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PostWatch: An irregular correction to the Washington Post

Brought to you by Christopher Rake


Friday, January 17, 2003
10:20 AM

There seems to be very little analysis of whatever the heck was in the brief filed last night by solicotor general Ted Olson in the Michigan affirmative action case. The print edition of the Post doesn't have it. No Insta, no Volokh, no NRO. This readout from Neil Lewis at the New York Times doesn't sound good:

In the briefs, filed minutes before the midnight deadline for the administration to become involved in the most important affirmative action case in a quarter-century, the Justice Department said both schools had violated the Constitution's guarantee of equal protection in their efforts to enroll more minority students. Moreover, the administration lawyers argued that there were several race-neutral ways the university could go about trying to increase its minority population...

The administration also said the programs could be deemed unconstitutional without upsetting any of the court's precedents. That means the administration is not asking the court to overturn the 1978 landmark ruling in the Bakke case that said race could be used as a factor in university admissions.

Here's why that's a bad idea:

In a separate brief filed today on behalf of the Center for Equal Opportunity, a group that opposes most affirmative action programs, Roger Clegg, the group's counsel, outlined that concern.

"If the door to discrimination is left ajar, universities will drive a truck through it," he wrote.

As they always have.

Sounds like Bush blinked.

UPDATE: I hate to admit it, because the Linda Greenhouse story I'm about to link to has some unseemly crowing about the difference between Bush's rhetoric and the actual brief, but this could be on the mark:

True to his promise, the briefs did ask the court to declare unconstitutional the undergraduate and law school admissions programs in dispute. But it did so by means of a legal analysis that, far from insisting that any consideration of race was impermissible, did not even ask the justices to overturn the Bakke decision, the 1978 landmark ruling that by allowing race to be used as a "plus factor" ushered in a generation of affirmative action in public and private college admissions....

"In the end, this case requires this court to break no new ground" in order to hold the law school's admissions policy unconstitutional, the administration said in Grutter v. Bollinger, one of the two cases. The sentiment was echoed in the brief in the second case, Gratz v. Bollinger

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