President Bush last week attacked the use of racial preferences in college admissions, declaring that University of Michigan affirmative action policies under review by the U.S. Supreme Court amount to a quota system “that unfairly rewards or penalizes prospective students based solely on their race.”
The president, in a Roosevelt Room address on Jan. 15, one day before his Department of Justice filed briefs in the Supreme Court, argued that “quota systems that use race to include or exclude people from higher education and the opportunities it offers are divisive, unfair, and impossible to square with the Constitution.”
Mr. Bush’s decision to enter the dispute on the side of white students challenging affirmative action in the university’s undergraduate and law school admissions came after weeks of intense White House debate, and emerged from a tangle of political considerations.
With racially charged remarks by Sen. Trent Lott of Mississippi still a sensitive matter for Republicans, the White House had to weigh competing demands to act on its previously stated opposition to racial preferences against calls from African-American and Hispanic groups to show support for diversity in higher education.
The White House had even hinted earlier this month that it might stay out of the Michigan case altogether; it was under no obligation to file friend-of-the-court briefs in Grutter v. Bollinger and Gratz v. Bollinger (Case Nos. 02-241 and 02-516).
But it would have been highly unusual for an administration to pass up a chance to weigh in on such a prominent legal issue. Last year, for instance, the Justice Department sided with the state of Ohio in defense of including religious schools in voucher programs. Affirmative action in higher education is an issue with an even greater federal interest, given the large amount of federal funding of colleges and universities and the executive branch’s strong role in fighting discrimination in educational programs.
Still, the White House appeared to try steering a course that would result in minimal damage to Republican efforts to reach out to blacks and Hispanics, while not alienating conservative groups that had signaled they would be miffed if the administration sat out the case.
The briefs themselves, filed late on Jan. 16, strike a cautious tone.
“The university’s race-bace bonus system is unconstitutional because it ignores the ample race-neutral alternatives available,” the brief in the undergraduate case states.
The brief cites policies in California, Florida, and Texas that guarantee admissions to public universities to students who graduate near the top of their high school classes.
The president repeatedly referred to the University of Michigan’s affirmative action policies as akin to quotas, a term that elicits a distinct negative reaction in public-opinion polls.
University of Michigan officials said the administration was misrepresenting the details of their policies.
“We do not have, and have never had, quotas or numerical targets in either the undergraduate or law school admissions programs,” university President Mary Sue Coleman said in a written response to the president’s remarks. “Academic qualifications are the overwhelming consideration for admission to both programs.”
‘Wishy-Washy’?
At the undergraduate level, the university gives African-American, Native American, and certain Hispanic applicants a 20-point bonus on a 150-point admissions scale, in which a score of 100 is generally enough for admission. A perfect score on the SAT, meanwhile, nets 12 points for an applicant. The law school does not use such a scale in admissions, but seeks to guarantee the presence of a “critical mass” of underrepresented minority group members in each entering class.
Hispanic civil rights groups had urged the president to support the University of Michigan, arguing that an end to affirmative action would reduce the number of Hispanic youths in college.
“It is hard to overstate our disappointment,” Raul Yzaguirre, the president of the National Council of La Raza, said after Mr. Bush announced his position. “The president cannot argue that he supports opportunity for all while opposing the only policy that has clearly succeeded in providing it.”
Opponents of racial preferences were pleased that the president joined the case, although one was concerned that the administration’s stance was “wishy-washy.”
“On balance, I’m glad the administration filed, but the briefs have been politically emasculated,” said Roger Clegg, the general counsel of the Center for Equal Opportunity, which supports the white students.
The Michigan case is being watched closely in K-12 schools for its potential impact on magnet programs and other race-conscious school assignments. (“FDA approves New Drug to Treat Attention Problems, News in Brief,” Dec. 11, 2002.)
One little-mentioned fact about the case is that the Clinton administration had supported the university in 1999 in federal district court in Detroit.
Bill Lann Lee, the head of the Justice Department’s civil rights division then, said last week it was unusual for the department to switch sides in a case, even with a change in administration.
President Clinton was criticized in the mid-1990s for similarly abandoning the first Bush administration’s stance in a thorny affirmative action case involving teacher layoffs.
