Bush administration lawyers were still drafting a legal brief last night siding with white students in a landmark affirmative action case, rushing to meet a midnight deadline for filing it with the Supreme Court.
“Lawyers are doing what lawyers do and are working on the exact language,” White House Press Secretary Ari Fleischer told reporters aboard Air Force One. “The deadline is midnight tonight, and it’s still being drafted.”
Conservatives were eagerly awaiting the final version to see if it would live up to the principles the president laid out Wednesday, when he said the administration would oppose undergraduate and law school admissions policies at the University of Michigan that consider race when evaluating applicants.
“It ain’t over till it’s over,” said University of California Regent Ward Connerly.
The affirmative-action opponent said that the president sticking to what he promised yesterday, when he and White House officials indicated the brief would say Michigan’s program is unconstitutional but would make no sweeping assault on any use of race in admissions, would not be optimal, but it would be acceptable.
“I think that the president has taken a step that I can generally support, as long as there are no surprises in the brief itself namely, even tossing a bone at the possible use of race as one of many factors to achieve diversity,” he said.
“Anything that comes close to that would be a very bad brief,” said Mr. Connerly, architect of Proposition 209, the 1995 voter initiative barring preferences in California in hiring, education and contracting.
The Washington Times first reported last week that Solicitor General Theodore B. Olson had prepared a draft brief on the case and sent it to the White House, and first reported Tuesday that the administration had finally decided to oppose the Michigan policy.
The Bush lawyers were in contact with conservative legal groups yesterday who fretted that the administration would file a weak brief, leaving open the door to discrimination against students from such racial groups as whites and Asians that do not profit from affirmative action.
For example, lawyers from the White House Counsel’s Office, the Justice Department and the Solicitor General’s Office discussed the case yesterday with Roger Clegg, general counsel of the Center for Equal Opportunity.
“Based on my conversations, they’re still grappling with this,” Mr. Clegg said. “I don’t think that the lawyers writing the brief should be taking politics into account, but they have to do what the president tells them to do, and he certainly takes politics into account.”
Conservatives continued to warn that it would be better for the administration to remain silent than to file a brief that would rank racial diversity above academic merit as a criteria for college admission.
Although Mr. Bush on Wednesday condemned the University of Michigan’s practice of giving 20 points to minority students on a 150-point admission scale, he also lauded the general goal of increasing racial diversity at public universities. This did not please purists on the issue.
“The conservatives I’ve talked with have not been terribly happy,” Mr. Clegg said. “The suggestion that admissions criteria should be adopted with an idea of achieving a particular racial and ethnic mix is problematic.”
Some conservatives expressed puzzlement that the administration would consider a watered-down brief.
“I think that’s precisely what they’re trying to do, and to me it doesn’t make any sense because they’re going to take the hit from the other side no matter what,” said former Rep. Bob Barr, who said he was nonetheless pleased the administration took a stand at all.
Democrats were not pleased with the stance the president seemed to be taking.
“Then what is he for? That’s the question,” said Sen. Charles E. Schumer, New York Democrat.
Mr. Schumer contrasted Mr. Bush with former Republican vice-presidential nominee Jack Kemp.
“Jack Kemp was a conservative who really came up with a program to help the inner city. I respect him for it,” Mr. Schumer said. “They don’t have to do it the Democratic way, but let them do it some way other than just photo ops and words.”
Senate Minority Leader Tom Daschle said the matter is bigger than the Michigan case.
“I think it has effects that go way beyond the University of Michigan. I think it sends a shock wave through the community, and I think it’s something that has to be addressed,” he said.