Grutter v. Bollinger and the community college.(Barbara Grutter)

Abstract

In June 2003 the United States Supreme Court resolved constitutional issues in Grutter v. Bollinger and ruled that the University of Michigan Law School could use affirmative action to diversify its student body. In this article, we present legal and philosophical arguments to explain why, in certain circumstances, community colleges can and should use affirmative action when enrolling students in selective admissions programs.

Introduction

The Supreme Court's paired decisions in Grutter v. Bollinger (2003) and Gratz v. Bollinger (2003) resolved a controversial debate concerning the use of affirmative action at selective admission institutions. The Court had previously held that affirmative action could be used in the student admissions process (Regents of the University of California v. Bakke, 1978) but recent opinions from the Circuit Courts of Appeal were inconsistent in explaining when and how the policy could be implemented (Grutter v. Bollinger, 2002; Hopwood v. Texas, 1996; Smith v. University of Wash. Law School, 2000).

In Grutter, the Court ruled that the highly competitive University of Michigan Law School could use race-based preferential affirmative action in order to attain the educational benefits flowing from a diverse student body. In Gratz, the justices held that an admissions process used by one of the selective undergraduate colleges at the University of Michigan was unconstitutional because it relied upon a numerical rating system that awarded a specific point value to some minority applicants because of their race or ethnicity. Considered in tandem, the Grutter and Gratz decisions approved the use of affirmative action for selective admission law schools and undergraduate colleges but only when used to attain well-articulated educational benefits such as the promotion of cross racial understanding and the break down of racial stereotypes. Furthermore, the Court ruled affirmative action was only permitted at these institutions when procedures assessed students in a highly individualized, holistic manner. Grutter and Gratz provided useful parameters describing when race-based affirmative action could be used by selective admission law schools and undergraduate colleges. But, the Court declined to explain when other higher education institutions could use affirmative action to secure the educational benefits flowing from a racially and ethnically diverse student body. Could non-selective public undergraduate institutions incorporate affirmative action into the admissions process for competitive academic programs? Could community colleges use affirmative action for selective admissions programs? These questions were left unaddressed by the Court.

In this article, we offer an argument to explain why community colleges committed to open access and the open door admissions policy can and should use race-based preferential affirmative action in selective admissions programs when needed to achieve the educational benefits provided by a racially and ethnically diversified student body. Our argument integrates legal principles expressed in the Supreme Court's Grutter opinion with a contemporary reading of the philosophical principles supporting the open door admissions policy. Our proposal is circumscribed, however, by two considerations. First, we acknowledge that state legal prohibitions may preclude the use of affirmative action in student admissions. Second, we accept that affirmative action cannot be philosophically justified at the community college if student body diversity is gained by ignoring the traditional commitment to serve community residents. Diversity cannot be acquired in a manner consistent with the community college mission if institutions deny admission to local students and admit students from distant communities. In those circumstances, however, where affirmative action is not precluded by these conditions, the recent Grutter decision and a contemporary understanding of the open door authorize and justify the practice when needed to diversify the student body in selective admissions programs. We lay the groundwork for our argument by examining the Court's holding in Grutter and identify the constitutional requirements for implementing affirmative action. Then, we review the philosophical principles that have traditionally supported the open door admissions policy. With these legal and philosophical premises in place, we offer an argument to support our position. We conclude with recommendations for the implementation of an admissions process using affirmative action for community college selective admissions programs. Our argument and recommendations are not focused on a specific institution or program. Instead, they address the critical legal and philosophical issues that must be addressed by any community college adopting affirmative action post Grutter. Before turning to our argument, however, we note institutional and historical considerations that make a defense of affirmative action in this setting necessary.

Affirmative Action at the Community College