Supreme Court cases on affirmative action threaten diversity in medicine

Abstract

During the Supreme Court oral arguments about affirmative action in October 2022, Justice Elena Kagan asked, “[I]f you’re a hospital and you serve a diverse group of patients, is it super important to you to have a diverse set of doctors?” Justice Kagan’s question raises whether the Supreme Court, poised to end affirmative action, may diminish the diversity of health providers in the United States. Two affirmative action lawsuits facing the court—against the University of North Carolina (UNC) and Harvard University—will likely have severe ramifications for medical training and health equity. Given the likelihood that the Supreme Court will end affirmative action, medical institutions must plan how to further diversity without incurring liability. More broadly, the cases follow a pattern of judicial intrusion into the affairs of medicine and health. As with abortion, contraception, health insurance, and COVID-19, the Supreme Court has encroached on the field of medicine, denying expert guidance on what is required in order to achieve a healthy and equitable society. The affirmative action cases are emblematic of a high court intent on opposing racial progress and other forms of social change. The affirmative action cases before the Supreme Court follow a recent pattern of judicial intrusion into the affairs of medicine and health. Image credit: Shutterstock/ProStockStudio. Race in Admissions The lawsuits, filed in 2014, allege that both universities impermissibly use race as a factor in admissions, amounting to racial discrimination. Medical schools are indirectly in the crosshairs of this litigation, given that most medical schools today use race in admissions to help secure a racially diverse student body. However, consideration of race in admissions has been increasingly subject to legal challenge, the first in a parade of cases being Regents of the University of California v. Bakke. Allan Bakke, a White male, was denied admission twice to the University of California Davis (UC Davis) School of Medicine and challenged the school’s practice of reserving 16 spots each year for racially or ethnically diverse medical students (1). The Supreme Court invalidated this program as an impermissible racial quota, but said schools could still consider race as a plus factor. Perhaps because this litigation was so successful (and landed Bakke a spot at UC Davis’s medical school), White applicants denied admission have continued to press challenges to affirmative action for more than 30 years, leading to decisions that have further narrowed consideration of race in admissions. In Grutter v. Bollinger (2003), the Supreme Court decreed that consideration of race must be part of a holistic review, and racial quotas are impermissible. Medical schools have taken the Supreme Court’s charge and shifted toward a more holistic assessment of their applicant pools, with the support of the Association of American Medical Colleges (AAMC) Holistic Review Project (2). Despite the resiliency of medical school admissions, the Supreme Court has narrowed affirmative action to a small corner of consideration in admissions processes—which may soon also become illegal. As of 2015, there is estimated to be a deficit of about 114,000 Black and 81,000 Hispanic doctors compared to what one would expect from proportions of the US population (3). This dearth is at least partially historical: Racial and ethnic minorities were excluded from attending medical school and joining medical organizations, such as the American Medical Association (AMA). In 1900, 11.6% of the US population was Black, compared with 1.3% of physicians. In 2018, 12.8% of the population was Black, but only 5.4% of physicians (4). Over 120 years, then, the fraction of Black physicians has increased by only 4 percentage points. This lack of representation emphasizes why the fate of affirmative action is essential to securing a racially and ethnically diverse physician body in the United States. Affirmative action helps compensate for systemic inequities throughout childhood and young adulthood that impede the significant steps required to apply to and be admitted to medical school (5). The current biggest gatekeeper to medical school admission is the Medical College Admission Test® (MCAT®), whose notable racial and ethnic disparities are well documented (5 –7). As of 2022, Black and American Indian/Alaska Native medical school applicants have an average MCAT® score of 497.4 and 498.7, respectively, which is about one standard deviation below the average score for White applicants of 507.9 (8). Although these disparities do not mean that the test makers intentionally discriminate by race, they reflect the systematic disadvantage facing racial and ethnic minorities applying to medical school. Using the natural experiment from states banning affirmative action, researchers have found that affirmative action significantly impacts medical school diversity. A 2022 study found that states with affirmative action bans saw a 4.8 percentage point decline in underrepresented racial and ethnic minority students in public medical schools. In contrast, control states saw an increase of 0.7 percentage points (9). These data forecast what could happen at the national level should the Supreme Court issue a pronouncement broadly prohibiting consideration of race in medical school admissions. Pivotal Lawsuits The lawsuits allege that UNC has violated the Constitution’s “Equal Protection Clause,” which bars states from denying any person “the equal protection of the laws.” However, this clause only applies to governments. So for Harvard, the lawsuits use Title VI of the Civil Rights Act of 1964, which prohibits any person in the United States from being subject to discrimination under any program receiving federal funding*. The Supreme Court has interpreted Title VI to bar the same conduct as prohibited by the equal protection clause. Together, these two cases reach most educational institutions, which is likely why they are being pursued at the same time. These suits were brought by Students for Fair Admissions (SFFA), a group founded by Edward Blum. Blum has been the key driver of anti-affirmative-action lawsuits to assist White applicants denied admission. However, his intent on this go-round was to move from White plaintiffs to Asian-American plaintiffs to build public support for the idea that affirmative action is racially discriminatory (10). The strategic positioning of Asian Americans in the lawsuit may seem odd, as any discrimination in a university’s admissions does not necessarily impugn affirmative action as a broad program. But for the Supreme Court, the lawsuit has successfully created an association between consideration of race in admissions and potential discrimination against Asian Americans. Most legal commentators believe the Supreme Court will end affirmative action in education. At oral argument, many of the more conservative-leaning justices seemed openly skeptical of the program. Most likely, the decision would not be confined to admissions, but would invalidate any consideration of race in educational programs, such as for scholarships, financial aid, and leadership positions. This restriction would apply to the education of the next generation of physicians, physician assistants, nurses, nurse practitioners, and other providers. More broadly, it may become more challenging to seek diverse hospital administration without going afoul of non-discrimination laws. This is especially ironic because, historically speaking, Title VI was instrumental for forcing hospitals to desegregate by law (11). But because the Supreme Court may now deem consideration of race itself to be discrimination—even when it would benefit a racial group and society as a whole—the Supreme Court may stipulate a rule with far-reaching effects across the US healthcare industry. This would not be the first Roberts Court decision to re-interpret civil rights laws as protective of White people, as opposed to the subordinated groups these laws were meant to protect. For example, in Parents Involved in Community Schools v. Seattle School District (2007), the Supreme Court held that voluntary school desegregation plans in Seattle, WA, and Louisville, KY, violated the Equal Protection Clause. Although this clause was created to help remedy racial discrimination after the Civil War, the Supreme Court used it to impede efforts to address systemic racism (12). In this case, Chief Justice Roberts famously quipped, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” thereby imparting a “color-blind” reading on a clause aimed at racial progress. The Roberts Court’s belief that color-blindness will end racism overlooks the more structural and systemic forms of racism that are likely the biggest propagators of disadvantage today (13). At the same time, the color-blind approach invalidates policies aimed at racial progress like affirmative action, thus entrenching the benefits of Whiteness. Ending consideration of race could place medical schools in a difficult position. According to Liaison Committee on Medical Education (LCME) Standard 3.3, medical schools must have “effective policies and practices” aimed at achieving the “inclusion … of persons from different racial, ethnic, economic, and/or social backgrounds” (14). Medical schools may be torn between their duties for accreditation and the law of the Supreme Court. It may be that LCME standards will have to change. But in the meantime, schools may violate the current standards if they are not sufficiently diverse. This tension between law and medicine is striking and highlights the impact of our current judiciary on attaining a core objective of medicine: diverse providers that can care for a diverse populace. Affirmative action’s loss may result in medicine and healthcare that look substantially less diverse. And any loss of diversity could be self-perpetuating. Through their presence and contributions, racial and ethnic minorities help make spaces more accommodating and inclusive to people from differing backgrounds. For example, testing of implicit bias using the well-validated Implicit Association Test has revealed that African-American physicians have far less implicit bias than White physicians (15). Racial and ethnic prejudice, prolific throughout medicine, impact physician–patient communication, treatment decisions, and patient outcomes (16 –18). A less racially diverse pool of providers could bring heightened bias toward racial and ethnic minorities, leading to a spiral effect, in which medical spaces become less varied across the board (19). Losing racial and ethnic minority physicians may also seriously affect health equity. Racial concordance between provider and patient is associated with improved communication, lower emergency department use, and better outcomes (20). Although that does not necessarily militate in favor of assigning physicians to patients by race, it raises serious questions about healthcare inequity should the physician body look less like America in all its diversity. There are also unique health concerns, given the legacy of injustice affecting certain racial and ethnic groups—concerns that diverse providers may be better able to notice and address. And because medicine is an enriching and lucrative career, everyone should have a fair chance to apply, regardless of race or ethnicity. Maintaining and Improving Diversity The possible downfall of affirmative action threatens to worsen an already difficult situation at medical institutions in the United States. They should therefore prepare now for a potential Supreme Court loss. The first consideration is whether the rulings would even apply. The existence of lawsuits against both Harvard and UNC suggests that the prohibition on using race will apply to state and private institutions. However, Title VI applies to private institutions only when they accept federal funds. Unfortunately, most medical schools depend on federal funds, including federal financial aid, federal grant money for research, the Medical Science Training Program, and Medicare and Medicaid funds for healthcare activities. To the extent that a private institution can avoid taking federal money, it may be wise to do so in order to avoid the direct impact of these rulings. Delegation can help separate admissions activities from the acceptance of federal funds. Medical schools can set up organizations that conduct specific admissions assessments involving race. The schools can then use any metrics and recommendations second-hand. Such structuring is common for tax purposes, for separating nonprofit from political activities (i.e., 501(c)(3) vs. 502(c)(4)), and for reducing tort liability. Medical schools should consult with attorneys as soon as possible to plan organizational offshoots that can consider race. Many medical schools will be driven to alternative metrics, or proxies, to attain racial diversity. Such proxies could include family history, experiences of discrimination, socioeconomic status, and geography. However, proxies are limited for at least two reasons. First, they may poorly approximate race. For example, experiences of discrimination may seem to correlate with race, but they have frequently been claimed by White applicants, including in the Supreme Court’s historical affirmative action cases. And, second, the upcoming decision may prohibit not only consideration of race, but also similar metrics. At oral argument, an attorney for SFFA stated that it should be impermissible to consider whether a student descended from enslaved people because that would be a “pure proxy for race.” All told, given the state of de facto segregation in the United States, geography is likely a decent proxy. Another option is pathway or recruitment programs, which aim to fold racial and ethnic minorities into educational environments from which a portion of students are chosen. These programs can also provide support for standardized tests and preparing applications—which can be daunting to prospective students and a barrier to diversity. Ultimately, asking larger questions about the relationship between law and medicine is imperative. Across numerous domains over the past 30 years, judges have sidelined medical expertise and issued decisions that obstructed medicine’s core mission. Supreme Court decisions have made obstetrics and gynecology practice more difficult by curtailing access to contraceptives and abortion (21); invalidated COVID-19 protective measures, including a vaccine requirement and an eviction moratorium; and weakened the Affordable Care Act and Medicaid expansion, to name a few examples. At the same time, the Court has moved the law to be fairly hostile toward discrimination lawsuits (except in the affirmative action context). These trends co-occur with a fall in US life expectancy, particularly among racial and ethnic minorities, and increased burnout in medicine. They also raise serious concerns about medicine’s ability to function alongside a judiciary that is increasingly aggressive in limiting racial progress and other forms of social change. The affirmative action cases before the Supreme Court raise serious questions about the future of a diverse medical profession and the integrity of healthcare itself. In advance of the decision, medical programs that value diversity and accept federal funds (or are government institutions) would be wise to consider alternative paths to create a racially diverse student body without explicitly considering race. With some strategizing, they can preserve some racial diversity while keeping to the letter of the law.