DOJ files in affirmative-action cases

By MICHAEL KIRKLAND, UPI Legal Affairs Correspondent

WASHINGTON, Jan. 17 (UPI) -- The Justice Department backed up President Bush's words by filing two briefs with the Supreme Court challenging race-based admissions policies at the University of Michigan.

The briefs said the school's admissions policies violated the Constitution and Supreme Court precedent.


Thursday was the deadline for filing friend of the court briefs supporting suits filed by white students against the school's affirmative action policy in undergraduate admissions and its Law School. Copies of the briefs were passed out to the media shortly before the midnight deadline.

In a news conference Wednesday, Bush called the Michigan policy "a quota system."

"At their core, the Michigan policies amount to a quota system that unfairly rewards or penalizes prospective students, based solely on their race," Bush said.

He said the policies were "impossible to square with the Constitution."

The president's very public announcement surprised some of his critics. The Justice Department was not invited to file a brief in the case by the Supreme Court, but instead acted on its own under the president's orders.


The move came at the same time the Republican Party is conducting an outreach program for minority voters.

Bush said that diversity is a worthy goal, but there were other means of achieving it besides Michigan's "quota" system.

University President Mary Sue Coleman immediately issued a statement saying Bush "misunderstands how our admissions policy works at the University of Michigan." Coleman said the admissions process takes many factors into account, including race and economic disadvantages, and considers each student's background.

"We have not, and have never had, quotas or numerical targets in either the undergraduate or Law School admissions program," Coleman said.

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

In the other, a federal judge upheld the use of racial preferences in the general undergraduate 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, Justice Lewis Powell said that racial and ethnic classifications by government "are inherently suspect and call for the most exacting judicial scrutiny."

While conceding that the "goal of achieving a diverse student body is sufficiently compelling to justify consideration of race in admissions decisions under some circumstances," he said that the California admissions policy, "which forecloses consideration to persons like (Alan Bakke), is unnecessary to the achievement of this compelling goal and therefore invalid under the equal protection clause."


The Supreme Court did three things in its decision: It ordered Bakke's admission; it struck down the California admissions policy; and, 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 Bush administration took issue with that conclusion in its own filings.

In a brief filed late Thursday by the Justice Department, U.S. Solicitor General Theodore 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."

When schools take such deviations, Olson said, they have two options. In the first, they can employ racial quotas or set asides directly. "That is the course the University (of Michigan) chose in its 1995-1998 (undergraduate) admissions policy, which set aside a target number of seats in each entering class for preferred minorities and shielded those minorities from competition with the rest of the applicant pool," Olson said. "That is the kind of two-track admissions system the (Supreme) Court condemned in Bakke. That is also the (current) approach the Law School has taken ...."


The second option is meeting such quotas indirectly by giving preferred minorities a "bonus" in admissions evaluation based solely on their race. "That is the course the university has chosen in its current (undergraduate) admissions policy," Olson said. "But whether the school adopts an actual quota or simply awards a race-based bonus consistent with such a quota, its admissions policy is inconsistent with this court's precedents."

Olson argued that the University of Michigan "has failed to employ race-neutral alternatives that have proven effective in meeting the important and laudable goals of educational openness, accessibility and diversity in other states ... "

Several other states, including Texas, California and Florida, accept the top graduates of each high school, or use other race-neutral means in an attempt at diversity. The University of Michigan's policies violate the equal protection clause of the 14th Amendment, Olson said.

The Supreme Court will hear the cases this spring.

In a number of cases involving race-based government actions heard by the Supreme Court during the 1990s, the court usually has split 5-4 along its ideological schism to declare such actions unconstitutional.

However, Justice Sandra Day O'Connor, part of that consistent five-justice majority, has written separately to say that race-based government actions may be permitted when there is a "compelling" governmental interest in doing so -- such as to remedy ongoing, rather than historical discrimination.


The outcome of the University of Michigan cases might depend on which side captures O'Connor's vote.

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


(No 2. 02-241, Grutter vs. Bollinger et al; 02-516, Gratz and Hamacher vs. Bollinger et al.)

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