Between Fisher and Fawcett, a Big Day in Court for UT

Between Fisher and Fawcett, a Big Day in Court for UT

It's a busy week for the University of Texas at Austin. Lawyers will be representing the university in Los Angeles and in Austin on two dramatically different issues. And to top it off, the board of regents meets against a backdrop of controversy.


Wednesday and Thursday will be busy days in the courtroom and the boardroom for the University of Texas at Austin — and not just in the Lone Star State.

In Los Angeles, a major trial is scheduled to begin Wednesday concerning a painting of Farrah Fawcett by Andy Warhol that university officials believe the iconic Charlie's Angels star intended to bequeath to UT. Her longtime romantic partner, Ryan O'Neal, also a noted actor, disputes the university's claim. 

Back in Austin on the same day, a panel of three federal judges from the U.S. 5th Circuit Court of Appeals will hear oral arguments in the case of Fisher v. University of Texas at Austin, which challenges the university's consideration of applicants' race as a factor in admissions decisions.

Meanwhile, at the Texas Capitol, there was a hearing scheduled for Wednesday on a controversial University of Texas System regent, who has been accused of — and could potentially be impeached for — conducting a "witch hunt" targeting the UT-Austin administration. That hearing was canceled, but it hardly lightens the university's load; the board of regents will hold a meeting on Thursday.

"Either by coincidence or karma, this is certainly a busy and important week for UT-Austin," university spokesman Gary Susswein said. "We're tackling some of the biggest issues facing the university, including defending our holistic admissions policy and hiring a new athletic director. And we're protecting Farrah Fawcett's wishes in an L.A. courtroom, which is not exactly where we usually find oursleves. All this while preparing for an important regents meeting. It's not a week for the weak-hearted on the Forty Acres."

The issue with the broadest impact is undoubtedly the Fisher case, which was remanded back to the 5th Circuit by the U.S. Supreme Court in June. The case was brought by Abigail Fisher, a white woman who went on to graduate from Louisiana State Universiy. She claimed that UT-Austin's decision to not admit her was unfairly based on race.

UT-Austin uses race as one element of its admissions process, part of a holistic review of applicants who don't automatically qualify under the state's "top 10 percent" rule. That rule requires universities to admit students who graduate in the top 10 percent of their high school class. UT-Austin caps automatically admitted students at 75 percent of the incoming class, effectively making it a top 7 percent rule.

In a 7-1 ruling, the Supreme Court justices determined that the federal judges, who had previously upheld UT-Austin's approach, did not adequately "hold the University to the demanding burden of strict scrutiny," a very high standard of review used in previous Supreme Court rulings on the consideration of race in such decisions.

In a statement, UT-Austin President Bill Powers contended that the university's lawyers had defended its practice using the "strict scrutiny" standard and would continue to do so.

"We must have the flexibility to consider each applicant's unique experiences and background so we can provide the best environment in which to educate and train the students who will be our nation's leaders," Powers said.

But in its ruling, the Supreme Court indicated that the lower court judges could not simply accept the word of UT-Austin officials at face value. In the majority opinion, Justice Anthony Kennedy wrote of the federal court's ruling, "It presumed that the school had acted in good faith and gave petitioner the burden of rebutting that presumption." 

Both sides celebrated the Supreme Court's decision as a prelude to a victory. But now that the case is back in the hands of the circuit court, it remains to be seen if the justices' instructions to apply stricter scrutiny to the university's arguments will alter the judges' approach to oral arguments — or, more importantly, the ultimate outcome, which could have nationwide implications for the use of affirmative action.

At the same time, roughly 1,400 miles away, UT-Austin lawyers will take part in a more tabloid-friendly trial.

When Fawcett died in 2009, she left all of her artwork to her alma mater, UT-Austin. But only one of two portraits painted of her by Warhol were turned over to the university. Another remained in the possession of O'Neal, with whom Fawcett had a son in 1985. O'Neal contends that the painting belongs to him, and that he and Fawcett had each always claimed ownership of one of the pair of Warhols.

The University of Texas System sued to get the painting, and O'Neal has countersued. Ultimately, after a trial that could last weeks, a California jury will decide who gets the portrait. Its estimated value has ranged from the high six figures to several million dollars.

"We simply want to honor and respect the charitable intent and wishes of Farrah Fawcett," Randa Safady, the system's vice chancellor for external relations, who is in Los Angeles representing the system, said in a statement.

Safady said it was "indisputable" that, for charitable purposes, Fawcett named UT-Austin as the sole beneficiary of all her works of art, "including artwork she created and all objects of art that she owned."

"We therefore have a legal and fiduciary responsibility," Safady said, "to pursue fulfillment of the requests outlined in her trust instrument."

Compared with Wednesday's trials, Thursday's regents meeting may sound dull — were it not set against the backdrop of the ongoing legislative investigation of one of the board's members, Wallace Hall, who could become the first nonelected government appointee in the state's history to be impeached.

A Wednesday hearing by the committee investigating Hall was canceled after the committee managed to complete its planned work in a tense Tuesday hearing. During their Thursday meeting, the regents are scheduled to discuss legal issues pertaining to the ongoing investigation in a closed-door executive session.

UT System board chairman Paul Foster has previously indicated that he plans to propose new policies stemming from issues raised during the impeachment investigation. The ideas he has been considering include a more formal process for vetting regents' requests for information from the system's institutions, a stricter approach to the board's public communications strategy and the creation of system-provided email accounts for the regents to use when conducting system business.

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This article originally appeared in The Texas Tribune at http://www.texastribune.org/2013/11/13/between-fischer-and-fawcett-big-day-court-ut/.

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