The Erosion of Affirmative Action

Hector W. Soto, Esq., Assistant Professor
Behavioral and Social Sciences Department – Public Policy and Law Unit
& Chair, Affirmative Action Committee of the College-wide Senate


The specter of a radical change regarding the law of affirmative action did not loom imminent during last April when I, representing the Affirmative Action Committee of the College-wide Senate, attended the American Association of State Colleges and Universities (AASCU) conference in San Diego, California entitled Equity, Diversity and Democratic Inclusion.  The college, and its various perspectives, were well represented at the conference as OAA Associate Dean Ann Mester, Professor Nelson Nunez, former OAA Faculty Diversity Fellow, and Lauren C. Gretina, Esq., the college’s Chief Diversity Officer, were also in attendance.

The concepts of equity, diversity and inclusion were presented as the principle guideposts for future efforts by colleges and universities toward fairness regarding higher educational access and subsequent successful retention and graduation of students from underserved or underrepresented US population groups.  The Equity-Diversity-Inclusion framework was also presented as applicable for assessing and achieving similar goals as regards faculty and staff hiring, promotions and other employment actions.  So, what are these concepts, and how does their interconnected process work to achieve the stated goals?

Perhaps the easiest concept to grasp is diversity.  Diversity refers to achieving and maintaining within all levels of the student body, or alternatively within faculty-staff personnel, a representation that is not biased or skewed as may be indicated by an over-representation or under-representation of any particular population group.  The under-over representation would be determined by comparison of the make-up of the population of the student body or faculty-staff to that of the general population, or maybe more appropriately, as compared to the local population of the community where the college-university is situated.

Diversity representation is not limited to US population groups recognized legally as protected classes so that for any particular college or university diversity may include population groups based on marital status or gender status, migrant or immigration status, veteran status, justice-involved status, first generation college status or other similar groupings.  The college-university seemingly has discretion to determine the nature and composition of its diversity.  Diversity is a process primarily concerned with student and personnel recruitment, advancement and retention.  Successful achievement of college-university diversity lays the foundation and facilitates positive implementation of equity and inclusion.

Equity is concerned with the goals and objectives of the college-university regarding student achievement, retention and graduation.  Equity’s objectives go to the setting of realistic and fair standards of academic progress and accomplishment that are then supported by college-university policies, programs and practices such that each student, but especially those students from underrepresented or underserved populations, will have available the supports that s/he may need to achieve academic success and graduate.


Equity as concerns faculty and staff, contemplates unbiased employment standards and personnel actions including, but not limited to hiring, appointments, promotions and tenure.  Moreover, equity proposes a concrete process for insuring, and measuring, the continuing commitment of the college-university to undo any previous exclusion of a population group, particularly an underserved or underrepresented group.  Simultaneously, equity as a process will be contributing to the creation of a college or university that more accurately reflects today’s society and/or the communities being served by the college-university.

Inclusion is a more complicated concept. Inclusion is also a concept that has a more distinct meaning as applied to students as opposed to faculty and staff.  For students from underserved or underrepresented population groups, inclusion requires that the college-university regularly review and assess activities and/or structures whether administrative, pedagogical or institutional that contribute to students from these groups becoming so isolated or estranged that the student fails to complete his/her registration, unofficially withdraws, fails out or drops out.  The assessment would also monitor the access and/or effectiveness of those supports and services available to the student that were to intended to prevent such an outcome.  Moreover, inclusion requires that the college-university make whatever changes may be necessary to its processes that may be working or pushing against the acceptance or participation of these students as full and equal members of the college-university community.

Inclusion concerning faculty and other personnel refers to the active and meaningful engagement related, but not limited to decision-making, policy-making, administration and governance within the college-university.  And while personnel diversity, or lack of bias, could technically be demonstrated by a college’s achievement of a statistical representation of underserved or underrepresented population group members, inclusion contemplates more.  It is not enhanced diversity.

Indeed, inclusion goes to the prevention of tokenism, isolation, revolving door hiring-firing, or ghettoization of the underserved or underrepresented group members within certain departments or units. Moreover, the end goal of inclusion in the context of faculty and staff is to achieve full and equal acceptance and participation of the previously excluded faculty or staff.

Equity, diversity and inclusion take place against the backdrop and history of affirmative action.  A concept which was not mentioned, much less addressed by any keynote plenary session presenter, or any presenter or participant in the four breakout sessions that I attended.  Yet, affirmative action remains the law and policy of the land as a remedy for past discrimination.  Why then its absence as a topic of discussion?  Perhaps affirmative action was not as much absent as much as it was ignored.

The reality is that affirmative action is no longer either a robust concept or policy.  During the last 30 years, the Supreme Court and governmental policymakers have succeeded in narrowing the application and scope of the concept by framing opposition in terms of reverse discrimination, the advancement of unqualified and/or unworthy candidates, the infallibility of standardized tests as a measure of candidate competency, the bogeyman of racial-ethnic quotas and, most ironically, calls for color blind application of the law.

The announcement by the US Justice Department that it will be supporting the Asian plaintiffs’ claims of “racial preferences and ‘reverse’ discrimination” in their  lawsuit against Harvard University’s admission policies and procedures (the trial commenced on October 15, 2108 in the Federal District Court of Massachusetts) coupled with the recent solidification of the conservative block of the Supreme Court (recent appointment of Brett Kavanaugh as a Supreme Court Justice) make it all but certain that the role of affirmative action as a remedy for past discrimination may soon come to an end.  And if not ended, emasculated to the point of being null and void for all meaningful or practical purposes.




Anticipating the legal death of affirmative action, the AASCU perhaps strategically decided to nonetheless address the issues of higher educational access, successful retention and graduation of students from all sectors of US society by underscoring a different framework for conceptualizing and addressing these issues, namely, equity, diversity and inclusion.

The three concepts may well be the key guideposts for future efforts by colleges and universities striving for fairness and equality regarding higher educational access and success for students from underserved or underrepresented US population groups; and similarly, for underserved and underrepresented group members as concerns faculty-staff employment matters.  However, in the absence of any governmental mandate, or even possible acknowledgement of the value of these efforts and objectives to colleges and universities, and by extension our society, the question remains: will colleges and universities be up to the challenge? The AASCU is hoping yes.


Respectfully submitted,




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