- The Washington Times - Saturday, January 18, 2003

The Bush administration told the Supreme Court in filings made public yesterday that University of Michigan race preferences are so clearly unconstitutional that the justices could skip over deciding whether race ever may be a factor in admitting high school graduates.
Solicitor General Theodore B. Olson raised the volatile issue in one of two amicus curiae friend of the court briefs without suggesting an answer and, in the second brief, told the court it "need not reach that question in this case."
Mr. Olson's brief argument is something of a straddle because he expressed doubt that conditions ever would justify using racial factors. And despite all the attention the administration's brief has attracted, it might not matter at all to the justices.
The brief which, like all briefs, is only the opinion of lawyers binds no one. The court can take some of the advice, all of it or none of it.
He pointed out that the trial court "ruled that no Supreme Court decision has explicitly" knocked down racial preferences used to promote diversity.
But because he didn't ask the court to resolve that question, several lawyers suggested the sentence might have been an artifact from an earlier draft left behind in the rush to file.
Mr. Olson followed through on President Bush's commitment to oppose Michigan's 150-point system that rewards three "preferred minorities." It gives 12 points for a perfect SAT and 20 for being black, Hispanic or American Indian, "a disguised racial quota" that is unconstitutional under a 1995 decision requiring governments to treat people as individuals, Mr. Olson said.
It "amounts to a forbidden racial quota that has no logical stopping point," he told the high court.
Mr. Olson's argument unsettles some of the president's friends. "That's a punt. It's the core issue in the case. It's very important. If the Supreme Court doesn't reach it, then I think it's very unlikely this kind of discrimination is going to stop," said Roger Clegg, counsel for the Center for Equal Opportunity.
Mr. Clegg said a fact-intensive ruling focused on Michigan's program alone would not resolve the division among circuit courts that apparently led justices to hear the appeal.
National Security Adviser Condoleezza Rice declared that she believes race considerations may be used to achieve diversity on campus.
"While race-neutral means are preferable, it is appropriate to use race as one factor among others in achieving a diverse student body," Miss Rice, former provost of Stanford University and one of several blacks in President Bush's inner circle, said in a rare written statement.
While some conservatives appeared divided, the filings were welcomed by Curt A. Levey, legal director at the Center for Individual Rights, which represents the three white students turned away from the University of Michigan in favor of less-qualified minority students.
"We got 99 percent of what we asked for, because everything Ted Olson says about race-neutral alternatives also applies to every other school in the country. So the comment about not reaching the question is largely meaningless," he said.
Edward Blum, legal director of the American Civil Rights Institute, scolded Miss Rice.
"This appears to be Condi Rice's personal footnote to the brief the Bush administration just filed at the high court," Mr. Blum said. "This is a startlingly disappointing comment for an administration official to make after the president has just issued his most important statement on affirmative action to the highest court in the land."
Ralph Neas of the People for the American Way was pleased and invoked the name of Secretary of State Colin L. Powell, who long has been on record with criticisms of Republican affirmative-action positions.
"It is very good news that Condoleezza Rice agrees with Colin Powell's long-standing belief that it is appropriate to use race as one factor among others in achieving a diverse student body," he said.
John Payton of Washington, the lead attorney for the University of Michigan, has until Feb. 18 to reply in court and did not respond to a request for comment.
Democrats attacked the filing and said they will keep confronting Republicans with the president's decision. Senate Democratic Leader Tom Daschle of South Dakota asked the Senate to go on record endorsing the university's program.
Sen. Rick Santorum, Pennsylvania Republican and third in the Republican leadership, objected to Mr. Daschle's motion, while other Republican senators readied a resolution to the contrary.
Mr. Connerly, the University of California regent and architect of California's voter initiative that bars preferences in government hiring, contracting and education, said he generally is pleased, but has mixed feelings about the absence of a stand on whether race ever can be a factor.
"I'm disappointed that they did not address that head-on, and I don't believe the court will escape it, but essentially the brief says, 'We'll let somebody else take the heat for that one,'" Mr. Connerly said. "I'm disappointed they did not say that race should not be used, period."
Mr. Olson repeatedly told the justices that success by three state merit-based programs precludes the contention that there is no race-neutral alternative.
"The experience of Texas, Florida and California, and their success in maintaining truly diverse student bodies under race-neutral admissions standards, proves to the contrary," Mr. Olson wrote.
Texas guarantees that high school students graduating in their schools' top 10 percent will be accepted at the major state universities; Florida has a 20 percent plan, but does not guarantee admission to its marquee universities; and the eight-school University of California system guarantees admission to the top 4 percent of each high school.
Endorsement of Texas' 10 percent plan was challenged by former University of Michigan President Lee Bollinger.
"That particular type of solution, which is inadequate in many ways, does not touch graduate schools. It really requires for its effectiveness an underlying segregated system of high schools. Ironically, it is also probably closest to a quota in the way it is constructed," he said. Mr. Bollinger is the president of Columbia University.
"Mark my words," said Sen. Hillary Rodham Clinton, New York Democrat. "There are already people at the Federalist Society and elsewhere writing the briefs to attack the 10 percent plan as well."


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