How the Solicitor General's Brief in the Michigan Affirmative Action Cases Fails to Fulfill His Office's Proper Role

By EDWARD LAZARUS

Thursday, Feb. 06, 2003

As was widely reported, an intense debate occurred between the White House and the Justice Department over what stance the Administration should take in the University of Michigan affirmative action cases currently pending at the Supreme Court. In the end, the White House's position - an attempted middle position that sough to attack the Michigan programs, but not all forms of affirmative action - won out.

Accordingly, the amicus brief Solicitor General ("SG") Theodore Olson filed on behalf of the United States reflected that middle position. Unfortunately, that position is a difficult one to support. And the government's brief, partly as a result, is lacking in serious analysis and full of analytical holes. Indeed, the brief is so deeply flawed that it calls into question the Administration's commitment to the best traditions of the SG's Office and the special relationship it historically has enjoyed with the Supreme Court.

Other commentators, including Vikram Amar in a recent set of columns for this site, have pointed out some of the substantive problems with the government's submission to the Court. And, in this column, I will cover some of this ground as well. But these flaws must also be placed in a larger context, for they raise a concern that transcends these particular cases, momentous though they are.

The White House/Justice Department Rift and How It Was Settled

To understand the problems with the brief, it's necessary first to understand the White House/Justice Department rift that gave rise to it. As might have been expected, the White House staff did not want to alienate minority voters by appearing overly hostile to affirmative action. Accordingly, they pressed for a brief that would oppose the University of Michigan programs specifically, but would finesse a larger and more politically dangerous issue: Can public universities ever use race-based preferences in admissions to advance the goal of diversity on campus?

On the other side, the legal conservatives in the Solicitor General's office wanted to put the Administration on record as categorically opposed to using any race-based preference in furtherance of the goal of diversity. For a generation, many conservatives - including Robert Bork, Antonin Scalia, and even the current SG, Theodore Olson, himself - have engaged in a full-scale assault on the constitutionality of affirmative action. For this crowd, the Michigan cases presented a perfect opportunity to showcase their "colorblind" view of the Constitution, and dramatically advance their anti-affirmative action agenda.

Much to Olson's dismay, the White House staffers carried the day. In public speeches, President Bush offered chest-thumping rhetoric decrying the use of racial preferences. But Condoleeza Rice and Colin Powell offered a different story: The President, they made clear, opposed Michigan's program, but not all conceivable affirmation action plans. Through these dual messages, the Administration tried to placate conservatives and reassure voters at the same time.

In court, the government's brief also tries to walk a fine line - presenting a relatively narrow argument. It assails the University of Michigan's admissions policies as unconstitutional. But it does not do so on the ground that the Constitution categorically bars public universities from using racial preferences. Nor does it do so based on the claim that diversity is not a compelling interest for a public university to further. Instead, it does so because, according to the brief, the University of Michigan ignored equally or more effective race-neutral alternatives for achieving its stated goal of student body diversity.

This approach is fraught with problems, however - so seriously fraught, indeed, that it imperils the Solicitor's General's fealty to his traditional rule. Too many cooks spoiled this broth utterly.

Why the Brief Is Seriously Flawed: Dodging the Diversity Issue

First, consider the Administration's decision not to answer the question of whether diversity in higher education qualifies as a "compelling governmental interest."

If it does not, then under longstanding Supreme Court precedent, no affirmative action plan can ever succeed. Under the "strict scrutiny" standard, when the government uses race-based distinctions, it must do so in a way that is "narrowly tailored" to advance a "compelling governmental interest." So question whether promoting diversity constitutes such an interest is a crucial one.

The SG's brief dodges this question entirely - and never even explains why it is doing so. Worse, it flirts with the question without ever confronting it. The brief, ironically, is full of rhetoric extolling the virtues of diversity while using every adjective in the book other than the word "compelling." Like the Administration itself, the brief thus tries to have its cake (presenting a diversity-positive GOP that African-American and Latino voters can endorse) while eating it too (avoiding endorsing diversity and enraging the GOP right wing).

The SG's dodge is only made more awkward by the fact that this is a question that desperately needs addressing now. The question of whether diversity in higher education qualifies as a compelling state interest has been hanging fire for 25 years.

The arguments have been thoroughly aired and the federal courts of appeals, like the body politic generally, are fiercely divided on the issue. If the Court ducks the question in the University of Michigan cases, this controversy will only continue to fester. Now, if the Court resolves the issue, it will have to do so without the SG's input, and that's a shame.

How the SG Botches the One Argument The Brief Has the Courage To Make

Unwilling to tackle the "compelling government interest" part of the strict scrutiny analysis, the SG's brief instead focuses almost exclusively on "narrow tailoring."

Specifically, it contends that Michigan's affirmative action programs are unconstitutional quota systems - an argument my fellow columnist Vikram Amar demolished in his last column. It also argues that the plans fail the "narrow tailoring test" because, the SG claims, there exist "ample race-neutral alternatives" to achieve the goal of diversity.

In particular, the SG points to the "percentage" plans that other states (California, Florida, and Texas) have adopted to maintain diversity in state colleges. Although they vary in detail, the percentage plans take the top grade earners at each high school in a given state (in Texas, it's the top 10% by grades) and guarantee each of these students a spot in a state university. Only GPA matters: SAT scores, and any other traditional admissions criteria do not. Nor is race taken into account.

According to the SG's brief, these plans have effectively achieved diversity on campus while avoiding racial classifications entirely. But that argument is extremely hard to sustain, for several reasons.

The Problems with the Percentage Plan Alternative

First, there is a fairly well-developed body of literature suggesting that while the plans may ensure diversity within a state system as a whole, they do not achieve diversity at the flagship schools within the state systems.

Second, the percentage plans lead to the perverse result of admitting less qualified minority candidates at the expense of more qualified ones. Consider two minority students: One is within the top 10% of a very bad high school, whose SATs and other criteria are poor. The other is within the top 20%, but not the top 10%, of an excellent high school, with great SATs and other criteria. Under affirmative action, the latter will be accepted. Under a percentage plan, the former will be. And that's not just a fairness problem, but a diversity problem: the underqualified former student is more likely to underperform, or even drop out.

Third, because of the wide disparity in quality among high schools, percentage plans tend to be arbitrary. Going to a school in one town gets a student in; going to a school in the neighboring town will get the same student rejected. It's not fair, and students know that. And it puts minority parents to the unfair choice of sending their kids to a good high school, or to a good college, but not to both.

Fourth, the percentage plans present their own constitutional problems. A number of Supreme Court precedents make clear that facially race-neutral laws adopted for discriminatory purposes violate the equal protection clause. And arguably, the percentage plans are just that: To get more minority students, the state "cream skims" from minority-heavy schools.

The state hasn't suddenly decided GPA is all that matters about a student; it's decided that using GPA alone will be a supposedly neutral way to increase diversity. Using GPA is a subterfuge for its real purposes. Indeed, it is expressly touted as such: Even the President points to percentage plans as a way to avoid affirmative action, not as valuable in themselves.

That kind of logic - shooting for a neutral standard that leads to a predictable change in the racial composition of an institution - has been shot down by the Court before. Take, for example, the gerrymandering cases. Drawing geographic boundaries for a congressional district creates no overt racial classification. But if a state legislature draws such a boundary for the primary purpose of assuring the election of a minority candidate, the legislature has violated the equal protection rights of the non-minority in that district.

Here, the issue is campus gerrymandering. If a state adopts a facially race-neutral procedure with the specific intent of ensuring the admission to a limited class of a higher number of minorities, why isn't that also unconstitutional?

These four arguments are very strong ones, as I have suggested. Yet the SG has not effectively addressed any of them. As a result, the brief is not only weak, but arguably it is also, more than this, a betrayal of the SG's basic role in our system.

The Solicitor General's Proper Role, and How the Brief Betrays It

The Administration had any number of nuanced arguments it might have leveled at the University of Michigan. Rather than inform the Court in a forthright and careful way, it issued a press release masquerading as a brief. By anyone's standard, that is a terrible disappointment. The Court and the country have the right to expect more.

Thinking about the Solicitor General's office falls more or less into two camps. But under either camp's standard, the SG's brief is a serious let-down.

The first camp adheres to a vision of the SG as the so-called "Tenth Justice," an official more deeply committed to the long run integrity of law than to the partisan views of any particular administration. By this theory, the SG, though appointed and removable by the President, should consider the Solicitor General's office as working largely above the plane of politics as the steward of the nation's legal and constitutional traditions.

On this theory, probably the most serious problem with SG Olson's affirmative action brief was its failure to consider the diversity interest issue - an issue with nationwide and long-term impact. But this theory would also suggest the SG should have taken seriously the objections to percentage plans: They, too, will have nationwide, longterm importance should the Court strike down Michigan's programs, for which they are the logical fallback.

The other camp considers the SG to be a less saintly and more political animal. This view, one to which I generally subscribe, emphasizes that the SG is a political appointee of the President, subject to his authority and direction. In that role, the SG's immediate responsibility is, in large measure, to shape and advocate the legal theories and philosophies of the President he or she serves. Presidents are elected in part because of the Constitutional vision they espouse (and often express in many views, including through their vetos and their Supreme Court nominees). To a significant degree, the SG is properly an agent of that vision.

On this second theory of the SG's role, the brief's main problem is not that it failed to look at the long term, and the future of affirmative action. Its main problem, instead, is that it failed to provide a legal - as opposed to a rhetorical, political - theory to back up the President's views. The President's views may be as rhetorical and political as he chooses (though he, too, has a duty to uphold the Constitution and took an oath to do so).

The SG's Office is supposed to provide legal grounding for those views. SG Olson's brief in the Michigan case does not. Instead, it avoids every major legal issue possible to avoid, while at the same time making an unconvincing argument that the real issue is one that has already been decided: Quota versus plus system. But if that were the real issue, there would be no need for the Court to take the case.

Importantly, there is one area of common ground between these two schools of thought - besides that each would have its own serious criticisms of Olson's approach. It is this: Both agree that the SG owes to the Supreme Court a special duty of candor and rigor.

Perhaps this duty arises simply because of the historically close relationship between the SG and the Court, and the reliance the justices have come to place on the integrity of the SG's submissions. Perhaps representing the United States before the Court inherently carries with it special responsibilities. Or perhaps, because the SG argues over and over again before the Court, a reputation for scrupulously honest and careful argument is simply pragmatic. Whatever the reason, dissent on this point is scarce.

In addition, both schools of thought agree the SG's duty to produce scrupulous briefs is arguably at its highest when the United States is interceding in a case as an amicus curiae (friend of the court). The purpose of an amicus brief is not to win the case; after all, the federal government is not itself a party. It is to provide the Court with the government's insight and analysis - a role which only heightens the expectation that the SG will deliver an honest, thoughtful, and comprehensive analysis.

In this case, that is exactly what the SG's Office failed to do. The SG disserves the President if it merely parrots his speeches - and disserves the Court and the public too.


Edward Lazarus writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books - most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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