The Magazine

Race and the Republicans

The Bush administration shouldn't be afraid to file a brief defending race-neutral admissions in the Michigan affirmative action cases.

Dec 30, 2002, Vol. 8, No. 16 • By TERRY EASTLAND
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"Senator Trent Lott's lament that Strom Thurmond lost his segregationist campaign for the White House in 1948 . . . is already influencing an internal Bush administration debate on what approach to take on a major affirmative action case.

"Perhaps most striking, a senior administration official said today that Mr. Lott's statement of support for affirmative action . . . has complicated a developing debate within the administration over a coming Supreme Court case. . . .

"The official said an internal debate had already developed over what position the administration should take in an appeal involving the University of Michigan's affirmative action programs.

"'The Lott business has been like a powerful magnet distorting the debate on this,' the official said."

--New York Times, December 19, 2002

DISTORTING THE DEBATE? How so? The only ways we can think of would be bad. The Michigan cases offer an especially timely opportunity for the Bush administration to take a stand in favor of nondiscrimination and equality of treatment. But "the Lott business," which may not be over just because the majority leader has resigned his position, may be influencing the administration to move in the wrong direction.

In the University of Michigan cases about to be heard by the Supreme Court--Grutter v. Bollinger and Gratz v. Bollinger, which respectively challenge the race-conscious admissions policy at the law school and at the undergraduate level--the government isn't a party. So if the administration enters the cases at all, it must do so as an amicus curiae, or friend of the court. Thus the choices before the White House are: Don't file at all, file in support of Michigan, or file in support of the plaintiffs. If it supports the plaintiffs, the administration can make either a timid or a full-throated argument. The former would indulge discriminatory admissions. The latter would ask that the discrimination end, now.

The right choice is to join the plaintiffs and make a full-throated argument against race discrimination. But all the wrong choices are not equally bad.

Here let us pause to introduce essential facts and the key legal issue. The undergraduate school gives applicants "points," with 100 (out of a possible 150) usually enough to establish admission. A perfect SAT score, for instance, will net you 12 points. Being African American, Hispanic, or American Indian is worth 20 points. Awarding those (and only those) minorities 20 points on account of their skin color or country of origin has been deemed necessary to keep their enrollment at more or less the same level as under the old quota system abandoned in 1998 (after it became public knowledge).

The law school similarly favors applicants from these three groups. It gives such weight to race and ethnicity that the odds of admission for minority students are far greater than for non-minority students with similar academic records. The point of the weighting is to guarantee each class a "critical mass" of minority students--at least 10 percent.

The main legal issue is the same in both cases. The equal protection clause of the Fourteenth Amendment says that no state shall "deny to any person within its jurisdiction the equal protection of the laws." The Michigan schools, of course, are state schools. The question before the Court is whether the schools' use of race in deciding which students to admit violates the equal protection guarantee. The test the Court has elaborated to answer such a question is whether the use of race is "narrowly tailored" to achieve a "compelling interest." In other words, you must have very good reasons for using race, and there must be no other way to achieve your goals except by its very careful, indeed surgical, use.

Now, we can well imagine there are administration officials wanting to sit on the sidelines, so as to avoid being pulled into the Lott firestorm. But sitting out this case would be odd, not to say cowardly, since so far as we can tell no administration (whether Republican or Democratic) has ever failed to file a brief in an affirmative action case being reviewed by the Supreme Court. That said, it would be better to stay out than to get in and merely argue such technicalities as whether or not the university's use of race is "narrowly tailored."

It is certainly possible to approach the Michigan cases in such terms, while dodging the larger constitutional issue. Some of the judges in the litigation have done just that. Uses of race are almost always loosely tailored, if tailored at all, and Michigan's policies share that problem. But the difficulty with arguing for better tailoring is that the argument is almost never imaginative enough to confront all the ways those determined to use race will try to do so. The argument is too weak an instrument to put a halt to discriminatory admissions.