Grutter v. Bollinger and the community college.

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

Because community colleges are committed to the open door, some may assume affirmative action is not needed in the student admissions process. This line of thinking holds that because community colleges use an open door admissions policy, no student is denied admission. Accordingly, one might contend that campus leaders need not be concerned with preferential affirmative action in the student admissions process. It is tree that most degree seeking community college students enroll in nonselective Associate in Applied Science, Associate in Arts, and Associate in Science programs (Cohen & Brawer, 2003). But, in fact, community colleges commonly offer instructional programs, such as Associate Degree Nursing, that use merit-based or selective admissions criteria such as high school GPA and standardized admissions tests (Bissett, 1995). Furthermore, the number of selective admissions programs is likely to increase. Political pressures are leading some community colleges to offer baccalaureate programs in fields that typically use a selective admissions process. Miami Dade College, one of the nation's leading community colleges, recently established its baccalaureate teacher education program to respond to the growing need for teachers in the community (Evelyn, 2003). When community colleges offer selective admission instructional programs and the diversity of the program's student body does not reflect the community, the affirmative action issue arises, even if unacknowledged.

Just as some may initially doubt the relevancy of affirmative action, others may discount the risks associated with its implementation. Grutter might be perceived by some as the conclusion to a contentious debate and clear authority to adopt affirmative action policies in all sectors of public higher education. We decline to be so optimistic. If American jurisprudence tells us anything, it confirms that legal authority approving racial inclusiveness in public and higher education is frequently impeded, challenged, and delayed (e.g., Adams v. Richardson, 1973; Brown v. Board of Education, 1954; Hopwood v. State of Texas, 1996; Sweatt v. Painter, 1950). Accordingly, we regard the extension of Grutter to selective admission programs at other public higher education institutions as a reasonable next step but by no means assured. Grutter would permit the use of affirmative action at a public two-year institution if it could meet the Supreme Court's "strict scrutiny" test (Grutter v. Bollinger, 2003). That is, the college would need to demonstrate that diversification of the student body constituted a specific compelling state interest and its admissions process was narrowly tailored to accomplish this end. What remains unresolved, however, is how a community college might argue that affirmative action was justified by a compelling state interest and implemented in a manner that was narrowly tailored. A proposed resolution of these issues must be grounded on the Supreme Court's Grutter decision.

Grutter v. Bollinger

Barbara Grutter was a white female who applied for admission to the University of Michigan Law School in 1996 (Grutter v. Bollinger, 2001a). She was initially placed on a waiting list and eventually denied admission. Grutter responded in 1997 by filing a class action lawsuit against the President of the University, the Regents of the University, the Law School, and Law School officials, collectively referred to as the Defendants. Grutter's complaint, filed in Federal District Court, alleged the Defendants discriminated against her on the basis of race in violation of the Fourteenth Amendment's Equal Protection Clause, Title VI of the 1964 Civil Rights Act, and 42 USC [section] 1981. Grutter asserted race was a dominant factor in the admissions process and, as a member of a disfavored racial group, she was at a disadvantage even though her credentials were similar to those of admitted minority applicants.

In March 2001, the trial court ruled for Grutter concluding that the Law School violated the Plaintiffs' rights under the Equal Protection Clause and Title VI (Grutter v. Bollinger, 2001a). It enjoined the Law School from using race as a factor in admissions decisions. The Defendants appealed to the Sixth Circuit Court of Appeals and in May 2002, the Sixth Circuit ruled for the Defendants concluding that the affirmative action program was not prohibited by the Equal Protection Clause and Title VI (Grutter v. Bollinger, 2001b). The case was accepted by the Supreme Court on a writ of certiorari to resolve inconsistent decisions by the Sixth, Fifth, and Ninth Circuit Courts of Appeal (Grutter v. Bollinger, 2002; Hopwood v. Texas, 1996; Smith v. University of Washington Law School, 2000). The Supreme Court issued its five to four decision in favor of the Defendants and against the Plaintiffs in June 2003 (Grutter v. Bollinger, 2003). Writing for the majority, Justice O'Connor confirmed that in accordance with the Court's previous decisions, affirmative action was only permitted under the Equal Protection Clause and Title VI if an institution could satisfy the strict scrutiny test (Grutter v. Bollinger, 2003). In this case, the Court found that the Law School succeeded in meeting this test because its admissions process responded to a compelling state interest and was narrowly tailored.

The compelling state interest was the Law School's need to provide an education that included the benefits flowing from a diverse student body (Grutter v. Bollinger, 2003). Two factors were crucial for the Court in arriving at this conclusion. First, the Court found that the Law School's mission included the need to provide a rich educational environment to prepare students for leadership roles as lawyers in the public and private sectors. This environment required a "critical mass" of underrepresented minorities to develop a heterogeneous student body where a range of views could be presented without isolating or stigmatizing individuals. This diversity of viewpoints promoted understanding across the races, contributed to the breakdown of racial stereotypes, and helped students gain a better understanding of their colleagues.

Second, amicus briefs filed by professional organizations, business and industry officials, and retired civilian and military leaders of the United States Armed Forces supported the Law School's position. Amici cited several studies reporting that diversity in the classroom prepares students for an increasingly diverse workforce and society. In summary, the Court ruled that the Law School was entitled to some deference in making academic decisions based on its mission; additionally, the educational value of a diverse student body was endorsed by educational research and the independent conclusions of private and public sector representatives. The Grutter Court also found that the Law School's admissions process was narrowly tailored, thus satisfying the second prong of the strict scrutiny test. The admissions process did not use quotas and therefore complied with one of the few clear mandates announced in the Bakke decision (Regents of the University of California v. Bakke, 1978). Applicants were individually evaluated and compared against their counterparts on a wide range of factors including how they might contribute to the overall diversity of their class. Finally, even though the affirmative action program was not limited in duration, Justice O'Connor implied a 25 year termination point, noting it was unlikely the program would be needed in the distant future. Based on these considerations, the Court found that the admissions process was highly individualized, holistic, and constituted a minimal infringement on the rights of the majority. What was left unresolved, however, was whether the decision applied to other institutions and, if so, would institutions use affirmative action to reap the educational benefits of a diverse student body. in some states, institutions would not be given the choice. State referenda passed in California and Washington prohibited affirmative action policies at state postsecondary institutions (Selingo, 2003). The Texas legislature proscribed the use of affirmative action in its race neutral plan for public colleges and universities (Eckes, 2004). In Florida, affirmative action at public institutions was forbidden by the Governor's executive order (Selingo, 2003).

Our focus is on community colleges in states that have not proscribed the use of affirmative action in student admissions. In these states, we regard successful implementation of affirmative action as contingent on the positive resolution of two issues. Does Grutter authorize public two-year institutions to use preferential affirmative action to attain racially and ethnically diverse student populations in selective admissions programs? And, if they can use preferential affirmative action, should they? We address these issues in reverse order.

The Traditional Interpretation of the Open Door Admissions Policy

The community college is distinguished from other higher education institutions by its mission which is grounded on three interrelated commitments: a) a philosophy of open access, which incorporates the open door admissions policy; b) a promise to deliver a comprehensive curriculum; and c) a pledge to respond to the educational needs of adult learners in the community (Monroe, 1972). Each of these commitments plays a vital role in defining the community college mission. But open access is consistently cited by researchers and practitioners as the basis for idealizing community colleges as "democracy's college" (Rouche, Baker, & Rouche, 1987, p. 22) and integral to the evolving "democratization of higher education" (Vaughan, 1985, p. 18).

The philosophy of open access was outlined in the 1947 Report of President Truman's Commission on Higher Education (President's Commission on Higher Education, 1947a). For the Truman Commission, open access was only one dimension of a comprehensive effort to attain a "fuller realization of democracy" through greater participation in public and private higher education (President's Commission on Higher Education, 1947a, p. 8). A second dimension of this effort required the elimination of barriers that traditionally limited access to higher education. These barriers included racial and religious discrimination, gender discrimination, low family income, the rising cost of higher education, and the lack of local post-secondary institutions (President's Commission on Higher Education, 1947b). In order to promote greater participation and reduce barriers, an emerging higher education institution, the community college, was identified as the vehicle to "carry a large part of the responsibility for expanding opportunities in higher education," (President's Commission on Higher Education, 1947a, p. 37).

The community college would remove, "geographic and economic barriers to educational opportunity" (President's Commission on Higher Education, 1947a, p. 67) and provide all adult students with access to curricula meeting "the total post-high school needs" of the community (p. 68). The institution would admit academically qualified students to restricted liberal arts and vocational curricula. Students who were not yet qualified could enroll in unrestricted adult education curricula or individual courses to develop academic, artistic, or business skills. In either circumstance, the community college would become "a center of learning for the entire community, with or without restrictions that surround formal course work in traditional institutions of higher education," (President's Commission on Higher Education, 1947a, p. 69). This became known as the open door admissions policy (Vaughan, 1985). Adults could enroll at a local community college even if they lacked the academic skills or credentials traditionally required for post-secondary study. By enrolling in adult education or developmental courses students could develop the skills and acquire the credentials required for entry in traditional college level programs. In this manner, the community college provided new opportunities to adult learners.

These new opportunities were embraced by adult learners. But, the novelty of locating restricted and unrestricted programs at one higher education institution confused some high school teachers, guidance counselors, and members of the public (Vaughan, 1985). Eventually, community college leaders helped their communities understand the following nuances of the open door admissions policy. First, although the open door assured admission to the college, it did not guarantee admission to every program. Students who were not yet prepared for college level programs would be invited to enroll in adult education or developmental studies curricula. Second, admission to college level programs would be restricted to students with the requisite skills and credentials. Students entering college level programs would need to pass placement tests and provide evidence of a high school diploma or its equivalent. Third, admission to college level programs was open to all students who met these minimal requirements. Community colleges would treat students equally and would not use merit criteria to select the "best" applicants for college level programs. To be sure, classroom availability and budgetary considerations would limit enrollment in college level programs but merit criteria would not be used.

Researchers and practitioners have traditionally relied on two philosophical arguments to justify the open door admissions policy and both can be traced back to the Truman Commission Report (President's Commission on Higher Education, 1947a). Although these justifications are sometimes conflated in practice, they are conceptually distinct. The first is deontological and is grounded in the principle of egalitarianism or equal opportunity (Monroe, 1972; President's Commission on Higher Education, 1947b). It provides that in an open door institution, all students are welcome and none excluded because of, "race, sex, religion, color, geographical location, or financial status" (Rouche, Baker, & Rouche, 1987, p. 22). This argument holds that in a modern democracy, all minimally qualified adults should be able to pursue a college education. The second justification is teleological and specifically utilitarian (President's Commission on Higher Education, 1947a). It affirms that the open door admissions policy enables all students to improve themselves and this produces the greatest positive social, economic, and political consequences for all concerned (e.g., Demaree, 1986; Thompson, 1985).

These traditional arguments offer a rationale for the open door policy but they are incompatible with race-based preferential affirmative action for two closely related reasons. First, preferential affirmative action contradicts the egalitarian injunction to treat individuals equally. Second, preferential affirmative action is inconsistent with the utilitarian view that the greatest benefits to students, their employers and their communities is attained by admitting all who are minimally competent. Thus, an admissions process that selects the "best" student, however this may be defined, runs counter to the egalitarian and benefits justifications, as traditionally interpreted at community colleges. In our view, however, the traditional egalitarian and benefits justifications outlined in 1947 are outdated because they have not kept current with the evolution of the community college or the needs of students and their communities. We propose a reformulation of these justifications that reflects the contemporary needs and interests of community colleges and their students.

A Contemporary Interpretation of the Open Door Admissions Policy

The contemporary community college is the result of an evolutionary process that brought great change to these institutions over the last 40 years. Three of these developments have consequences for our proposed reformulation of the egalitarian justification; the evolution of the curriculum, the increasing reliance by racial and ethnic minority students on community colleges, and the emerging belief that community colleges must restrict enrollments because of funding limitations.

In the 1960s and 1970s, community colleges developed new vocational curricula as students and employers demanded career-specific programs to prepare for employment in many technical fields (Brint & Karabel, 1989; Cohen & Brawer, 2003). The importance of skill training continued during the 1980s and 1990s as employers faced an increasing need to hire workers who were familiar with a variety of computer hardware and software products. Institutions responded by developing new instructional programs for these advanced technology workers (Lawrenz, Keiser, & Lavoie, 2003). Parallel with development of these curricula was the adoption of new instructional technologies (Milliron & Miles, 2000) and distance learning programs (Floyd, 2003). Most recently, community colleges expanded the range of their curriculum by offering new baccalaureate (Evelyn, 2003; Floyd & Walker, 2003) and post-baccalaureate (Johnson & Briden, 2004) teacher education programs. These developments explain how community colleges have become critically important in providing students with the employment skill training needed to participate in the current economy (Levin, 2001). And they are consistent with the reported needs of the current labor market. Although 35 percent of the available jobs in 1991 could be filled by unskilled workers, by 2000 only 15 percent of these positions were open to this segment of the labor market (Lever-Duffy, 2000).

The evolution of the curriculum was matched by significant changes in the demographics of the community college student body (Bragg, 2001). This is especially true in the case of racial and ethnic minority enrollment. Between 1976 and 2000, public two-year institutions saw a 267 percent increase in the enrollment of racial minority students. During this same period, enrollment of white students increased by only 123 percent. In 1976, minorities represented 19.6 percent of all students enrolled in public two-year institutions; by 2000 minorities represented 34.4 percent of all students enrolled (National Center for Educational Statistics, 2002). The increasing reliance of minority students on public two year colleges is also revealed by the distribution of this population across all higher education institutions during this same 25 year period. Public two-year institutions enrolled 52 percent of minority students in public post-secondary education in 1976. By 2000, 57 percent of minority students enrolled at public colleges and universities were at two-year institutions.

A third factor that must be considered in examining the egalitarian justification for the open door is the emerging belief that community colleges must restrict enrollments because of funding limitations (Vaughan, 2003). Vaughan noted that although this course of action violates the traditional notion of open access and runs against the community college culture, campus leaders must restrict enrollments in order to secure the academic and financial integrity of their institutions. Accordingly, he argued for a new understanding of the open door policy which would commit institutions to serve "all segments, but not all members, of society," (Vaughan, 2003, p. B24).

These three developments illuminate a new reality that requires a new interpretation of the egalitarian justification. If racial and ethnic minorities are a growing population at public two-year institutions and instructional programs at these institutions are playing a greater role in securing students' future, then a retreat from a commitment to serve all students must be tempered by an admissions process that does not replicate the inequities of traditional merit based admissions processes. A renewed egalitarian commitment would need to serve all segments of the population and, when necessary, ensure this through a preferential affirmative action process that admits minimally qualified students from all segments of the community.

A renewal and reformulation of the benefits justification should acknowledge another reality. A diverse student population promotes a rich educational environment (Milem, 2003). The positive consequences flowing from a community college education will be significantly reduced for all stakeholders if students are not learning in diverse educational environments. Consequently, in order to secure this benefit for all community colleges students, enrollment of a critical mass of underrepresented racial and ethnic minorities in selective admissions programs, when not acquired through traditional admissions processes, should be pursued through preferential affirmative action.

We acknowledge that race conscious admissions were not contemplated by members of the Truman Commission in articulating the egalitarian or benefits justifications. But, in our view, the ends envisioned by the Commission may now require that some community colleges utilize a carefully devised and implemented affirmative action policy when needed to diversify the student body in selective admissions programs. Campus leaders must assess their specific institutional needs for such a policy. Its implementation, however, would need to satisfy the Supreme Court's "strict scrutiny" test.

How Community Colleges Can Meet the Strict Scrutiny Test

In order to meet this test, community college leaders would need to first demonstrate that their affirmative action program satisfies a compelling interest. Following Grutter, a college would need to demonstrate that the benefits flowing from a diverse educational environment are a priority under its institutional mission. Under our argument, campus leaders may use two lines of argument to satisfy this requirement. The first provides that the use of affirmative action is required in order to serve all segments of the community and thus maintain the commitment to a philosophy of open access. The second holds that affirmative action is required to enroll a critical mass of underrepresented minority students ensuring the educational experiences needed to prepare all students for their careers and academic experiences at senior institutions. Colleges would need to offer convincing evidence to support both arguments.

A community college affirmative action program would also need to be narrowly tailored. The review of applicants would need to be highly individualized and holistic. The preference granted to minority students would need to constitute a minimal infringement on the rights of the majority. An admissions process that met these requirements would have the following characteristics.

Initially, a college would need to be explicit in affirming that the objective of its narrow tailoring is to enroll a "critical mass" of underrepresented minority students to provide access to all segments in the community and secure the educational benefits accompanying a diverse student body. Colleges would need to demonstrate good faith in pursuing this end (Eckes, 2004). For example, institutions would need to justify their identification of underrepresented minorities receiving a preference. This population would inevitably vary from one institution to another. Additionally, the determination of a "critical mass" would need to be made given the college's expertise and experience and its year to year assessment of the relevant program learning environments.

A highly holistic and individualized admissions process would not only consider traditional admissions criteria (high school or college GPA, scores from admissions and aptitude exams, and letters of reference) but also a wide range of applicant qualities that might contribute to the diversity of the class. These qualities could include an applicant's race, ethnicity, gender, religion, disability, age, sexual orientation, and life experiences. Institutions might identify other critical qualities given the needs of its student population, service area or academic program. As was the case in Grutter, however, a holistic and highly individualized admissions process would not justify enrolling students who failed to meet minimal admissions requirements.

An affirmative action policy that ensured minimal infringement on the rights of the majority would have the following features as identified in Grutter. First, the adoption of an affirmative action policy would follow the presentation of reliable evidence that alternative means to acquire a diverse student body were unsuccessful. Second, awarding a preference in the admissions process, based on race or ethnicity, would need to be limited to selective admissions programs. The policy would need to be terminated if it was no longer required to enroll a critical mass of minority students. Finally, following Justice O'Connor's opinion in Grutter, a minimal infringement upon the rights of the majority would require a program limited in terms of its duration. Of course, such an affirmative action program would not guarantee a racially or ethnically diverse student body. Grutter precluded any guarantee when it ruled out the use of quotas. But, like the University of Michigan Law School, community colleges would be able to legitimately seek a more diverse student body for selective admissions programs when this did not follow from a racially and ethnically blind admissions process.

The Implementation of Affirmative Action

If the current political and fiscal environment for public higher education continues, an increase in the number of selective admissions programs is probable. This will force campus leaders to make difficult decisions. One of these will concern the use of affirmative action. When colleges implement affirmative action policies, legal challenge is always possible. With appropriate planning and legal consultation, however, affirmative action can be applied in a manner consistent with the requirements stated in Grutter. Positive outcomes like the one attained by the Law School will be contingent on following the Grutter "road map" and generating a clear document trail that demonstrates the need for affirmative action.

Although we have offered our argument in light of our academic training and practice in the law and multicultural higher education, we are also mindful of lessons learned given our experiences as former community college administrators. We understand that the implementation of affirmative action at some institutions may unsettle a campus culture grounded on a commitment to "equal opportunity." This commitment was a point of pride in the 1960s and 1970s when new community colleges embraced the open door admissions policy (Brint & Karabel, 1989). But, today campus leaders must recognize that an open door admissions policy limited to equal opportunity is outdated and in need of renewal. Such a policy fails to acknowledge changes in the student body and the curriculum. It also fails to acknowledge the fiscal reality confronting many institutions (Vaughan, 2003). We believe that a new campus culture committed to synthesizing the ideals of the past with those of the future will recognize that affirmative action is an integral part of this process and an important step in continuing the democratization of community colleges (Rhoads & Valadez 1996).

Conclusion

The Supreme Court's 2003 Grutter decision affirmed that a selective law school could use affirmative action to provide a preference to racial and ethnic minorities in order to produce a diverse student body. But Grutter was silent on its application to other public higher education institutions. We have argued that when community colleges offer selective admissions programs and cannot attain diversity through regular admissions processes, they can and should use race-based preferential affirmative action to serve all segments of their community and secure the educational benefits of a diverse student body. Community college leaders intent on reaping the educational benefits of a diverse student body now have the moral and legal authority to move ahead.

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Harbour, J.D., Ed.D. is an Associate Professor in the School of Education. Lewis, Ph.D., is an Assistant Professor in the School of Education.