An analysis of the legal and ethical challenge of diversity in the academia.

1. The Legal &
Ethical
Challenges of
Diversity in the
Academia
Aitza Marie Haddad Núñez, J.D., LL.M.

2. Encouraging diversity in higher education institutions
remains an ethical quandary for policy-makers,
administrators and professors nationwide. Although
most academic institutions agree that a diverse student
body provides rich and essential educational experiences,
the implementation of policies and practices that support
diversity continue to be problematic

3. • “[T]he value of increasing diversity in the disciplines is
that new scholars can challenge and push their
disciplines forward in new and exciting ways” (Thomas,
et al., 2007, p.182).
• Both minority graduate students and faculty members
face additional barriers in the academia;
• Isolation
• Less access
• Under-representation across the academy and some
professions

4. • Affirmative Action
• intended to work on the idea that there are some forms
and levels of stratification, such as social and racial,
which are institutionalized in society through the use
of different discourses.
• And cannot be alleviated without allowing for some sort
or form of collectively accepted and enforced
intervention.
• Moral Justification – Some form of protection and or
intervention can be understood as necessary in order to
lessen some existent social conflict that is generally based on
some sort of racial and or social stratification.

5. • University of Cal. v. Bakke (438 U.S. 265, 311-15,
1978)
• A majority of the Supreme Court introduced the
term “diversity” to construct a new discourse for the
application of the principle of affirmative action.
• Reexamined for the first time in 2003
• Grutter and Gratz cases – failed argument that
diversity is not a compelling interest.
• Since then, it is well understood that diversity is in fact “a
constitutionally acceptable justification for affirmative
action in college and university admissions” (Moran, 2006,
p.225).

6. • “[D]iscourse is a form of social practice that both
constitute the social world and it’s constituted by other
social practices” (p.61), which “are shaped by social
structures and power relations […] that people are often
not aware of…” (Jørgensen & Philip, 2002, 2014, p.66)
• The discourses of diversity and affirmative action have
been constructed and constituted by the many instances
in which US Courts, in seeking to prohibit racial – and
more recently gender – discriminations, have shifted
the debate about what it is affirmative action to what it’s
the court’s role in dealing with race relations.
• Diversity means much more than mere racial or gender
differences.

7. • The term diversity, rather than helping to provide a
framework of equality and social justice, has served
to weaken the relationship between social justice
and racial prejudice, with the ultimate goal of socio
economic justice.
• The legal discourse, and the different relevant
teacher-student relationships and administrative
practices established from Bakke to now, have
shifted from a notion of pure social justice to a notion
that social justice must rely on diversity in order to
be effectively considered as such (Morgan, 2006).

8. • Perception that protections and interventions are
facilitators in the shaping and sharing process of
stereotypes that respond to already existent
social and racial prejudices and discriminations.
• Lack of scholarly support for the arguments used
to consider personal characteristics, such as
gender and race, instead of academic merit by
itself,
• Ambivalence of the court in continuing to vaguely
apply the concepts of race and diversity.
• Mutation of the measure:
• From a strategy of social justice to an ideology,
and a justification for racial discrimination

9. • A need for an understanding of the relation
between Diversity and Capitalism.
• Race ≠ diversity ≠ Prejudice.
• Measures need to be narrowly tailored in a
case-by-case basis.
• Specific components of the communication
styles of ethnic groups, such as the protocols of
participation in discourse, should be
understood, enhanced, and applied.
• In a manner that could provide a more culturally
responsive teaching environment for both students,
faculty, and administrators.

10. • An understanding of how conflicts and issues of diversity
affect academia would provide an insight of how
different teaching and learning styles can interfere with
academic efforts and outcomes that could help in the
crafting and application of different teaching learning
styles and methods.
• This understanding can be obtained by “studying a wide
range of ethnic individuals and groups; contextualizing
issues within race, class, ethnicity, and gender; and
including multiple kinds of knowledge and perspectives”
(Gay, 2002, p.108).

11. Diversity means more than just racial and or
gender differences.
The future of a healthy democracy relies, not on
constitutional law nor on the constitutional
culture, but on the people’s ability to define
diversity and equality, willingness to be actively
and effectively engaged in these issues, and the
court’s appropriate application of the original
intent of the principle of affirmative action and
other important concepts.