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Posted on 01/16/2003 8:39:38 PM PST by TLBSHOW
Bush administration skirts key legal question in affirmative action case
By ANNE GEARAN, Associated Press Writer
WASHINGTON - Though siding with white students in a new legal case, the Bush administration will not ask the Supreme Court to overturn an affirmative action ruling that for 25 years has allowed an applicant's race to be a factor in university admissions.
In legal papers due Thursday, the administration was staking a narrow position opposing the race-conscious admissions policies now before the Supreme Court but was offering no guidance to the justices on the key question of whether they should scrap the 1978 ruling known as Bakke, a White House official said.
The government's brief says there is no need to address the issue of what the outer bounds of the Constitution may or may not permit, said the official, who spoke on condition of anonymity.
Even without looking at the Bakke ruling, admissions policies at the University of Michigan and its law school fail the constitutional test of equal treatment for everyone, the official said.
President George W. Bush (news - web sites) on Wednesday said those policies amounted to de facto quotas that are "divisive, unfair and impossible to square with the Constitution."
The case marks the court's first statement on racial preference programs in academic admissions since the Bakke case, which affirmative action critics and backers alike say has muddied the waters for a quarter century.
The 1978 case, the last college affirmative action case at the high court, involved Allan Bakke, a white man rejected for admission to a California medical school while minorities with lower test scores got in through a special program.
The court on a 5-4 vote outlawed racial quotas in university admissions, but left room for race to be a "plus factor." Michigan and many other public universities have used the ruling to design programs that can help minorities who might be rejected if only test scores and grades are considered.
In practice, that has "become a wholesale invitation to ... mechanically admit students who have questionable academic credentials and records merely because they self-identify themselves as falling within a favored category," said Catholic University law school dean Douglas Kmiec, who supports the Bush position.
The administration is not a party to the Michigan fight and did not have to take any position. Affirmative action, however, is the most watched issue before the high court this year and it would have been unusual for the White House to remain on the sidelines.
The issue is politically touchy because it is seemingly impossible to please both Bush's conservative political base and the Hispanic and black voters the Republican party hopes to attract during what is presumed to be Bush's re-election campaign next year.
The deadline for filing court papers in the Michigan case also came close on the awkward, racially charged exit of Trent Lott as the Senate's Republican leader. Bush condemned remarks Lott made last month that seemed to long for the days of segregation.
The high court, which will hear arguments on the case in March, could conclude that race can never be a factor when a government-funded school decides whom to let in.
That position would eliminate the leeway from the Bakke case.
The court, which is expected to rule by summer, could redraw the rules for when race may be considered.
Applicants for Michigan's undergraduate classes are scored by points, with minorities or some poor applicants receiving a boost of 20 points on a scale of 150. At the law school, admissions officers use a looser formula that tries to make sure that each class has about 10 percent or 12 percent minority enrollment.
The administration says the point system is skewed toward minorities, noting that a perfect SAT score is worth just 12 points, and an outstanding essay gets three points.
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Another screaming success story.
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