Bush May Enter Affirmative Action Case...

By Ron Fournier
AP White House Correspondent
Friday, January 10, 2003; 8:56 PM

WASHINGTON –– Bush administration lawyers are laying the groundwork to oppose a University of Michigan program that gives preference to minority students, a step that would inject President Bush into the biggest affirmative action case in a generation.

Bush himself has not decided what role, if any, the administration will play in the landmark case but several officials said Friday night he is unlikely to stay on the sidelines. White House political allies are planning to intervene against the Michigan program nonetheless.

The administration officials, who spoke on condition of anonymity, pointed to Bush's record in Texas and their continuing review of Clinton administration affirmative action cases as signs that the president is inclined to oppose the university's policies. Furthermore, he is likely to suggest alternatives to racial preferences that still promote diversity, officials said.

Bush is awaiting formal recommendations from Justice Department and White House lawyers before making his decision.

The Supreme Court, in its most important case this year, is expected to rule on the constitutionality of programs that gave black and Hispanic students an edge when applying to the University of Michigan and its law school.

The issue is a lightning rod both for conservative voters who back Bush and for minority voters, whom Republicans are courting.

Further complicating the White House's decision is the fallout for the GOP from the racially provocative comments that cost Sen. Trent Lott, R-Miss., his job as Senate majority leader. Bush denounced Lott's remarks, which were widely interpreted as nostalgia for segregation.

Siding with white students so soon after the Lott controversy could be seen as an affront to blacks.

The administration is not a party to the Michigan fight and does not have to take a position. Traditionally, however, the White House weighs in on potentially landmark cases.

Bush must decide soon. Legal briefs opposing affirmative action are due to the court Jan. 16, and briefs supporting the Michigan admissions plans are due in February.

Lawyers for political allies of the White House are drafting friend-of-the-court briefs arguing that the University of Michigan policy is unconstitutional, administration officials said.

The Justice Department is awaiting word from Bush on whether to file a brief of its own. At the least, Bush is expected to take a public stand on the matter and explain his position that racial quotas are not needed to foster diversity, officials said.

In Texas, Bush opposed racial preferences in public universities and proposed instead that students graduating in the top 10 percent of all high schools be eligible for admission. Supporters say the policy increased diversity because many schools are largely minority.

Among the cases that would bolster their argument against the University of Michigan, officials said, is a 1997 affirmative action suit that supported a white high school teacher's claim that she suffered reverse discrimination when laid off from her job. A black teacher was retained.

The Clinton administration argued that the school district's affirmative action policy went too far and could not be justified merely by the notion that a diverse teacher corps is a worthy goal.

"A simple desire to promote diversity for its own sake ... is not a permissible basis for taking race into account," the government said then.

The brief was largely written by Walter Dellinger, former head of the Office of Legal Counsel and later the Clinton administration's acting solicitor general. Administration lawyers consider at least one other Dellinger brief, a case involving a Wisconsin teacher, as further basis to argue against the University of Michigan policy.

Contacted Friday, Dellinger said the reasoning assumed that there is some role for affirmative action but noted that the tool can be wrongly used.

"The general position taken was that while the use of race is sometimes permissible in educational settings, it must be narrowly tailored and shown to advance important educational goals," he said.

In a 1995 memo analyzing the effects of a Supreme Court case over affirmative action in government contracting, the Clinton administration's Justice Department's Office of Legal Counsel noted that the Supreme Court has consistently rejected racial balancing as a goal of affirmative action.

"To the extent that affirmative action is used to foster racial and ethnic diversity, the government must seek some further objective beyond the achievement of diversity itself," said the memo, largely written by Dellinger.

He's in, well, maybe:

"Bush May Enter Affirmative Action Case"

He's torn:

White House torn over affirmative action case

He's out:

White House set to stay out of affirmative-action case - Washington Times - January 9, 2003

White House Set To Stay Out Of Affirmative Action Case

For once, Bush, would you take a stand?:

Bush must take a stand on affirmative action

Affirmative Action Faces a New Wave of Anger

He's defending affirmative action:

Bush administration to defend affirmative action

Bush to defend affirmative action policy

Bush selling out for votes, you're kidding:

Bush selling out on Affirmative Action to get votes

Never-Ending Supreme Court Case Has Bush Fighting for Affirmative Action

Bush Administration Defends Affirmative Action

Reuters
By James Vicini
Friday August 10 8:52 PM ET
Source

WASHINGTON (Reuters) - Disappointing conservatives who wanted the government to switch sides, the Bush administration urged the U.S. Supreme Court (news - web sites) on Friday to uphold a federal affirmative action program .

The Republican administration defended the Transportation Department's highway construction program that favors minority and disadvantaged businesses, maintaining the position the previous Democratic administration adopted a day before President Bill Clinton left office.

Solicitor General Theodore Olson said the program's regulations were ``narrowly tailored to serve a compelling government interest'' and that ``Congress has a compelling interest in eliminating discrimination and its effects on government spending and procurement.''

The closely watched case marked the first test of affirmative action during George W. Bush's presidency, and drew sharp criticism from opponents of racial preferences.

Linda Chavez, president of the Center for Equal Opportunity, said, ``I think this is not only horrendous policy, I think it is bad politics.''

Chavez, who was named by Bush to be labor secretary but withdrew after a furor erupted over a domestic worker living in her home, said federal contracting would have been an easy case for the administration to draw the line against racial preferences.

``To cave in so early bodes poorly for the administration taking a stand later on,'' she said. ``I think the motivation behind this decision was political.''

CONSERVATIVES HOPED FOR CHANGE

Conservatives opposed to affirmative action had hoped the Bush White House would change the government's position on the issue, based on the president's stand during the campaign and prior statements by top administration officials.

During the campaign, Bush opposed affirmative action programs that used racial quotas, but generally supported greater opportunity for minorities, calling it ``affirmative access.''

Olson, the government's chief advocate before the high court, has previously been critical of affirmative action programs. As a senator from Missouri, Attorney General John Ashcroft (news - web sites) opposed the contracting program.

Former Attorney General Edwin Meese and Chapman University law professor John Eastman, in an article published in the Washington Times on Friday, cited a 1998 speech by then-Sen. Ashcroft opposing use of race classifications in federal law.

Bush and Ashcroft should ``place government-sanctioned racial discrimination back where it belongs -- in the course of ultimate extinction,'' Meese, a top White House aide and attorney general during Ronald Reagan (news - web sites)'s presidency in the 1980s, and Eastman wrote.

The case began 11 years ago to the day when Adarand Construction Inc., a Colorado construction highway firm owned by a white man, initially sued over a 1990 program that set aside construction contracts for minority businesses.

The Supreme Court in a 1995 ruling in the case imposed tough new standards before the government can give preferences for minorities.

After the ruling, Congress reauthorized the law and the Transportation Department revised the program.

A U.S. appeals court upheld the revised program, and the Supreme Court then agreed to hear Adarand's latest argument that the program amounted to unlawful race discrimination.

Olson urged the high court to affirm the appeals court's decision. ``Eliminating racial discrimination and its effects remains one of the nation's greatest challenges,' he said in the 50-page brief.

The current program ``is not unconstitutional on its face,'' Olson said.

He argued that ``discrimination, not race, is the key'' to getting status as a disadvantaged business, and that the regulations seek to limit that status to firms owned by individuals who have suffered the effects of bias.

The high court will hear the case in its term that begins in October, with a decision due by the end of June.

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