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December 19, 2002 10:30 a.m. Those Michigan Cases The Bush administration weighs a move.

he Washington Post had a front-page story Wednesday that began, "President Bush's legal and political advisers are split over whether to take a stand on the racially charged subject of affirmative action as the Supreme Court prepares to take up a landmark case on racial preferences." The thrust of the article is that most of the administration's lawyers think the government should file a brief that opposes the University of Michigan's use of racial- and ethnic-admission preferences, but that "the issue is likely to be resolved by Bush's chief political strategist, Karl Rove, who is the architect of Bush's effort to broaden the GOP appeal to minorities."

It certainly is not surprising that the lawyers generally support a brief opposing admissions discrimination. It will not be easy for any lawyer to write a persuasive brief arguing that the University of Michigan has not violated the civil-rights laws. For a conservative lawyer, it will be impossible.

Indeed, it would be disappointing if, were the administration to file such a brief, there were not several high-level resignations among its legal officials. The administration has made a number of first-rate appointments to various civil-rights-related posts, but has done nothing as yet to undo Clinton administration policies on racial and ethnic preferences. A bad brief in the Michigan cases — the issue's Armageddon — ought to be the last straw for those appointees.

And while it has become the received wisdom among many Republican politicians that it is risky to oppose racial and ethnic preferences, it is unclear why this should be so. Preferences are widely unpopular among the vast majority of Americans, as study after study and survey after survey have shown. No politician has ever lost a race because of his opposition to preferences.

Let me give just two examples. Last year, a survey conducted by the Washington Post, Harvard University, and the Henry J. Kaiser Family Foundation — not exactly the vast right-wing conspiracy — asked: "In order to give minorities more opportunity, do you believe race or ethnicity should be a factor when deciding who is hired, promoted, or admitted to college, or that hiring, promotions, and college admissions should be based strictly on merit and qualifications other than race or ethnicity?" Now, that question is hardly phrased in a way that is likely to push respondents in the no-preference direction. Yet 92 percent of those surveyed said race/ethnicity should not be a factor, including 86 percent of African Americans (for whites, the figure was 94 percent).

How is being on the side of 92 percent of the country going to be a political liability? And does anyone think that the 5 percent who answered in favor of preferences are ever going to vote Republican, so long as they can write in a vote for Che Guevara? The other example I would give is Florida, where Governor Jeb Bush's decision to ban racial and ethnic preferences there was followed by much ugly criticism from the NAACP et al. — and his decisive reelection this year.

Over the years and in his recent political campaigns, the president has said consistently, albeit with varying degrees of precision, that he opposes racial and ethnic preferences. He will make his political base, and millions of other Americans, very angry if he reverses course now.

Whether you focus on the law, or on small-p politics, or on fundamental principles of morality, the American Creed, and what sort of nation we want to be, you come out in the same place: The administration ought to file a brief opposing the University of Michigan's use of racial and ethnic preferences.

The Post article speculates that the Lott fiasco may complicate the administration's political calculus, and make it more difficult for it to oppose racial preferences. But it is just possible that Lott's self-destruction has handed president a golden opportunity to explain precisely why he is doing the right thing.

"There is no place in 21st century America for discrimination on the basis of skin color," the president might say. "Any political leader must be clear, consistent, and credible in opposing such bias. I took the lead in my own party in condemning Senator Lott's remarks. And, for exactly that reason, my administration supports an end to the new system of racial and ethnic preferences that has, unfortunately, come to honeycomb our society. It doesn't matter whose ox is being gored: Racial and ethnic discrimination is wrong." I elaborated on this theme — that is, the speech on affirmative action that President Bush should give — last year.

One last point. It is possible that some of the president's advisors will suggest that the administration try to make everyone happy by filing a brief that cuts the baby in half. Specifically, they might support a brief that argues: (1) "diversity" is a "compelling government interest," justifying the use of racial and ethnic preferences, but (2) the particular programs at issue in Michigan are not "narrowly tailored" enough, and amount to illegal quotas.

Make no mistake about it: Such a brief would be worse than no brief at all. The administration, if it is to file a brief at all, must make clear that achieving pre-fab diversity is not a sufficiently compelling interest to justify something as repellent as discrimination based on a person's skin color or where his or her ancestors came from. The compromise brief described in the last paragraph would amount to an endorsement of the legal status quo, which is the last thing opponents of preferences want. Filing it would guarantee the wrath of conservatives and everyone else who opposes racial and ethnic admissions discrimination, without gaining the administration any friends among the civil rights establishment.

The smart thing to do is the right thing.

— Roger Clegg is general counsel of the Center for Equal Opportunity in Sterling, Virginia.