- The Washington Times - Monday, March 10, 2003

WASHINGTON, March 10 (UPI) — The Supreme Court Monday gave the Bush administration formal permission to participate in argument challenging affirmative-action admissions policies at the University of Michigan.

The two cases — one challenging the admissions policy for undergraduates, the other the admissions policy for the Law School — are scheduled April 1.

The Justice Department has already filed friend-of-the-court briefs in both cases supporting challenges by white students who say minorities are getting an unconstitutional advantage in admissions.

Monday's order granting permission for the department to participate in the argument was not unexpected. However, the Supreme Court originally did not invite the administration to file briefs in the cases. The administration acted on its own initiative.

Because of the importance of the cases, U.S. Solicitor General Theodore Olson is expected to argue the government's position before the justices.

The government briefs, filed in January after President Bush took a public position against the school, said the school's admissions policies violated the Constitution and Supreme Court precedent.

In a news conference, Bush called the Michigan policy "a quota system," and said it was "divisive, unfair and impossible to square with the Constitution."

The university has consistently denied using a quota system. Black and some Hispanic applicants are given bonus points in an admissions evaluation system because of their race.

In a brief filed in January, Olson told the Supreme Court that the undergraduate and Law School admissions cases "demonstrate the pernicious consequences that result when public institutions deviate from this court's precedents by ignoring race-neutral alternatives and employing race-based polices that amount to racial quotas."

In one of the cases before the Supreme Court, a federal appeals court upheld the Law School's use of racial preferences in admissions policy to increase the number of minority students.

In the other, a federal judge upheld the use of racial preferences in the general admissions policy of the university as a whole. The challengers in the second case successfully asked the Supreme Court to review the dispute at once, despite the fact that an appeals court has not yet ruled on the matter.

The challengers in both cases are white applicants who were denied admission to the Law School or the university, but who would have been admitted had they been members of a racial minority.

The challengers cite the equal protection clause of the 14th Amendment — equal protection under the law — and Title VI of the 1964 Civil Rights Act, which bans discrimination based on "race, color or national origin."

The University of Michigan cases may ultimately turn on an earlier Supreme Court precedent — 1978's University of California Regents vs. Bakke. In Bakke, a white applicant to the University of California Medical School at Davis was denied admission, even though less-qualified minority applicants were allowed to enroll.

Eventually, a 5-4 Supreme Court majority ruled that school admissions policies could take race into account, but they couldn't do so in a way that violated the Constitution's guarantee of equal protection for individual students.

In the prevailing opinion, the late Justice Lewis Powell said that racial and ethnic classifications by government "are inherently suspect and call for the most exacting judicial scrutiny."

The Supreme Court did three things in its 1978 decision: It ordered Bakke's admission. It struck down the California admissions policy. But it also, for the first time, said race-based admissions policies could be constitutional.

The University of Michigan, in briefs filed last year, told the Supreme Court that Bakke continues to be good law.

The school said Bakke allows race to be one of the factors, if not the only factor, in an admissions policy.

Moreover, the school said a new Supreme Court decision overturning Bakke "would produce the immediate re-segregation of many — and perhaps most — of this nation's finest and most selective institutions."

The Supreme Court should decide the cases before the summer recess in late June or early July.

(No. 02-241, Grutter vs. Bollinger et al; and 02-516, Gratz and Hamacher vs. Bollinger et al.)

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