Some lawyers are more equal than others in the eyes of the U.S. Supreme Court, and the "most equal" is often the solicitor general of the United States, the president's chief courtroom advocate. That is why it could be important which side the Bush administration takes -- if it takes a position at all -- in a looming landmark case about affirmative action.
The high court has agreed to hear two lawsuits generated by "diversity" policies at the University of Michigan, a state institution bound by the 14th Amendment to the U.S. Constitution. According to disappointed white applicants, the university violated the amendment's Equal Protection Clause by giving preference to minorities in admitting undergraduates and law students.
Almost a quarter of a century ago, in the celebrated Bakke case, a bare majority of the court allowed state universities to continue to use race as a "plus" factor in trying to ensure a diverse student body in the same way colleges traditionally have tried to admit students from different geographical backgrounds.
The problem is that, given an inch by the Bakke decision, some state universities have taken a mile, employing numerical goals that are a racial quota in fact if not in name. One of the issues in the Michigan cases is whether the law school engaged in a quota by deciding to enroll a "critical mass" of minority students.
The importance of the Michigan cases -- and the reason why the Bush administration's position could be influential -- lies not in the specifics of the Michigan policy but in a larger legal question: Is providing a preference, however slight, to students based on their race an unconstitutional form of racial discrimination?
If the court says yes, state universities and professional schools will find themselves in a legal straitjacket. It will be constitutional for a college admissions office to look beyond grades and test scores in order to make sure that its student body contains athletes, musicians, Southerners and the children of alumni -- but it will not be able to seek racial diversity. That strikes us as undesirable.
From its inception, affirmative action in college admissions has been controversial. In recent years, opponents have offered new arguments against racial preferences in admissions, ranging from the murkiness of the term "race" at a time of widespread intermarriage to the fact that in an increasingly multicultural country African Americans and Hispanics have been joined by other minority groups in (choose your metaphor) the melting pot or mosaic that is America.
None of that changes the fact that, by the testimony of university officials, a rigidly colorblind admissions policy would reduce the presence of black and Hispanic students on campuses for the foreseeable future.
President Bush apparently finds that prospect troubling. As governor of Texas, he responded to a court decision against a University of Texas affirmative action program by endorsing an "affirmative access" alternative under which the top 10 percent of students in every high school are guaranteed admission. Because many Texas schools have a majority of minority students, the effect was to promote racial diversity through a change in admission requirements -- which is also what "affirmative action" does.
Mr. Bush should instruct his solicitor general to tell the Supreme Court that, whatever it thinks of the University of Michigan's policies, it shouldn't slam the door on programs designed to ensure a modicum of racial diversity at state universities.
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