WASHINGTON – The Bush administration is between a rock and a hard place in deciding whether to take sides in a racially charged Supreme Court case that pits a group of students against a state university's affirmative action policy.
But senior administration officials told the Associated Press Monday night that the White House is likely to oppose a program at the University of Michigan's law school that counts race and minority ethnicity as "plus factors" in deciding whether to admit students
White students have sued, saying they were discriminated against because they were rejected even though they had higher test scores than minority students who won admission.
Admissions officers at the university say they have no minority quotas but they do take note of race and ethnicity to achieve a "critical mass" of diverse students.
The case is now going to the U.S. Supreme Court and President Bush has until Thursday to personally decide whether the Justice Department will support or oppose such programs or stay out of the case altogether.
"Typically, matters dealing with whether or not an amicus curiae, or a friend of the court, brief would be filed are, typically, handled in most cases by Justice Department officials. For something that has this level of importance, it has risen to the president's attention," said White House press secretary Ari Fleischer.
Indeed, the senior administration officials also told the AP, White House and Justice Department lawyers, acting on guidance from the president himself, are drafting a proposed Supreme Court brief arguing against programs that gave black and Hispanic students an edge when applying to the University of Michigan and its law school.
Bush is awaiting those briefs before deciding his course of action, the officials said, adding that all signs point toward the White House intervening in the biggest affirmative action case in a generation.
The filing deadline comes less than a month after former GOP Senate leader Trent Lott was forced to resign his leadership position after suggesting that the nation would be better off if 100-year-old retired Sen. Strom Thurmond had been elected president in 1948 on a segregationist platform.
Democrats want to use the Michigan case to compound the charges against the president and Republicans that they are less than accepting of minorities.
"The administration has chosen to remain silent, and yesterday the Republican leader in the Senate did not ask them to break that silence, or indicate a desire to break his," said Senate Minority Leader Tom Daschle, D-S.D.
In fact, appearing on Fox News Sunday, new Senate Majority Leader Bill Frist, R-Tenn., did encourage the White House to take a stand in the Michigan case.
"You know, we've been through a very difficult time in the last six weeks, difficult in the sense that issues have arisen unexpectedly. I'm glad they had arisen broadly ... even in our caucus the other day, issues surrounding race and race renewal, affirmative action legislation as it relates to race, are going to be addressed, and they'll be addressed again and again."
Two years ago, then-Gov. Bush won only 9 percent of the black vote. Though Republicans always talk about making inroads with minorities, they seldom bank on it.
But some 30 percent of Hispanics voted for Bush in 2000, and that constituency expects support from Bush in this case.
"If he chooses to oppose the policy, or to say nothing with respect to the Supreme Court, people are going to ask how much of this was words and marketing, and how much of this was going to be about action," said Cecilia Munoz, vice president of La Raza.
One veteran court watcher says he would be stunned if Bush sat on the sidelines.
"There isn't a bigger case in the last 10 or 15 years than this one, and for the Bush administration to remain silent would be odd indeed," said former Supreme Court clerk Edward Lazarus.
Experts say unless the Supreme Court is determined to outlaw affirmative action in education, which it upheld the last time it heard a case like this in 1978, it will uphold the Michigan plan, if it is found to achieve diversity and is narrowly tailored to that goal.
The case will be argued before the high court in March, but no decision is expected until July.
Fox News' James Rosen contributed to this report.