2/22/02

WASHINGTON (AP) --The Bush administration will probably go before the Supreme Court to explain its stance in a politically and racially charged affirmative action case, a senior official said Monday.

The administration is expected to ask the high court this month for permission to participate in the April 1 oral arguments over race-conscious admissions policies at the University of Michigan and its law school, the official said on condition of anonymity.

In legal papers filed with the court last month, the administration argued that the Michigan policies were unconstitutional but skirted the larger question of whether race could ever be a factor in public university admissions or other government decisions.

Many conservatives, including senior members of President Bush's administration, wanted the White House to take a more categorical line against the use of racial preferences. That position, however, would probably alienate Hispanic and black voters the Republican Party wants to attract.

The administration was not a party to the case and did not have to take any position, although it would have been unusual for the White House to remain on the sidelines of such a major issue involving government policies or spending.

The administration's friend of the court brief praised the goal of racial diversity on campus but pointed to race-neutral ways to achieve it, such as policies in Texas and other states that guarantee college admission to top students from every public high school.

The oral argument could place a government lawyer on the hot seat. The court's liberal-leaning wing will probably ask tough questions about whether plans like Texas' can work in the long run, and how to achieve diversity in graduate schools, lawyers said. Court conservatives may tweak the administration for shying away from the toughest question the case presents.

Having traced a cautious path in its friend of the court filing, the administration would take little political heat if it stayed out of the oral arguments, some lawyers said.

"Why raise your visibility on this? This significantly ups the political ante," said Emory University law professor David Garrow.

Other lawyers said Supreme Court custom dictates that the government could not skip the courtroom phase of the case.

"It is normal for them to ask and I'd be quite surprised if they didn't," said University of Washington law professor Eric Schnapper.

The court is expected to grant the government's request, and allot part of the two-hour argument to a Justice Department lawyer. The time will come out of the share allotted to lawyers for white students who claim they were wrongly denied admission because of their race.

The cases are Grutter v. Bollinger, No. 02-241 and Gratz v. Bollinger, No. 02-516.