President Bush announced last week that his administration would urge the U.S. Supreme Court to strike down the race-conscious admissions policies used by the University of Michigan at Ann Arbor.
In remarks delivered to the White House press corps, Mr. Bush denounced Michigan’s admissions policies as “fundamentally flawed” and argued that they “are divisive, unfair, and impossible to square with the Constitution.”
But, in a move that disappointed some conservatives, administration officials said the Justice Department’s brief to the Supreme Court, which has taken up two cases involving Michigan’s policies, would stop short of asking the justices to declare that colleges should never consider race as a factor in selecting students.
The officials also said that the administration would not ask the court to explicitly reject the rationale for race-conscious admissions policies that Justice Lewis F. Powell Jr. put forward in the court’s landmark 1978 decision in Regents of the University of California v. Bakke. In his written opinion, Justice Powell held that colleges may consider race in admissions for the sake of diversity, as long as they do not use quotas.
The administration’s brief was unavailable when The Chronicle went to press, and legal analysts hesitated to comment on the brief’s likely impact on the Supreme Court until they had read it. Although the court has occasionally given little weight to Justice Department briefs in the past, a few legal experts said they thought that some justices -- particularly those regarded as potential swing votes in the Michigan cases, such as Justice Sandra Day O’Connor -- would be more willing to sign onto a decision barring race-conscious admissions policies if the executive branch supports that position.
Florida Files Brief
The administration’s brief was among several that were submitted to the Supreme Court last week, which was the deadline for parties to side with the plaintiffs, who are challenging the admissions policies at Michigan’s chief undergraduate college and its law school. Others filing briefs in opposition to Michigan included the State of Florida and an assortment of advocacy organizations, mainly of a conservative or libertarian bent, that urged the court to reject Justice Powell’s reasoning in Bakke and declare that the Constitution prohibits colleges from giving any consideration to race in admissions.
The deadline for briefs supporting Michigan is February 18, and last week U.S. Rep. Dick Gephardt, a Missouri Democrat, said he planned to ask fellow members of Congress to join him in filing one. Several civil-rights and higher-education organizations signaled that they also intended to file briefs in defense of Michigan’s race-conscious admissions policies.
The question of which side to take has divided three major Jewish organizations whose briefs opposing racial quotas helped influence the court in its Bakke decision 25 years ago. One of the three, the Anti-Defamation League of B’nai B’rith, filed a brief by last week’s deadline that did not formally take a side but contended that Michigan’s admissions policies give too much weight to race. Officials of the American Jewish Committee said that they planned to file a brief supporting Michigan’s policies, arguing that they are needed to bring about racial diversity on campuses. And a lawyer for the American Jewish Congress said that his organization was so internally divided over the cases that it had decided not to weigh in on either one.
Pressure From All Sides
Sources within the Bush administration said officials had spent more than a month debating which side to take in the Michigan cases, or whether to enter the fray at all.
The White House was urged to take a strong stand against race-conscious admissions policies by Attorney General JohnD. Ashcroft and by Solicitor General Theodore B. Olson. Seven years ago, while a private lawyer, Mr. Olson represented the white plaintiff in the case Hopwood v. Texas, which led to a ruling by the U.S. Court of Appeals for the Fifth Circuit striking down the race-conscious admissions policies at the University of Texas Law School.
Other officials in the administration, including the White House counsel, Alberto R. Gonzales, reportedly expressed concern that by taking a stand against race-conscious admissions, the Bush administration would hurt its efforts to appeal to minority voters.
While conservative organizations with ties to the White House had lobbied it to oppose Michigan, the leaders of several civil-rights groups and higher-education associations contacted administration officials to urge them to weigh in on Michigan’s behalf.
In an attempt to put public pressure on the administration, the leaders of 12 prominent Hispanic organizations issued an open letter to President Bush this month. The letter warned that if Michigan lost in the Supreme Court, “the percentage of Latino youth graduating from higher education would drop substantially.” Critics of race-conscious admissions policies challenged that prediction.
A second open letter to President Bush was signed by the leaders of 37 major higher-education associations, including several representing private or religious colleges. Written by David Ward, president of the American Council on Education, the letter urged the president to back Michigan and said that “the persuasive power of the White House could prove significant to a positive outcome before the Supreme Court.”
A bitter debate arose in Congress over how the White House should proceed. The Senate minority leader, Thomas A. Daschle, a Democrat from South Dakota, emerged as one of the key figures seeking to put pressure on the Bush administration to intercede for Michigan.
Although the Congressional divisions broke down largely along partisan lines, four moderate Republican senators -- Lincoln D. Chafee of Rhode Island, Susan M. Collins and Olympia J. Snowe of Maine, and Arlen Specter of Pennsylvania -- sent a letter to President Bush urging him to support racial diversity as “a compelling government interest.” They also warned him that a White House stand against their diversity rationale “could do significant harm to our system of higher education.”
Assessing the Alternatives
The Supreme Court is expected to hear oral arguments in March or April in the two Michigan cases, Grutter v. Bollinger, which involves admissions to the university’s law school, and Gratz v. Bollinger, which deals with admissions to the university’s undergraduate College of Literature, Science, and the Arts. The court’s rulings are expected in June or July.
Both lawsuits were brought in 1997 on behalf of white applicants whom the university had rejected, and both advance what is essentially a two-pronged argument. They contend that promoting racial and ethnic diversity on campuses is not a compelling government interest that justifies discriminatory admissions policies. But, partly to hedge against the court’s ruling otherwise on that matter, they also argue that Michigan’s policies are not narrowly tailored to the goal of promoting necessary diversity, and therefore fall outside the compelling-interest exemption that the court has applied to the Constitution’s equal-protection clause.
The university has argued that its race-conscious admissions policies are legal under the Bakke decision, and are needed to maintain enough racial and ethnic diversity in its enrollment for students to benefit educationally.
The policies at issue in the undergraduate case use a system that awards black, Hispanic, and American Indian applicants 20 points on a 150-point scale.
The law school’s policies give more-individual consideration to applicants but consider race and ethnicity in an attempt to bring about a “critical mass” of underrepresented minority students on the campus. The policies typically have resulted in combined black, Hispanic, and American Indian enrollments of 10 to 17 percent.
Last week, in announcing his decision to have the Justice Department’s lawyers oppose Michigan before the Supreme Court, President Bush said, “At their core, the Michigan policies amount to a quota system that unfairly rewards or penalizes prospective students, based solely on their race.” He alleged that the undergraduate admissions policies award students so many points based on race that race “is often the decisive factor.”
At Michigan’s law school, he said, “some minority students are admitted to meet percentage targets while other applicants with higher grades and better scores are passed over.”
The president said he remained a strong supporter of diversity on campuses. But, he said, the nation must find race-neutral means of overcoming the effects of racial prejudice and achieving diverse college enrollments. The country, he added, “must not use means that create another wrong and thus perpetuate our divisions.” He cited California, Florida, and Texas, where he formerly served as governor, as states that have managed to achieve racially diverse college enrollments through race-neutral means, by automatically admitting the top students from each high school’s graduating class.
In a briefing after Mr. Bush’s announcement, a senior administration official, who spoke on condition of anonymity, said the Justice Department would file “a narrowly tailored brief” that would focus on Michigan’s policies, not on “the outer limits of what the Constitution does or does not permit.”
“What the government is going to argue is that any time there is a consideration of race, the court has said you have to look to see if there are race-neutral alternatives,” the official said. “There are race-neutral alternatives [in the Michigan cases]; we know that. The Michigan program didn’t even try to address the goal of racial diversity, the goal of broad diversity through race-neutral means.”
‘A Boost for Us’
Mr. Bush’s statement was welcomed by Curt A. Levey, director of legal and public affairs for the Center for Individual Rights, which is helping to represent the plaintiffs in the Michigan cases. He added, however, that the cases are “going to be determined on law and facts, not on politics.”
The Bush administration’s support “is a boost for us, but is certainly not going to be the decisive factor,” Mr. Levey said.
Meanwhile, Mary Sue Coleman, president of the University of Michigan, said that Mr. Bush “misunderstands how our admissions process works.” The university does not use quotas, she said, and “considers the entire background of each student applicant,” focusing mainly on academic qualifications.
The president’s decision was denounced by the leaders of several civil-rights groups. Theodore M. Shaw, associate director and counsel for the NAACP Legal Defense and Educational Fund, argued that the California, Florida, and Texas plans that Mr. Bush cited as alternatives are flawed for two key reasons: They do nothing to integrate graduate and professional schools, and they work only where segregation in the public-school system has resulted in distinctly white, black, or Hispanic high schools.
In other developments last week, Gov. Jeb Bush of Florida, a Republican who is the president’s brother, said he had directed officials there to submit a brief in opposition to Michigan because “race-based preferences are a form of discrimination, and they are wrong.”
Among the various organizations that said they had filed briefs opposing Michigan were the Asian American Legal Foundation, the Cato Institute, the Center for Equal Opportunity, the Center for the Advancement of Capitalism, the Claremont Institute Center for Constitutional Jurisprudence, the National Association of Scholars, and the Pacific Legal Foundation.
http://chronicle.com Section: Government & Politics Volume 49, Issue 20, Page A20
