- The Washington Times - Thursday, January 9, 2003

President Bush is unlikely to join a Supreme Court battle over whether public universities may favor racial or ethnic groups for admissions.

Two sources close to the administration deliberations told The Washington Times that the White House has received a legal brief from the Justice Department backing white students who say they were denied admission to the University of Michigan because of "race-conscious measures."

"A brief that opponents of racial preferences would be happy with was drafted and submitted to the White House," said one person who spoke on the condition of anonymity. "I hope the White House will not let its political considerations override the reasoned analysis of the Justice Department."

However, the consensus among administration officials working on the issue is that the White House will not file any brief with the Supreme Court. But several sources said things could change before the Jan. 16 filing deadline.

Many lawyers, who have opposing views on affirmative action, indicated that racism accusations that unseated Mississippi Sen. Trent Lott as Senate Republican leader also limited the president's political options to oppose "affirmative action" in public education. Mr. Bush has long supported racial-diversity initiatives based on merit.

Before what one lawyer called "the Lott mess," affirmative-action opponents had expected the Bush administration to go on record against plans such as those challenged in Michigan. Now, there's plenty of speculation.

"Lott's mess likely makes the White House's decision-making process on this issue slightly more complicated, but only from a political perspective," said Leslie Thornton, who was chief of staff in the Department of Education during much of the Clinton era and now is a partner at Patton Boggs law firm.

She doubted the Lott affair was likely to convert Mr. Bush on affirmative action.

"Before Lott, there was no chance the administration would have supported affirmative action in the Supreme Court and some chance it might have officially opposed it. After Lott, the Bush administration probably calculates it can still get away with not supporting affirmative action by doing nothing next week, but not with actually opposing it," Ms. Thornton said.

Opponents of the Michigan program say the extreme would be a political switch to favor such programs, which appears highly unlikely. They also declined suggestions that the administration take a neutral stance and simply favor diversity.

Justices are expected to hear arguments by April on appeals from white students who say they were refused admission to University of Michigan undergraduate schools because of race-conscious practices. Those measures include factoring a 20-point bonus for American Indian, black and Hispanic undergraduate applicants, and other less-specific plans that promote diversity in its law school.

The key question before the Supreme Court is whether racial preferences by tax-supported universities violate the 14th Amendment's equal protection clause. If the court rules they do, public higher-education programs would have the task of showing a "compelling interest" to increase racial diversity.

Justices did not ask Solicitor General Theodore B. Olson to file a brief, as they often do.

One affirmative-action advocate knowledgeable about Michigan's program was skeptical that the administration would pass up the opportunity to oppose it.

"The news would be if Ted Olson did the unpredictable and filed in support of affirmative action. Man bites dog. I'm not sure that would influence the justices, but it would have considerable impact on the editorial pages," the source said.

White House spokesmen said that the president has a stated preference for merit-based "affirmative access." They said the filing decision is under review by the Justice Department, which did not comment.

The University of Michigan student newspaper advised the president in an editorial on Monday to "Get off the fence" and support affirmative action.

A coalition of 11 Hispanic groups yesterday dispatched a letter citing political reasons why Mr. Bush should support the use of race as an admissions factor to help equalize the percentage of Latinos pursuing college degrees.

"We urge you to keep your commitment to the Latino community and support us in our endeavor to keep in place the modest type of affirmative action before the Supreme Court now," said the letter, whose signers include the U.S. Hispanic Chamber of Commerce, League of United Latin American Citizens and the National Council of La Raza.

Mr. Bush spelled out his "affirmative access" stand during a presidential campaign debate in October 2000, drawing attention to the guaranteed admission for the top 10 percent of high school classes to Texas public colleges.

"In Texas that increased diversity based on merit," White House spokesman Scott McClellan said.

Curt A. Levey, spokesman for the Center for Individual Rights, which would welcome presidential support for the white students it represents, said his organization is focused on what the Supreme Court, not the White House, will do.

"Racial preferences are just a form of racial politics," Mr. Levey said. "I think the Lott situation is a good example of why it is wrong for the government to play with race."

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