed “lewd” images of S.B. and her friend that had circulated between students off campus. It was unclear what images were displayed because Barcelona allegedly never showed her the photographs that the school considered problematic because they “no longer existed.”  After the meeting with Barcelona, S.B. was transferred to the district’s Alternative Learning Academy, a disciplinary alternative education program, for 30 days. The program provided “an alternative educational process for students who have committed persistent or serious violations of the Student Code of Conduct.” S.B. was disciplined for sending inappropriate pictures of herself and her friend to other students off school grounds. Jason Frerking, the school’s principal, cited PISD’s Student Code of Conduct and Handbook, which prohibits students from “Send[ing], post[ing] or possess[ing] electronic messages that are abusive, obscene, sexually oriented, threatening, harassing, damaging to another’s reputation or illegal, including cyber-bulling and ‘sexting’ either on or off school property, if the conduct causes a substantial disruption to the educational environment.”

S.B. did not challenge her transfer to Alternative Learning Academy through the district’s internal appeals process, but filed suit.   She sued the district, Barcelona, and Frerking, claiming (1) that four terms in PISD’s Code of Conduct—“obscenity,” “sexually oriented,” “sexting,” and “substantial disruption”—are unconstitutionally vague; (2) violations of state and federal procedural due process; (3) negligence based on Defendants’ failure to stop S.B. from being bullied; (4) failure to report suspected child abuse under state law; and (6) failure to develop a policy for reporting suspected child abuse. Defendants sought dismissal of the suit and S.B. requested an opportunity to file a second amended complaint, through which she would assert three new claims: (1) a claim that Defendants violated her constitutional free speech and privacy rights; (2) an equal protection claim that Defendants treated her more harshly than male and female students with similar infractions; and (3) a retaliation claim based on criminal charges that she alleges Defendants caused to be brought against her after she filed this lawsuit.

Ruling:  The trial court granted the district’s motion to dismiss and denied S.B.’s request to amend the lawsuit; thus, final judgment was entered in favor of the district defendants.  S.B. was punished under PISD’s student code of conduct, which forbids students from sending electronic messages that are, among other things, “abusive, obscene, [or] sexually oriented.” She sought a declaratory judgment under the federal Due Process Clause that four of its terms are unconstitutionally vague: obscenity, sexually oriented, sexting, and substantial disruption. The trial court observed that a law is unconstitutionally vague when persons “of common intelligence must necessarily guess at its meaning and differ as to its application.”  Citing the Supreme Court’s decision in Bethel Sch. Dist. No. 403 v. Fraser, 106 S.Ct. 3159 (1986), which upheld a school disciplinary rule prohibiting “obscene” language, the trial court determined that the Pearland ISD’s Code of Conduct prohibiting “obscene” electronic messages was not unconstitutionally vague.  Also, because many courts have upheld regulations using the term “sexually oriented,” the district’s prohibition against “sexually oriented” electronic messages was not unconstitutionally vague.  The trial court similarly upheld the district’s use of the terms “sexting” and “substantial disruption.” Citing Tinker v. Des Moines Indep. Sch. Dist., 89 S. Ct. 733 (1969), the trial court observed that the “substantial disruption” standard has been an “integral part of school discipline for many years.”  Thus, the trial court dismissed S.B.’s challenges to the Student Code of Conduct.

S.B.’s procedural due process claims fail under Fifth Circuit precedent, which establishes that her transfer to the Alternative Learning Academy did not implicate her constitutional rights. To establish a due process claim, S.B. first had to identify a liberty or property interest at stake.  The trial court observed that, although students have a protected interest in education, the Fifth Circuit has held that students have no cognizable liberty or property interests in preventing a school from transferring them to a disciplinary alternative education program.   Because S.B. was not expelled, she was not deprived of a recognized liberty or property interest as a result of her transfer to a disciplinary alternative school. According to the trial court, the procedures used in that decision were not subject to constitutional requirements, and her federal due process claims were, therefore, dismissed.

The trial court dismissed the state law negligence claims against the district stemming from its alleged failure to stop bullying against her based on governmental immunity.  The Tort Claims Act only waives a school district’s right to governmental immunity for negligence arising from the operation or use of a motor vehicle.  The bullying claims did not involve the negligent operation or use of a motor vehicle and, as a result, did not fall within that waiver of immunity. According to the trial court, S.B. could not amend the suit to overcome the district’s governmental immunity.   Further, no civil liability could attach for Barcelona and Frerking’s alleged failure to report suspected child abuse. Thus, the trial court dismissed each of S.B.’s claims and held that any amendment to the suit would be futile.  Final judgment was entered in favor of the district defendants.

Comments: This case upholds the constitutionality of language commonly found in Codes of Conduct—“obscene,” “lewd,” “sexting,” “substantial disruption,” and “sexually oriented.” However, the more interesting issue is whether or not students have a First Amendment right to text and “sext” when not on school campus.  The court does not directly answer that question here, but holds that the law on that is too murky to be considered “clearly established” and thus the two school officials were entitled to qualified immunity.  One more interesting Dawg Bone in this case:  failure to report child abuse opens the door to criminal liability, but not a civil suit.



Case citation:  Learned v. Princeton ISD, Dkt. No. 058-R10-07-2013 (Comm’r Educ. February 14, 2014).

Summary: Amy Learned filed an appeal with the Commissioner of Education challenging a Princeton Independent School District policy that allows students to record other students in and outside of the classroom.  The district adopted a document titled “BYOT Bring Your Own Technology,” which allowed student to record lectures and activities in class that are linked to specific learning outcomes.  The policy also allowed students to make recordings outside of the classroom, with few exceptions.   Learned argued that the technology policy violated Texas Education Code § 26.009, which requires parental consent before a school employee makes or authorizes the making of videotape or a recording of a child.  Education Code § 26.009 has four exceptions: (1) for purposes of safety; (2) for purposes of extracurricular or cocurricular activities; (3) a purpose related to regular classroom instruction; and (4) media coverage.  According to the district, Education Code § 26.009 did not apply because the policy did not authorize videotaping other students at school and, even if it did, any recording was covered by the exception for purposes related to regular classroom instruction.

Ruling:   The Commissioner held that part of the policy allowing in-class recordings related to classroom instruction complied with Education Code § 26.009, but recordings made outside of the classroom did not.  The BYOT policy allowed recordings of other students incidentally while recording a lecture.  The policy also allowed for incidental or direct recording of other classroom activities that were linked to specific learning outcomes.  According to the Commissioner, those in-class recordings fell within an exception to Education Code § 26.009 because they were for a purpose related to regular classroom instruction.

On the other hand, the policy allowing recordings made outside of class did not comply with Education Code § 26.009. Specifically, the policy allowed students to make recordings of other students on school property and outside of the classroom. The policy stated:  “Outside of the classroom, (before school, hallways, lunch, after school) students have the right to use their devices without restriction as long as they adhere to appropriate etiquette and code of conduct.”  The Student Code of Conduct provided for consequences for misuse of recordings of other students.   Nevertheless, according to the Commissioner, the policy allowing students to make such recordings violated Education Code § 26.009 requiring parental consent and did not fall within any of the exceptions in § 26.009.  Thus, the Commissioner held that the district could not apply its BYOT policy insofar as it authorized students to make recordings of students outside of the classroom.

Comments:  The BYOT Initiative did require students to “adhere to appropriate etiquette and code of conduct” when using their devices outside of the classroom. But the Commissioner holds that that was not sufficient. Permitting students to record each other during the school day and outside of class violates T.E.C. § 26.009.   This is a rare case interpreting that statute.