Legal Issues in Developmental Education: Affirmative Action, Race, and Critical Mass

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On June 23, 2003, the United States Supreme Court decided that colleges and universities could consider an applicant's race and ethnicity, along with other factors, to ensure a diverse student body (Grutter v. Bollinger). Their decision was unequivocal on that point. In reviewing the University of Michigan's admissions policies, the Court ruled that diversity is a compelling interest and resolved a disagreement among the lower federal courts about whether race is a permissible factor in admission decisions (Ancheta, 2003; Miksch, 2002b). The Court rejected race-blind and race neutral approaches advocated by the plaintiffs and the U.S. government and instead upheld the constitutionality of employing race as a factor in the admissions process. According to the Court, affirmative action programs that promote diversity on college and university campuses are constitutional as long as individual review is a component of the admissions process (Grutter v. Bollinger; Gratz v. Bollinger, 2003).

When institutions of higher education use race and ethnicity as categories in the admission process to diversify the student body, the Court uses a two-part test to evaluate if the use of race passes "strict scrutiny" and is therefore constitutional (Miksch, 2002b). First, the court must determine if the policy serves a "compelling governmental interest." The goal of the policy must be especially important and supported by sufficient evidence to meet the first part of the test. In Grutter v. Bollinger (2003) and Gratz v. Bollinger (2003), the Supreme Court relied on social science evidence and Justice Powell's reasoning in Regents of University of California v. Bakke (1978) to determine that the promotion of diversity is a compelling interest.

The second prong of the strict scrutiny test requires that the policy is "narrowly tailored" to satisfy the compelling governmental interest. The University of Michigan's Law School admissions policies were found to be narrowly tailored (Grutter v. Bollinger, 2003), however, the Court struck down the undergraduate admissions policy because Michigan did not provide a sufficiently individualized consideration of candidates' overall qualifications in seeking to promote diversity (Gratz v. Bollinger, 2003).

This column will focus on the Supreme Court's affirmative action rulings and the implications for developmental education programs, including race-conscious recruitment and outreach, as well as financial aid and support programs.

Policy to Admit a Critical Mass is Constitutional

It is important to discuss in detail the University of Michigan Law School's admission process, because the U.S. Supreme Court upheld its use of race (Grutter v. Bollinger, 2003). The Law School's goal is to "admit a group of students . . . with substantial promise for success in law school and a strong likelihood of succeeding in the practice of law and contributing in diverse ways to the well-being of others" (Grutter, slip op. at 1). In order to implement this goal, the admissions office evaluates each applicant based on a personal statement, letters of recommendation, grades and test scores, and "an essay describing ways in which the applicant will contribute to the life and diversity of the Law School" (Grutter, slip op. at 2). The policy recognizes many possible bases for diversity admissions. The policy, however, reaffirms the Law School's commitment to racial and ethnic diversity in particular. Admission officers consider the race of each applicant along with other factors to ensure that a "critical mass of underrepresented minority students" will be admitted to "realize the educational benefits of a diverse student body" (Grutter, slip op. at 5). The Law School presented social science evidence proving that a critical mass of minority students encourages underrepresented students to participate in the classroom and not feel isolated or as if they are a spokesperson for their race (Ancheta, 2003; Gudeman, 2001). …