Background Briefing by a Senior Adm. Official on the Michigan Affirmative Action Case

January 17, 2003
THE WHITE HOUSE
Office of the Press Secretary

BACKGROUND BRIEFING BY A SENIOR ADMINISTRATION OFFICIAL ON THE MICHIGAN AFFIRMATIVE ACTION CASE

James S. Brady Press Briefing Room

5:15 P.M. EST

SENIOR ADMINISTRATION OFFICIAL: Good afternoon. Let me take a few minutes
and just give you all a little background on the specifics of the programs
that are at issue in the Michigan cases, and then take questions.

There are two different admissions programs that are at issue in the
lawsuit that the Supreme Court is considering this term. The first is the
undergraduate's program. The undergraduate school bases admissions
decisions on a 150-point scale. And the scale basically consists of up to 80 points
for the highest grade point average that you can have, 12 points for the
perfect SAT score, 10 points for the quality of the high school you go to,
and, as an example, 3 points if you have the outstanding essay.

Twenty points are given automatically if you're a member of what's called
a under represented racial or ethic minority, which, for the purpose of the
Michigan case means African American, Hispanic -- actually some Hispanic;
not if you're from Spain, but if you're an American Hispanic -- or if you
are a Native American. Twenty points is generally about 20 percent of what
is needed to get into the school. Generally, 100 points gets you into the
school.

So, to give you the context for this, if you have a perfect SAT score,
that scores a maximum of 12 points. Irrespective of any other factor, if you
are one of these minority groups, you automatically get 20 points. The result,
of course, is that a substantial number of minority students with grades
and averages substantially lower than a lot of non-minority students are
getting into this program. And of course, the only difference here, the basis for
the classification, is a racial classification.

The law school program operates a little bit differently. In the law
school the admissions board has established what they call a target of a critical
mass of minority students, and the target is basically between 10 and 12
percent. And the scores for which students are admitted again is really
adjusted in order to meet that strict numerical target, strict percentage.
Both of these programs are de facto quota programs.

The brief that the United States will be filing tomorrow addresses the
narrow issue that is before the Court, which is are these programs,
admissions programs by the University of Michigan, constitutional or not?
And the brief that the United States will file tomorrow, as the President
said today, are not constitutional. They are not narrowly tailored; they
do not consider a race-neutral alternative first. The issue before the Court
again is whether the Michigan programs are constitutional. And the
position of the administration is that they are not.

What the President has decided, in a very principled and also very
realistic decision, is to outline a vision for America, a vision to increase racial
diversity in America, but to do so in a way that encourages outreach,
aggressive efforts, really affirmative access steps that do not fall back,
really, on quotas, which may be an easier way to attain some strict
measure of racial proportionality, but ultimately serve to divide us. The
President strongly promotes diversity and made it very clear in his statement today
that schools have to take serious, aggressive and honest efforts to
promote diversity.

Q To that one very pointed question, will the brief address whether it is
unlawful to consider race as a factor in college admissions?

SENIOR ADMINISTRATION OFFICIAL: The brief will address very specifically
that the University of Michigan programs are unconstitutional because they
make race the factor --

Q "The" factor? All right, but I'm asking -- we've been through this whole
thing. I'm asking --

SENIOR ADMINISTRATION OFFICIAL: -- the factor, make race the factor in
admission, and do not even consider race-neutral alternatives.

Q So their quotas are basically in violation of Bakke, right? Is that the
position?

SENIOR ADMINISTRATION OFFICIAL: The brief is, again, addressing -- the
case before the Court is not the Bakke case. The case before the Court is the
law school and the University case in Michigan. And let me be clear. What the
brief will say is we don't need to address the issue of what the outer
bounds of the Constitution may or may not permit, because what we know for
sure is that under any formulation, any reasonable understanding of the
equal protection clause, the Michigan programs are in violation.

Q And let me just ask, does the President believe that it is unlawful to
consider race as "a" factor when it comes to college admissions?

SENIOR ADMINISTRATION OFFICIAL: I think the President's view is that in
any number of areas in our society we are clearly not a color-blind society
yet. The ideal that we want to strive for, ultimately, is to be color blind,
but we're not there yet. When we have --

Q-- answer the question.

SENIOR ADMINISTRATION OFFICIAL: I'm answering the question. The No Child
Left Behind Act establishes a mechanism for assessing how students are
doing. And we disaggregate data by race, we disaggregate data by
ethnicity. So, obviously, race is a factor that we take into account throughout our
society in different ways. And, indeed, what the President said very
clearly is, he said university officials shouldn't just look to take the easy way
out, they need to take hard steps -- to go out and recruit and increase
the pool of applicants; make their schools more attractive to minority
students; and come up with lawful and constitutional ways to increase the number of
minority students. He strongly believes that we have made a great deal of
progress, but we haven't made enough progress.

Q On that, just to button this down -- and I understand it's very hard to
do, by the way, without a brief. These are legal questions, and with all
respect, to rely on this and the President's kind of PR statement is very,
very difficult, so let me see if I can get this right.

The administration, the U.S. government is going to say that Michigan's
admissions policies are unconstitutional because they are not narrowly
tailored sufficiently and because they did not consider a race-neutral
alternative? The administration's brief will not take a position on the
question of whether racial diversity in the classroom is a justification
for awarding any preference in admissions?

SENIOR ADMINISTRATION OFFICIAL: The administration's brief, as the
President himself said today, we strongly support broad educational diversity
including racial diversity. That means we want to have students who are
white, who are black, who are Hispanic, who are Asian, who are rich, who
are
poor, who come from rural and urban areas, who are handicapped, who are
physically able. We want genuine diversity. And a component of genuine
diversity is racial diversity.

And, unfortunately, far too many people in America today still make race a
factor in decisions. What the President has said is we need to try, if at
all possible, to promote the broadest amount of diversity without taking
race into account. And what he did was he gave some suggestions today and
he cited the experience in Texas when he was governor, and the 5th Circuit
Court of Appeals struck down a race-based admissions program by the
University of Texas and said it was unconstitutional. What they
established in Texas was the top 10 percent plan, where the top 10 percent of students
from every high school automatically got into the University of Texas
system.

Well, that means that if you're in a high school that's predominantly
black, top 10 percent automatically get in. And what's interesting is that what
they have found after a few years, and they've evaluated it, is that the
students who are getting in through this top 10 percent are performing as
well from the minority -- the predominantly minority school districts as
they are from the predominantly white school districts.

He also cited the example in Florida and in California. What he said is,
we know that there are ways, things that people didn't know about 10, 15
years ago because they hadn't been tried. But because California in responding
to Proposition 209, and Florida and Texas are now using these types of
innovative programs, we know that we can achieve diversity without racial
quotas.

Q But the reality here --

Q If I could ask a question on that, the diversity -- after these changes
were made in Texas and California, the percentage of minority students
actually declined. Am I to understand that the President in this brief
does not put forward an alternative, if you will, to the University of Michigan
program?

SENIOR ADMINISTRATION OFFICIAL: The percentages, actually, in Texas and in
Florida right now have either reached the levels that they were prior to
the institution -- or prior to the termination of the race-based policies; and
in some instances, with respect to some minority groups or sub-groups in
the population, have slightly surpassed the level pre-Hopwood. In California,
they're getting close; they're approaching the levels of Prop 209.

So what these programs demonstrate is that if you come up with innovative
solutions, if you reach out in a serious way to all parts of the
community, if you look at different geographic areas, you look at different
socioeconomic factors, you really start to look at people's potential, you
look at their life experiences, that you can achieve diversity.

The President wants educators, wants school officials to move in this
direction, and he's not satisfied that they've moved far enough or fast
enough. But he wants to do it without racial quotas.

Q Is the President saying the Ann Arbor case -- you can do it, but the way
the University of Michigan is doing it is not the right way, and he's not
putting forward an alternative; am I right?

SENIOR ADMINISTRATION OFFICIAL: The goal of broad educational diversity,
which includes racial diversity, is a laudable goal, it's an important
goal, and we need to strive to attain it. It's part --

Q But not the way that Ann Arbor is doing it?

SENIOR ADMINISTRATION OFFICIAL: -- it's part of bringing the promise of
America to everyone. But the Michigan schools, the programs at the
Michigan schools violate the Constitution. They go too far; they're plainly
unconstitutional.

Q There are two questions before the Supreme Court. One is specifically on
the narrow tailoring. But the other question, the question that the
Justices -- had to do with whether Bakke is still good law, whether racial
diversity can still be used. What does the President say on that?

SENIOR ADMINISTRATION OFFICIAL: As I understand it, the question before
the Court and the question that we are answering in the brief tomorrow is, are
these programs constitutional. There are a lot of ways --

Q So you're not even addressing the first question? That's what we're all
asking -- are you going to --

SENIOR ADMINISTRATION OFFICIAL: The Justice Department is going to file a
narrowly tailored brief that says to the Court, these plans are
unconstitutional, they violate the equal protection clause. We need not
address in this case the outer limits of what the Constitution does or
does not permit, and under what circumstances. What we're focusing on here is
the Michigan program in the brief, and the Michigan program --

Q Just to clarify, nothing on Bakke?

Q So you're punting on Bakke?

SENIOR ADMINISTRATION OFFICIAL: I don't know -- I wouldn't characterize
this as a punt. I would say that what we are doing -- what I'd say we are doing
is articulating a very principled and realistic position for how to
promote diversity in America, encourage opportunity without violating the
Constitution, without setting up racial quotas.

Q And you are not doing what the white students are doing in the case,
which is asking the Supreme Court to declare that diversity is a non-compelling
interest, as Justice Powell said in Bakke? You're not taking that
position?

SENIOR ADMINISTRATION OFFICIAL: We are going to be addressing the narrow
issue in this case that the Michigan program is unconstitutional. Again,
as I said, we are not going to address the outer limits of what may or may
not be available or possible.

The issue of race in America, the issue of the improvement of race
relations in America is an evolving matter. And university admissions policies are
an evolving matter. And it is not for us to define the outer boundaries of
what an admissions officer may or may not be able to do under a set of
hypothetical circumstances. It may very well be that a school might try to
explore race-neutral means, but may, in fact, be discriminating against
students. And obviously, that would have to be addressed and remedied.
What we are talking about in this brief is simply this program flunks the test.

Q You portrayed this as a very narrowly tailored brief aimed at answering
one simple question, does this particular program at the University of
Michigan pass constitutional muster. Applying the principles that you've
applied to this case, are there other affirmative action programs at other
major universities that would pass constitutional muster?

SENIOR ADMINISTRATION OFFICIAL: I have not looked at other programs at
other universities. We've been focused on what to do in the matter at hand,
which is the cases involving the University of Michigan program.

Q One follow-up, please, if I may. If the Court were to accept your
argument in total, as far as you go, but no farther, what would be the impact on
other affirmative action programs?

SENIOR ADMINISTRATION OFFICIAL: I think you'd have to ask the Justices
that or ask for their decision.

Q You said that the President supports programs in Texas and California
and Florida because they promote the broadest diversity without taking race
into account. But there's a difference between quotas and race being a factor.
And I guess I don't want -- I guess I'm asking, by implication of what
you're saying about these other programs which don't take race into
account at all, should race be "a" factor, but not "the" factor?

SENIOR ADMINISTRATION OFFICIAL: As I said, the objective is to promote
diversity through constitutional means. Obviously, when you try to reach
out to minority communities, when you recruit -- when you focus economic
resources on underprivileged and low-performing schools, many of which,
unfortunately, today, are disproportionately minority communities,
obviously you are not blind to the fact of race in America.

The President recognizes that we are not a color-blind society, though
that is the goal to which we should try to reach. What the President does
believe is that there are ways that we can achieve diversity through race
neutrality and that's what we should strive for.

Q Understanding that you all specifically chose to go with a narrowly
tailored brief, can you explain why you chose that option? Because you
could have gone bigger. Why did you decide to go the route of a more targeted
brief?

SENIOR ADMINISTRATION OFFICIAL: The President made the decision that the
issue before the Court was the Michigan cases. He evaluated what was going
on in the Michigan cases and it was clear to him that these cases, these
programs, in effect, operated at de facto quotas and were plainly
discriminatory. At the same time, he wanted to make clear, as he did in
his statement, that trying to promote the broadest possible diversity,
including racial diversity, is an important goal. That's what he said today in his
statement. The brief, as I said, he has decided should be focused on the
very specific issue before the Court.

Q We often hear from this podium that the White House won't tell states
how to run their affairs. This would seem to be a pretty big bigfoot on
states' rights. Why isn't it?

SENIOR ADMINISTRATION OFFICIAL: Well, the 14th Amendment of the
Constitution, the equal protection clause, is applicable to the states.
And the issue before the Supreme Court is whether a particular program
violates the federal Constitution. So clearly, discrimination anywhere by a state
organ is covered by the federal Constitution and there's a strong federal
interest.

Q I have one follow-up question, if I could follow up on Wendell's
question too. Will the administration in its brief or in any other forum offer a
road map for how to get to diversity it says it seeks?

SENIOR ADMINISTRATION OFFICIAL: Well, the President today talked about a
few of the programs around the country that are making efforts. And obviously,
the Department of Energy will be ready to work with states and university
officials who are looking for guidance in terms of how to fashion programs
that don't violate the Constitution, which promote the greatest amount of
outreach to the greatest number of students of all backgrounds in a
constitutional way.

Q Would you have us understand that this was an easy call for the
President to make, or did he anguish over it?

SENIOR ADMINISTRATION OFFICIAL: I think the President thought and went
through a deliberative process. And it was a process that for some of us
here in the White House began really early last summer when the case
really came to national attention and folks in my office and in the Counsel's
Office started looking at the issue. The President became substantially
involved in this as we got into the winter and throughout the latter part
of December and really right up until today.

We had a series of discussions. The President consulted with some of his
close advisors and finally today made a decision that the right thing, the
principled thing to do and the realistic thing to do for the country and
for the welfare of the most number of people in this country was to file a
brief and to give a statement making clear that racial diversity and broad
educational diversity is an important goal, something we should be
striving for, but that the Michigan program was not the right way to proceed.

Q Two things. First, did I understand you when you were saying this is a
narrowly tailored brief, can you say whether it addresses or doesn't
address -- since we haven't seen it -- the Bakke holding that race may be
"a" factor? I thought you didn't --

SENIOR ADMINISTRATION OFFICIAL: I don't expect the brief to address that
issue. What the brief is going to say is promoting diversity is a very
important goal, and the way to promote diversity is through race-neutral
means and, p.s., it can be done, it is being done. And that's what people
and states and admissions offices should do. They shouldn't fall back on
quotas simply because quotas are an easy way to achieve racial
proportionality.

Q In terms of what you're able to say about the brief, it will not say
that Bakke is not good law or should be overturned; it will not address this
issue?

SENIOR ADMINISTRATION OFFICIAL: It will not address that issue. That issue
is not -- does not need to be addressed in order to strike down this
program.

Q This morning, from that podium, Mr. Fleischer -- who I'm sorry just
left -- got into a thing here with some reporters, I only read the
transcript -- about "a" factor or "the" factor. And at the end he seemed
to say it will be clear from his remarks. It's not clear now whether race may
be "a" factor. Certainly he made it clear it cannot be "the" factor. But
he suggested we would be enlightened this afternoon.

SENIOR ADMINISTRATION OFFICIAL: Well, first of all, I can't believe Ari
would get into a "thing" with a reporter. (Laughter.) But I'll try to --

Q-- read it. (Laughter.)

SENIOR ADMINISTRATION OFFICIAL: I'll try to clarify --

Q Did the --

SENIOR ADMINISTRATION OFFICIAL: Let me just try to clarify and then I'll
take your question.

What the government is going to argue in the brief is that any time there
is a consideration of race, the Court has said you have to look to see if
there are race-neutral alternatives. There are race-neutral alternatives here;
we know that. The Michigan program didn't even try to address the goal of
racial diversity, the goal of broad diversity through race-neutral means.
The Michigan program flunks. We do need to address the outer limits of
what the Constitution may or may not permit.

Q So is it simply that with a point system that you feel that too many
points were given for race? Because if it still can be "a" factor, then,
presumably, on like a point system you could still have a point.

SENIOR ADMINISTRATION OFFICIAL: There are two different programs at issue.
One of them is the program that incorporates the point system. The other
is a program that simply sets this kind of critical mass target. And what the
brief is going to say is, you can't make your decisions based on race if
you can achieve or if you -- let me strike that. You should not be making
decisions based on race without first trying race-neutral alternatives.

We know that there are race-neutral alternatives here. We know that, in
fact, they can succeed. This program is unconstitutional.

Q Both law school and under grad?

SENIOR ADMINISTRATION OFFICIAL: To both the law school -- both failed.
Both failed.

Q You've stressed that the 14th Amendment is the basis of the legal
argument here. Can you tell us, as the President of the United States, as a father
of college-aged students, what was it personally about this case that the
President found most troublesome?

SENIOR ADMINISTRATION OFFICIAL: I think the President -- I don't know that
the President found it troublesome. I think the President found this to be
a very compelling issue and one that he spent a great deal of time thinking
about, and trying to decide what was the right answer under the
Constitution and what was the right answer for the American people -- and for the most
number of American people -- so that we can move forward into an era where
there really is the greatest amount of opportunity for the greatest number
of Americans.

Obviously, the President has his own personal experiences from his own
education and from the education of his family to reflect on. But he also
consulted with a number of his advisors. And this is an important
decision. It's an important issue because it reflects on one of the most important
issues of our day -- how we deal with race relations. And the President
wants to make clear, and made clear in his statement, that promoting raw
diversity, making sure that the promise of America is available to as many
people from as many backgrounds as we can is a paramount goal, and one
that we pursue without violating the equal protection clause, without
discriminating either for or against people solely because of their skin
color.

Q Can I follow? You said that the President consulted a broad range of
people. Can you talk specifically about Karl Rove's role?

SENIOR ADMINISTRATION OFFICIAL: We had a number of discussions with the
President, as I said, some more formal, some much more informal, over the
last several weeks. And there were discussions in which the Chief of Staff
Andy Card participated and I participated and Judge Gonzales participated,
and Condi Rice and Karl Rove participated, as well.

Karl is the senior advisor to the President and had a role in these
discussions. It was not a greater or lesser role than anyone else. They
were, by and large, broad, free-ranging discussions, good, healthy
discussions about all the entire range of issues, consequences. And
ultimately, the President was focused, as he always is, on, number one,
what is the principled approach; what is the right answer under the
Constitution in this instance -- because it's a legal issue. And, number two, what is
the right answer for the most number of Americans, and what is the right
answer to fulfill the vision that he has for America, which is greater
opportunity for everyone.

Q Can I ask you about Ted Olsen's role, please -- Ted Olsen's role, how he
was involved, and whether he will be signing the brief?

SENIOR ADMINISTRATION OFFICIAL: Ted Olsen participated in some discussions
that we had -- that I had with him and with Judge Gonzales back in late
December. And since that time, we have continued to have some consultation
with the Solicitor General and his office, And the brief will be filed --
the brief will be filed tomorrow.

Q Will he sign it, though?

Q What did Condi argue and why was she there?

SENIOR ADMINISTRATION OFFICIAL: Condi is one of the President's senior
advisors, and on an issue of substantial import, the President relies on
any of his advisors. And I don't want to get into what any one member of the
staff in particular advised. But I can tell you that there was consensus
among his staff, consensus among his --

Q She was there not as the National Security Advisor?

SENIOR ADMINISTRATION OFFICIAL: She was there as one of the President's
senior advisors. And she's also a former -- she was there in her capacity
as a senior advisor to the President. She brings, as part of her experience,
obviously, the fact that she was a former provost of a major university in
America, and obviously she had a great deal to offer to these discussions.
But the decision that the President made and his announcement today was
shared -- there was a broad, really uniform consensus among his senior
advisors as to the direction that we're going.

Q Could I please ask you to follow up on the advisor question? Did the
President consult anybody from outside the White House? And was the
political dimensions discussed in any meetings that you are aware of?

SENIOR ADMINISTRATION OFFICIAL: In all of the -- I couldn't tell you
exactly how many discussions I had with the President on this issue, but we all
here have been dealing with this issue for several weeks and this was always a
question from the President's perspective and in the discussions we have
on how do we improve education in America, how do we promote the greatest
amount of opportunities for the most Americans.

This was not an issue on which politics intruded because, frankly, I think
it's probably fair to say that there may be people from the left and
people from the right who may criticize us. The President made a principled
decision and he made a realistic decision for America in terms of what he,
in his heart, believes is the right approach on this issue.

Q Any outsiders? Did the President consult any outsiders?

SENIOR ADMINISTRATION OFFICIAL: I'm not aware of consultations with
outsiders.

Q On the race neutral, you're saying that universities have to try the
race-neutral ways first, before they even look at -- what happens after --
for example, in Texas, they still haven't reached pre-Hopwood levels,
minorities. At what point do you say, this is not working, we can go to
another system?

SENIOR ADMINISTRATION OFFICIAL: Actually, in Texas, I think they have
reached comparable levels. Some of the minority groups have actually
exceeded the pre-Hopwood level. Some of the minority groups are just about
the same. I think once you start looking at statistics you could be a
tenth of a percent up or a tenth of a percent down.

But the fact is, the obligation is on the schools to come up with
approaches -- approaches like the top 10 percent or the top 20 percent in
Florida, or the top 5 percent in California, but also a statement, a
personal statement that people can make about whether they've overcome any
hardship. Schools have the obligation to do the hard work. We're not
establishing for schools the outer bounds of the admissions process, any
more than we're telling the Supreme Court what the outer bounds of the
constitutional process are. What the President is doing is giving a little
bit of a road map and a vision for reaching greater diversity through
constitutional means. And it's going to take hard work by these schools.

Q The way you're setting it up, it seems like there is always going to be
a race-neutral alternative, because there's obviously one out there. So
aren't you really saying that race should never be a factor?

SENIOR ADMINISTRATION OFFICIAL: I can't speculate about hypothetical
situations. I don't know what programs might exist. Obviously, schools
have an obligation to try to promote as much diversity as they can. And they
have an obligation to try to do it through race-neutral means.

Q Is it possible in theory that race could be "a" factor?

SENIOR ADMINISTRATION OFFICIAL: Look, as I said, we know that in many
respects, in many attributes of our society, and even within the
government, race is taken into account. As I said, race is taken into account when
we -- race is taken into account when we take a look at desegregated data from
different components in the public school system. The key here is to
promote broad opportunities for as many people as we can.

Q Do you know when we'll get paper on this tomorrow? Do you have a --

MR. MCCLELLAN: The brief has to be filed first.

SENIOR ADMINISTRATION OFFICIAL: It will be filed at the Supreme Court
before the end of the business day, and we'll make copies available.

Q Is Ted Olsen actually going to sign it?

Q-- could you check?

SENIOR ADMINISTRATION OFFICIAL: I haven't checked lately.

END5:47 P.M. EST