CBSN

Bush Eyes Affirmative Action Case

affirmative action generic race
AP / CBS
The Bush administration, unfazed by recent controversies over Republicans and race, is leaning toward weighing in against affirmative action in a crucial case now before the Supreme Court.

And White House lawyers intend to use arguments issued by the Clinton administration, which was popular among blacks, to bolster its case.

White House and Justice Department lawyers, acting on guidance from the president himself, are drafting a proposed Supreme Court brief arguing against programs that gave black and Hispanic students an edge when applying to the University of Michigan and its law school, three senior administration officials said.

Mr. Bush is awaiting those briefs before deciding his course of action, the officials said, adding that all signs point toward the White House intervening in the biggest affirmative action case in a generation.

The University of Michigan case was brought by a white applicant to the law school, who claims the school's policy of awarding points to minority applicants violated her civil rights.

About 15 percent of the first year Michigan law students are minorities. The Supreme Court was told that without diversity considerations, the number of minorities in a freshman class could plunge to less than .04 percent.

The stakes are enormous. CBS News Legal Consultant Andrew Cohen reports that if the court strikes down the school's affirmative action policies, no such policy in the country will be valid

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

Opposition to affirmative action is Republican doctrine: the party's 2000 platform states, "We believe rights inhere in individuals, not in groups. We will attain our nation's goal of equal opportunity without quotas or other forms of preferential treatment."

But 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. Mr. 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.

But the president already demonstrated he is not timid on delicate racial issues when he re-nominated Judge Charles Pickering to a key federal judgeship last week. Pickering lost an earlier Senate nomination vote partly because of what critics said was a poor record on civil rights.

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 potential landmark cases.

Aides said last week that Mr. Bush was unlikely to sit on the sidelines. At the least, aides said, Mr. Bush would find a public forum to express his opposition to racial preferences and support of alternatives that strive for diversity.

At the president's behest, deliberations have been limited to an unusually small circle of aides at the White House and the offices of attorney general and solicitor general.

Among the Clinton-era 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.

Legal briefs opposing affirmative action are due to the court Thursday, and briefs supporting the Michigan admissions plans are due in February.

White House press secretary Ari Fleischer said earlier Monday that Mr. Bush was still reviewing the matter.

"(The president) is very sensitive to issues involving race and giving opportunities to people from a variety of backgrounds while also giving opportunities in a manner for one and for all in our country," Fleischer said.

In Texas, Mr. 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 made up largely of minority students; critics said Mr. Bush's plan was a blow to affirmative action.

The president's brother, Gov. Jeb Bush of Florida, stirred controversy when he moved to eliminate affirmative action programs at state colleges and universities in 1999.