After Supreme Court Rulings on Race: Silence

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By PETER SCHMIDT

Washington

Many of President Bush's top appointees have been prominent critics of affirmative action. But they failed to persuade him to take a hard line against race-conscious college admissions policies in two cases decided by the U.S. Supreme Court in 2003, and administration officials have done little since then to make colleges comply with the limits on such policies set forth in the court's rulings.

Both of the 2003 rulings involved lawsuits against the University of Michigan at Ann Arbor. The cases had offered the Supreme Court a chance to reshape affirmative action at selective colleges throughout the nation for the first time since 1978, when the court held in Regents of the University of California v. Bakke that colleges could not use racial quotas but could give some extra consideration to minority applicants to promote campus diversity.

The Michigan cases were seen as so significant that more than 300 organizations, including scores of colleges and higher-education associations, joined in submitting friend-of-the-court briefs to the justices. Many court observers believed that the White House had the opportunity to submit briefs that would play a pivotal role in the outcome.

Behind the scenes, the White House was torn between appointees who strongly opposed race-conscious college-admissions policies and those who feared alienating minority voters. Among the advocates of a strong stand against race-conscious admissions policies were several top Justice Department lawyers and U.S. Solicitor General Theodore B. Olson.

Among those who favored keeping race-conscious admissions intact were several of the president's top aides, including his White House counsel, Alberto R. Gonzales, and Condoleezza Rice, his national-security adviser.

So bitter was the debate that last fall, nearly three years later, some leading conservatives opposed President Bush's nomination of his longtime aide, Harriet E. Miers, to the Supreme Court partly because they suspected she had been among those urging him to seek to preserve race-conscious admissions.

Both liberals and conservatives have denounced the position that the White House ended up taking in the cases as a split-the-baby compromise that did little for either side. The briefs that the Justice Department submitted to the court stopped short of arguing that all race-conscious admissions policies were unconstitutional, but urged the justices to strike down Michigan's policies as quotas, and offered such a narrow definition of a legally acceptable race-conscious policy that most colleges would be outside the law.

The Supreme Court's decisions, taken together, upheld the use of race-conscious admissions, but said colleges should weigh race-neutral means of promoting diversity, and should consider applicants as individuals and not treat whole groups of applicants differently based on their race.

President Bush, who had previously delivered remarks denouncing Michigan's policies as "fundamentally flawed," issued a statement applauding the court's decisions as seeking "a careful balance between the goal of campus diversity and the fundamental principle of equal treatment under the law."

The Education Department's Office for Civil Rights had promptly issued legal guidance to colleges in response to both the Supreme Court's 1978 Bakke decision and a 1996 ruling, by the U.S. Court of Appeals for the Fifth Circuit, striking down the use of race-conscious admissions by the University of Texas School of Law, in Austin. But nearly three years after the Michigan affirmative-action decision, the civil-rights office has yet to say how it interprets the rulings. All it has published so far in connection with the rulings are brochures suggesting race-neutral ways to diversify college enrollments.

In an interview this month, Stephanie J. Monroe, who took over as the leader of the civil-rights office in December, said, "We are discussing whether or not we think official guidance would be appropriate."