The Right Thing to Do, The Smart Thing to Do Enhancing Diversity in the Health Professions -- Summary of the Symposium on Diversity in Health Professions in Honor of Herbert W. Nickens, M.D. (2001) / Chapter Skim
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Current Legal Status of Affirmative Action Programs in Higher Education
Current Legal Status of Affirmative Action Programs in Higher Education
Pages 91-116
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From page 91... ...
educating and training culturally proficient health care practitioners; 4) educating and empowering health care consumers to navi~ Assistant Professor of Law and Director of Clinical Law Programs, University of Maryland Law School; Director, Office for Civil Rights, U.S.
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From page 92... ...
Regarding the diversity issue, a number of steps have been taken to increase the pool of minority health practitioners. These measures include aggressive outreach and recruitment, 'pipeline" programs that expose minority students at an early age to health sciences, and affirmative action programs that permit the use of race or ethnicity as one factor in the admissions process.2 These affirmative action programs have come under substantial attack.
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From page 93... ...
Texas, struck down as unconstitutional an aff~rmative action program that had been in place in the University of Texas law school. In so doing, the court effectively precluded higher education institutions as well as other entities in the Fifth Circuit, which covers Texas, Louisiana, and Missis3 Cohn, D
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From page 94... ...
Another study found that Latino and African-American physicians were much more likely to choose primary care specialties as compared with non-minority physicians, and that primary care physicians were the most likely to serve in physician shortage areas. Thus, given the shared goal of eliminating racial and ethnic disparities in health, these studies strongly suggest that increasing the pool of minority health professionals would reduce racial and ethnic disparities, as these practitioners are more likely to provide services for underserved poor and minority populations.
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From page 95... ...
An analysis of the legal status of affirmative action in higher education begins necessarily with an understanding of the constitutional standard, what it means, and a discussion of the landmark Bakke decisions A considerable amount has been written about Bakke, and analysts and courts have disagreed about its meaning. Most recently, for instance, two federal judges in the United States District Court for the Eastern District of Michigan, one of whom was hearing a constitutional challenge to the admissions policy at the University of Michigan undergraduate school, and the other who was hearing a similar challenge to University of Michigan law school admissions policy, reached diametrically opposite conclusions as to the meaning of Bakke.
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From page 96... ...
It is with this background in mind that it is useful to turn to the Bakke decision, which remarkably remains the only Supreme Court case addressing the constitutionality of race by higher education institutions in the admissions process. Bakke involved a challenge to the admissions program at University of California at Davis Medical School.
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From page 97... ...
Supreme Court held that diversity can be a compelling state interest in the higher education context justifying the use of narrowly tailored, race-conscious admissions programs? Courts and commentators disagree vigorously on the answer to this question.
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From page 98... ...
The United States Department of Education has relied upon Justice Powell in issuing guidance to educational institutions that narrowly tailored affirmative action for purposes of attaining a diverse student body is constitutional and complies with Title VI.20 The question remains: will this reliance prove to have been justified?
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From page 99... ...
Regarding the racial disparities in enrollment, retention, and graduation, the appellate court presumed that the scholarship program was invalid unless the UMCP could prove that Me current racial disparities related solely to its own past discrimination. The university, supported by the United States Department of Justice, sought Supreme Court review of this decision and argued that the appellate court had set the legal bar for a remedial race-conscious program too high.
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From page 100... ...
2. Diversity as a Compelling Interest It appears that the future viability of race-conscious admissions In higher education hinges on whether the Supreme Court will rule that Bakke remains good law and stands for the proposition Mat diversity is a compelling interest that justifies the use of narrowly tailored, race-conscious admissions programs.
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From page 101... ...
A federal district judge in Georgia adopted the Hopwood rationale in striking down a race-conscious admissions program at the University of Georgia.3i The United States Department of Justice, in a number of briefs filed during the Clinton administration, has argued that Hopwood was wrongly decided, and that Bakke and the diversity rationale in higher education remain good law.32 Other courts have also rejected Hopwood or have explicitly refused to declare the Bakke diversity rationale dead. The Ninth Circuit, in a case involving a legal challenge to the race-conscious admissions program at the University of Washington Law School, found that diversity is a compelling interest justifying We use of narrowly tailored, race-conscious admissions programs.33 The court explicitly noted that Baklce remains good law and stands for the proposition that diversity can be a compelling interest in the higher education context.
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From page 102... ...
The court explicitly declined to declare one way or the over that Bakke's diversity rationale remains good law. Instead, the court noted that "we assume arguend~but we do not decide that some iterations of diversity might be sufficiently compelling In specific circumstances, to justify race-conscious actions."38 The Fours Circuit on two occasions, both involving Me use of raceconscious policies In the elementary and secondary level, has also explicitly declined to pass judgment on the continuing vitality of Bakke.39 There is a case pending in the United States District Court for the District of Maryland ~nvolving a constitutional challenge to Me race-conscious admissions program at Me 35 212 F.3d 738 (2n]
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From page 103... ...
The judge in the undergraduate case explicitly disagreed with the rationale in Hopwood, and concluded that the university had met its burden of demonstrating that the educational benefits flowing from a racially and ethnically diverse student body constitute a compelling interest justifying the use of race-conscious admissions practices. The judge further found that the current admission policy was narrowly tailored in that it did not use quotas, ensured individualized consideration, and allowed race to be used as a "plus" in the manner outlined by Justice Powell.4i Approximately three months later, the judge in the law school case reached the opposite conclusion.
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From page 104... ...
But unlike a set-aside or quota arrangement, it does not insulate the applicant from comparison with other candidates. Justice Powell acknowledged that this "plus" may mean that in certain circumstances, race tips the balance, "just as life spent on a farm may tip the balance in other candidates' cases."45 Extrapolating from Justice Powell's opinion and subsequent education cases, it is perhaps easier to identify what is not a narrowly tailored program.
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From page 105... ...
The Michigan law school case was similar to the undergraduate case, but in a sense there was even more individualized consideration given to the applications because the applicant pool is much smaller. Nonetheless, the district judge held that this program was not narrowly tailored.
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From page 106... ...
v. Pena is an affirmative action case in the federal contracting context in which the Supreme Court in 1995 applied strict scrutiny to federal contracting for the first time.46 The diversity rationale was not at issue in this case.
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From page 107... ...
In the meantime, many health professions schools are asking a simple but difficult question: can we put into place or continue to employ narrowly tailored, race-conscious admissions programs? For public health professions schools in Texas, Mississippi, and Louisiana, it is clear under Hopwood that race-conscious programs cannot be put into place unless the institution can demonstrate that the race-conscious program is necessary to remedy the present effects of past discrimination by the institution.
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From page 108... ...
The University of Michigan, in both the undergraduate and the law school cases, has mounted perhaps the most aggressive and comprehensive case supporting diversity in the history of higher education. Any health professions institution seeking to implement narrowly tailored, race-conscious programs using a diversity rationale should examine carefully the record that has been developed in the Michigan case.
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From page 109... ...
It is useful to examine other potential justifications for race-conscious programs that may rise to the level of a compelling interest. Specifically, health professions should explore the potential viability of what I call the "operational need" justification.
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From page 110... ...
E Consider Race-Neutral Alternatives That Can Increase Diversity There are a number of race-neutral interventions that health professions schools should consider as they seek to increase racial and ethnic diversity.
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From page 111... ...
As part of the self-assessment recommended above, it may be useful for health professions schools to determine the extent of current reliance on test scores, and consider the option of reduced or no reliance on such scores. For example, Texas A&M's medical school in 1998 dropped the use of the Medical College Admissions Test (MCAT)
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From page 112... ...
For example, the pre-Hopwood enrollment level at He University of Texas, Austin was 3.2 percent African American and 15 percent Latino. African Americans represented 12 percent of Texas high school graduates and Latinos represented 29 percent.59 These disparities prompted University of Texas Law Professor Gerald Torres, an architect of the Ten Percent Plan, to comment, "There is no reason for the pre-Hopwood number to be the baseline." The geographic mix of the students also changed dramatically as a result of He implementation of the Ten Percent Plan.
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From page 113... ...
F Aggressive Outreach, Mentoring, and Retention Many health professions schools have undertaken aggressive efforts to recruit underrepresented minorities, and these outreach efforts, while usually not a panacea in and of themselves, can be helpful in increasing the pool of underrepresented minorities.62 In performing the self-assessment described earlier, it would be useful to look at where recruitment efforts are focused.
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From page 114... ...
In addition, as the nation becomes more heterogeneous, and the health needs of underserved minority populations grow, it is important for health professions schools to respond to changing demographics and emerging needs. For instance, the Hmong population continues to grow in both Wisconsin and Minnesota.
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From page 115... ...
search for students with the most promise, and graduates will be less likely to possess the skills, experience, and wisdom necessary to work win and serve He diverse populations of the United States and the global community.63 The health professions can certainly put forth a similar case. CONCLUSION It has been almost a quarter century since the Supreme Court in Bakke last addressed the constitutionality of race-conscious admissions practices in the higher education context.
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From page 116... ...
In fact, colleges and universities in the vast majority of the states continue to maintain race-conscious admissions programs in reliance on Bakke. Given the conflicting and seemingly irreconcilable decisions issued by lower courts in recent years, it has become increasingly likely that the Supreme Court in the near future will revisit Bakke and determine once and for all whether diversity is a compelling interest justifying the use of narrowly tailored, race-conscious admissions practices in higher education.
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