If anyone needed proof that reading news stories is often a lousy means of understanding complex issues, the affirmative action cases now in front of the US Supreme Court provide it in abundance.

The court has agreed to hear argument on April 1 in support of three white students who have complained that the University of Michigan's affirmative action policy unlawfully discriminated against them in favour of black applicants for admission.

Coverage of the issue began in earnest a few days ago, when the White House decided to become a party to the case, taking the side of the petitioners.

That was all some people needed to proclaim that President Bush had turned into some kind of slavering racist.

One columnist in the Boston Globe wrote a column in this vein: "This is the day that a lot of God's white people - Jews and Gentiles, Protestants and Catholics - are holding hands and singing in the words of their new spiritual, 'Free at last, free at last, thank God almighty, we are free at last!' . . . Lying is all Bush can do now that he has decided to make the White House the national headquarters of the NAACP - the National Association for the Advancement of Caucasian People."

Even the New York Times, a normally well-researched paper, claimed, in an editorial: "In the aftermath of the Trent Lott embarrassment, the Administration's stance will be seen as an indicator of the President's commitment to moving his party and the country beyond the segregationist past."

No Pulitzer Prizes for either of those pieces, take my word for it.

Here's what's really going on.

There has already been a Supreme Court decision that was, in essence, in favour of affirmative action - the case of University of California Regents v. Bakke in 1978. In that case, in striking down the existing affirmative action policy of that University, the Supreme Court Justices defined how race might be used as a factor in a university's admission policy. (At the end of this article, I have provided a short list of documents available on the web, including the Bakkejudgement, in case anyone might be interested in reading them).

The two current cases, Gratz v. Bollinger and Grutter v. Bollinger, argue that the University of Michigan's application of affirmative action goes further than the Supreme Court's Bakke decision permits.

In the United States system of democracy, the Supreme Court is used to define policy much more than elsewhere. A law created by the legislature can be, and often is, challenged in the courts almost before the ink has had a chance to dry.

Individuals and organisations who and which are going to be affected by a decision of the Supreme Court are entitled to file what are known as amicus curiae (friend of the court) briefs, which argue the case from one side or another. Because the United States Government is often likely to be affected by what the Supreme Court does, it is also entitled to file such briefs, and often does.

"Entitled to" may be understating it a bit. In truth, the Government has a responsibility to try to make sure the Supreme Court makes what it thinks is the right decision in cases it sees as important.

So despite the press's apparent uncertainty on the matter, where something as important to American society as affirmative action is concerned, it pretty much goes without saying that the White House will weigh in with a brief. So, too, will other individuals and organisations that will be affected by the decision. In the 1978 Bakke case, there were scores of briefs filed .so many that even counting them is a daunting task.

In this case, the White House has made no broad claims at all about affirmative action, and has certainly made no claim that it shouldn't exist. Its case is confined to the University of Michigan's affirmative action policy and whether it, specifically, conforms with Bakke. White House spokesman Ari Fleischer said last week the White House believed the University of Michigan's policy amounted to the use of a racial quota, which would go well beyond the Bakke principle by offending against the need to tailor policies as narrowly as may be in order to achieve diversity.

On its face, racial discrimination is racial discrimination, no matter whether the person discriminated against is black or white.

But two things do seem to be true. The first is that generations of segregation have created a situation in which blacks and whites occupied substantially different positions in the hierarchy of society.

The second is that maintaining an absolutely colour-blind policy in things like education and employment cannot redress that imbalance, certainly not quickly. In the workplace, for example, whites tend to occupy the more senior positions and are therefore protected from the effects of layoffs. In education, white children are lent an advantage by their family's exposure to education over time.

At some stage in the future, this imbalance will disappear. But in the meantime, the notion of using affirmative action as a balancing tool (not a cure-all, but as one tool) has some force.

Any rule that is created, then, has to be so constructed as to allow affirmative action where and for as long as it is necessary, but no longer. Tall order.

The first ingredient, perhaps, is to make sure that any rule is constantly under review. A Supreme Court case in 1995, Adarand Constructors, Inc. v. Pena, established that "any person, of whatever race, has the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest judicial scrutiny".

Judicial strict scrutiny is a two-pronged test. Use of a racial classification must serve a compelling government interest, and use must be as narrowly tailored as possible to allow the furtherance of that interest.

So the University of Michigan, if judicial strict scrutiny is accepted in this case as the correct course (and that seems almost certain to happen), is going to have to prove over again, despite the principles established in Bakke, that affirmative action serves a compelling government interest in this case. Then the University will have to prove that it could not achieve its aim if its application of affirmative action were any narrower.

Many people think that affirmative action can only take one form. That's not the case. Here are four degrees of affirmative action (minority may not be a word that covers all the bases, but it's the simplest word to use, and I'm sure you know what I mean):

1.The strongest form occurs when unqualified minority candidates are preferred over qualified candidates. This is a form of affirmative action that is explicitly forbidden in the US under federal regulations.

2. A slightly milder form occurs when qualified minority candidates are chosen over substantially better-qualified candidates.

3.A yet milder form occurs when qualified minority candidates are chosen over slightly better-qualified candidates.

4. And the mildest form occurs when minority candidates are plucked from a pool of equally-qualified candidates.

National security advisor Condoleeza Rice has said that she believes affirmative action can be used as a factor in college admissions - there are occasions, she said, when it is appropriate. In the same statement, she also said she supported the White House's position, as articulated in its Supreme Court brief, and said that "race-neutral" means were preferable, if possible, in achieving a race-neutral student body.

Secretary of State Colin Powell has taken a position that differs only very slightly from Condoleeza Rice's, in that he said he hoped the University of Michigan's policy would be allowed to stand. But both Gen. Powell and Ms Rice have said they are happy to let the Supreme Court make the decision in this particular case.

So my advice is that if you want to have a balanced view about these cases in the US, take pronouncements about President Bush's racist instincts, and about a rift in the White House over affirmative action, with the biggest grain of salt in your cellar.

Four web sources for documents follow. I have not included the Gratz brief, nor the White House amicus brief on that case, because they are both very similar to those filed in the Grutter case.

The Bakke judgement: http:// caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=438&invol=265.

The Grutter brief: http:// news. findlaw.com/wp/docs/grutter/grutterum11603brf.pdf.

The University of Michigan brief: http://www.umich.edu/%7Eurel/admissions/legal/grutter/gru-bopcert.html.

The White House brief: http://www.cir-usa.org/legal_docs/michigan_amici_US_grutter.pdf.

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