WASHINGTON -- In revealing the position it will take today in a big affirmative action case, the Bush administration specifically assailed the University of Michigan's programs but refrained from attacking the legal pillar that allows universities to consider race in admissions.
White House aides said Wednesday that the administration's brief to the Supreme Court will not specifically address whether the 1978 Regents of the University of California vs. Bakke, which allows colleges to favor blacks and Hispanics over whites to achieve campus diversity, is still good law. It's a compromise that avoids the burning constitutional question at the heart of the case and separates the Bush position from that of the Clinton administration, which in the early stages of the Michigan dispute vigorously urged courts to uphold Bakke. That ruling set the standard for campus policies nationwide.
Even so, the compromise may have been the best political course. It is unlikely to completely please or anger either Bush's conservative base or the Hispanics and other minorities Bush is trying to attract.
The president's own top aides were divided over whether to join the white students who brought the case and who say Michigan's policies favoring minority applicants are unconstitutional. And the American public remains torn over how far government should go to help minorities who faced a long history of discrimination.
In his remarks Wednesday, the president captured some of the divide by asserting that "higher education should reflect our diversity" but saying schools should try first to achieve that diversity with programs that do not look at skin color. His speech cited Texas' higher education system, which admits the top 10 percent of students at all high schools in the state.
The administration's legal brief to the court apparently will mirror such comments. A senior Bush administration official who briefed reporters on the filing to be submitted today said the Justice Department will assert that Michigan wrongly did not consider a "race-neutral program" first. The aide called the undergraduate and university programs that effectively give minorities extra points "de facto quotas."
The administration stopped short of taking on Bakke, the official said, because the president decided not to address the "outer limits of what the Constitution does or does not permit."
Asked whether Bush had punted, the aide said, "I wouldn't characterize this as a punt. I would say that what we are doing is articulating a very principled and realistic position for how to promote diversity in America."
Numerous groups on both sides of the debate had been anxiously awaiting the Bush position. The Supreme Court is closely divided on affirmative action. A strong, persuasively argued brief from the federal government, which regulates numerous education programs, could make a difference in the justices' thinking. But as administration officials described the filing, which had not been made available to reporters, it appeared unlikely to be the kind of document that could tip the court on fundamental issues.
The announcement of Bush's position in the Michigan cases to be argued in April culminates several weeks of internal discussions over what position the administration should take in arguably the biggest affirmative action case in 25 years.
Crafted by the late Justice Lewis Powell, the 1978 Bakke ruling stands for the principle that colleges have a compelling interest in a diverse student body, and an admissions policy that considers race ensures that diversity.
For a quarter-century, that position has influenced the admissions policies of public and private universities. But in recent years, it has been challenged by white students who say it violates the constitutional guarantee of equal protection under the law.
The U.S. Court of Appeals for the 5th Circuit -- covering Texas, Louisiana and Mississippi -- ruled it unconstitutional based on Supreme Court decisions in non-education cases against the use of race-based policies. But other courts, including the 6th Circuit, which reviewed the Michigan dispute, say it endures as good law, reinforcing Justice Powell's remarks about the importance of diversity to a school's educational mission.
The administration apparently will not take on that principle directly, but it might undermine the possibility to use race in admissions.
White House officials say they will address the part of the case that tests how a program can be "narrowly tailored" to meet constitutional standards. They said Michigan's programs giving extra credit to racial minorities and aiming for a "critical mass" of non-whites failed the test. They emphasized that a university should have to show that it tried to achieve campus diversity through race-neutral means.
If the administration argues that several tough preconditions must be met before race is considered a factor in admissions, it might mean that universities would never get to invoke race.
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