- The Washington Times - Thursday, January 16, 2003

The Bush administration will submit to the Supreme Court today a legal brief against the University of Michigan's affirmative-action policy, which the president called "fundamentally flawed" and unconstitutional.
In an announcement yesterday in the Roosevelt Room at the White House, Mr. Bush said the Michigan admission policy amounts "to a quota system that unfairly rewards or penalizes prospective students, based solely on their race."
The Supreme Court will review in March a lawsuit brought by three white students who say they were unconstitutionally kept out of the University of Michigan and its law school because it gave preferential treatment to minority applicants so that it could have a racially diverse student body.
"I strongly support diversity of all kinds, including racial diversity in higher education. But the method used by the University of Michigan to achieve this important goal is fundamentally flawed," Mr. Bush said yesterday.
"Our Constitution makes it clear that people of all races must be treated equally under the law," he said. "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."
A senior administration official told reporters last night that the Justice Department's brief would not mount a comprehensive assault on the use of race in college admissions.
The brief would only "be addressing the narrow issue in this case that the Michigan program is unconstitutional" as it violates the 14th Amendment's equal-protection clause.
"We need not address in this case the outer limits of what the Constitution does or does not permit, and under what circumstances," the official said on the condition of anonymity.
Democrats and civil rights groups criticized Mr. Bush, with Senate Minority Leader Tom Daschle calling the announcement "a watershed" event in the administration's record on civil rights.
"Once again today, the administration has said as clearly by their actions as anyone can, they will continue to side with those opposed to civil rights," the South Dakota Democrat said on the Senate floor.
Former presidential candidate Jesse Jackson responded to Mr. Bush's decision by calling him "the most anti-civil rights president in 50 years."
Several Democratic lawmakers seeking their party's 2004 presidential nomination also voiced criticism.
"The Bush administration continues a disturbing pattern of using the rhetoric of diversity as a substitute for real progress on a civil rights agenda," said Sen. John Kerry of Massachusetts.
Rep. Richard A. Gephardt of Missouri and Sens. John Edwards of North Carolina and Joseph I. Lieberman of Connecticut also issued swift condemnations. Mr. Lieberman said Mr. Bush "sided with the right wing of his party, and sent a signal that equal opportunity in higher education is a low priority for his administration."
Republican legislators and the White House called the Democratic comments political posturing.
"I'm so disappointed in Tom Daschle that the only thing he can find to talk about is race baiting," said Sen. Larry E. Craig, Idaho Republican. "That's really beneath his ability and talent, but it appears to be the only game he can play at this moment."
"It's just another indication that they will unashamedly play the race card every chance they get because they're so afraid of African-American support erosion," said Sen. Orrin G. Hatch, Utah Republican and incoming chairman of the Senate Judiciary Committee.
Bush spokesman Ari Fleischer also rebutted the Democratic attacks, saying that "to say because somebody disagrees with a position on matters dealing with race, it's wrong to suggest that means anybody in our society is against civil rights."
In the Michigan program, undergraduate applicants who are black, Hispanic or American Indian receive a 20-point bonus on a 150-point scale used to grade applications, while law school admissions officers try to construct classes with a sizable percent of minorities.
"To put this in perspective, a perfect SAT score is worth only 12 points in the Michigan system," Mr. Bush said in his speech. "Students who accumulate 100 points are generally admitted, so those 20 points awarded solely based on race are often the decisive factor."
"This means that students are being selected or rejected based primarily on the color of their skin. The motivation for such an admissions policy may be very good, but its result is discrimination, and that discrimination is wrong," he said.
Mr. Bush acknowledged that "racial prejudice is a reality in America" and said the nation should not be satisfied with the current numbers of minorities on college campuses.
Racism "hurts many of our citizens. As a nation, as a government, as individuals, we must be vigilant in responding to prejudice wherever we find it," he said. "Yet, as we work to address the wrong of racial prejudice, we must not use means that create another wrong, and thus perpetuate our divisions."
Rep. Elijah E. Cummings, Maryland Democrat and chairman of the Congressional Black Caucus, said that 15 percent of Michigan's law school students are members of racial or ethnic minorities, but color-blind admissions rules could drop that number to 4 percent.
He also said that policies such as Michigan's compensate for the academic deficiencies of the high schools that black and Hispanic students are more likely to have attended.
"We have yet to create a level playing field in preparatory education," he said.
Mr. Bush agreed with the sentiment and said in his speech that "our government must work to make college more affordable for students who come from economically disadvantaged backgrounds, and because we're committed to racial justice, we must make sure that America's public schools offer a quality education to every child from every background."
He said that he supports states that use "innovative ways to diversify their student bodies" that equal or sometimes surpass the figures achieved under racial quotas.
"Systems in California and Florida and Texas have proven that by guaranteeing admissions to the top students from high schools throughout the state, including low-income neighborhoods, colleges can attain broad racial diversity" without quotas, he said.
As governor of Texas, Mr. Bush supported a policy he calls "affirmative access," under which students graduating in the top 10 percent of all high schools would be eligible for admission to higher-education institutions.
Bob Barr, chairman of the American Conservative Union Foundation's Privacy and Freedom Center, criticized the White House brief's narrow focus as unprincipled and ineffective.
"If they simply take the position that the specifics of the Michigan case as applied are unconstitutional, then it will have a minimal effect on any other university or in any other jurisdiction," said Mr. Barr, a former Republican U.S. representative from Georgia.
"What they ought to do is to urge the court to find that affirmative action wherever and however it is applied is unconstitutional per se," he said.
Mr. Barr said the Democratic criticisms yesterday proved that the issue does not allow for difference-splitting.
"The administration is basically perceived as opposing affirmative action in this case. So if they are going to take the hit from liberals and affirmative-action advocates, they might as well be bold and make a real statement," he said.
Mr. Cummings said the Black Caucus will file its own brief before the justices supporting Michigan's policy. Mr. Gephardt, a Michigan law school graduate, said yesterday that he would do the same.
According to the senior administration official who discussed the scope of the brief, the White House's discussion of the Michigan case began with consultations in December between Solicitor General Theodore B. Olson and White House Counsel Al Gonzales.
In the final decision-making, which took place this week, Mr. Bush consulted with Mr. Gonzales, Chief of Staff Andrew H. Card Jr., chief political adviser Karl Rove and National Security Adviser Condoleezza Rice.
Mr. Bush, who has done well with Hispanic voters and has eagerly courted blacks, knew that any stance on the case would be politically charged, the official said. But politics was not a factor in the administration's deliberations, he added, pointing out that Mr. Rove had "not a greater nor lesser role than anyone else."
"I can tell you there was consensus among his staff," the official said.
Asked why Miss Rice was consulted on a domestic matter, he said that "as one of the president's senior advisers and as a former provost of a major university in America," referring to the security adviser's previous job at Stanford University, "obviously she had a great deal to offer to these discussions."
Ralph Z. Hallow contributed to this report.

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