Current Legal Status of Affirmative Action Programs in Higher Education
University of Maryland Law School1
In recent years, widespread attention has been focused on eliminating racial and ethnic disparities in health. During the Clinton-Gore administration, President Clinton and Donna Shalala, then Secretary of Health and Human Services, committed the nation to the ambitious yet reachable goal of eliminating racial and ethnic disparities by 2010 in six areas of health status while continuing the progress that has been made in improving the overall health of the American people. The six focus areas of the initiative are: 1) infant mortality; 2) cancer screening and management; 3) cardiovascular disease; 4) diabetes; 5) HIV infection/AIDS; and 6) immunizations. This initiative enjoys bipartisan support, and has been endorsed by current HHS Secretary Tommy Thompson.
When President Clinton announced this initiative in 1998, Surgeon General David Satcher assumed a lead role in coordinating efforts within the federal government and among stakeholders outside the federal government. A number of meetings and conferences were convened nationwide with various stakeholders in an effort to gain a better overall understanding of the root causes of these disparities and to identify solutions.
Through this dialogue, a number of proposals emerged for addressing disparities, including: 1) enhancing access to health insurance; 2) addressing numerous gaps in research; 3) educating and training culturally proficient health care practitioners; 4) educating and empowering health care consumers to navi-
gate the health care system more effectively; 5) ensuring aggressive enforcement of civil rights laws; 6) ensuring that health care providers can address the unique needs of expanding immigrant populations, many of whom have limited English skills; and 7) undertaking aggressive efforts to ensure that the health care profession reflects the growing diversity of the population.
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. This paper focuses on legal issues surrounding efforts taken by the health care profession to expand the racial and ethnic diversity of the profession by employing affirmative action tools. Part one outlines why this affirmative action issue is so important. Part two traces affirmative action in higher education, from the seminal Supreme Court case of Regents of the University of California v. Bakke to the present. Although many pundits have opined that affirmative action is dead in light of recent court pronouncements and voter initiatives in California and Washington, these declarations ignore a number of significant developments in courtrooms, voting booths, and legislatures.
The reality is that the affirmative action landscape is indeed muddled, but there are plenty of developments that both sides in the debate can point to in making their case. For either side in this debate to declare victory simply ignores the totality of the evidence, and Part two discusses the current affirmative action landscape, including events that have occurred outside the courtrooms. Part three discusses measures that the health professions can take or support to enhance diversity, including but not limited to affirmative action-related interventions. There are a number of useful measures that health professionals can put into place to increase diversity and better ensure that the health profession can meet the needs of our increasingly diverse population.
Affirmative action means different things to different people. For purposes of this paper, affirmative action refers to measures designed to increase the number of qualified minorities in a particular program through a decision making process that includes the consideration of race and ethnicity among a number of factors. Affirmative action does not mean creating or permitting quotas, or providing opportunities for unqualified people.
PART ONE: WHY IS DIVERSITY IN GENERAL AND AFFIRMATIVE ACTION IN PARTICULAR IMPORTANT TO THE HEALTH PROFESSION?
A number of trends and studies highlight the importance of the need to ensure a diverse health profession and the critical importance of affirmative action as a tool to enhance diversity. First, census data demonstrate that the nation as a whole has become even more diverse. Surging immigration is transforming both urban and rural America. For instance, between 1990 and 2000, Chicago’s population grew four percent, the first growth since 1950.3 This growth was fueled in large measure by a substantial infusion of Latino and Asian immigrants. In fact, factoring out the influx of Latinos and Asians, Chicago’s population decreased 4.4%. New York City’s population grew 9.4% from 1990 to 2000. Factoring out the influx of Latinos and Asians, the population increase in New York City was 0.2%.4 Population increases in Wisconsin and Iowa, states with large rural pockets, were also attributable in large measure to the influx of Latinos and Asians.5 In terms of percentage increases, Arkansas experienced the largest increase in immigrants of any state in the country.6 In short, immigration has fueled much of the population growth in both rural and urban areas across the country. The health care system must be in a position to respond to the often unique needs of immigrant populations, including but not limited to language needs.
At the same time minority populations are increasing, data from the American Association of Medical Colleges show a marked decline in the number African Americans and Latinos admitted to medical schools.7 In 1994, for instance, 1,384 African American and 1,150 Latino students were accepted to American medical colleges, according to AAMC data. In 2000, the figures declined to 1,168 and 1,082, respectively. For the first half of the 1990s, the admissions and enrollment figures for African Americans and Latinos were basically on the upswing. This trend reversed during the second half of the decade. These declines are troubling, especially when juxtaposed with the aforementioned increases in minority populations across the country.
The declines in African-American and Latino enrollment coincided with two significant events. First, in 1995, the United States Court of Appeals for the Fifth Circuit in Hopwood v. Texas, struck down as unconstitutional an affirmative 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 Missis-
sippi, from taking race or ethnicity into account in the admissions process. This case is discussed in greater detail in Part two.
At about the same time, the Regents of the University of California banned the use of race as a factor in admissions. California voters then passed Proposition 209 which, among other restrictions, prevents public higher education institutions in California from implementing programs that allow race or ethnicity to be considered as one factor in the admissions process. California and Texas are two of the principal pipelines for minorities entering the health professions, and these developments have contributed substantially to the decline in enrollment of African-American and Latino medical students from 1994 to 2000. This experience leaves little doubt that the elimination of affirmative action across the country would seriously hamper efforts to ensure the diversity of the health professions.
The significance of this downward trend in minority enrollment is further magnified by a host of studies showing that minority physicians are much more likely to practice in physician shortage areas and to serve minority populations than are non-minority physicians. For example, a number of studies conclude that African-American physicians are more likely to care for African Americans, and Latino physicians are more likely to care for Latino patients.8 Other studies have shown that African-American patients care for more patients covered by Medicaid, and Latino physicians care for higher proportions of uninsured patients than non-Latino white physicians. 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.
Yet, while the numbers of minorities are increasing substantially across the country, the pipeline of minority physicians is shrinking, even though minority physicians are more likely to practice in areas with higher concentrations of minorities. This confluence of forces raises serious concerns that the number of physician shortage areas will grow, and that access to health care for people of color will become even more difficult. Given these realities, the stakes in the affirmative action debate are indeed quite high.
PART TWO: AFFIRMATIVE ACTION IN HIGHER EDUCATION: DEVELOPMENTS IN THE COURTROOMS AND ELSEWHERE
A. What Is the Legal Standard, and What Does Bakke Hold?
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 decision.9 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.10
There is no disagreement, however, about the current constitutional standard in affirmative action cases. Courts must employ strict scrutiny when evaluating any racial classifications put into place by a state or other public entity.11 Thus, in order to justify the use of race or ethnicity in admissions, a state or other public entity (such as a public university) bears the burden of demonstrating that the use of race or ethnicity 1) served a compelling government interest, and 2) was narrowly tailored to the achievement of that goal.12 In other words, for a university seeking to justify the use of race as a factor in admission, the legal bar is high but not insurmountable.
The analysis of any admissions program that allows for the consideration of race or ethnicity thus begins with a discussion of the compelling government interest that the university is seeking to serve through the use of race-conscious practices. Historically, the two compelling interests that have been advanced
most frequently in the higher education context are 1) the so-called remedial rationale, and 2) the diversity rationale.
Proponents of a remedial rationale contend that the university has a compelling interest in remedying the present effects of past discrimination.13 Proponents of a diversity rationale contend that a university has a compelling interest in ensuring diversity in the classroom because all students enjoy a richer educational experience and develop greater tolerance and racial understanding. 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. The university operated a separate application program for minority applicants, with a separate committee that did not rate the minority applicants against the general applicants. A race-based quota was set for applicants under the special admissions program. Two of the stated justifications for this program were 1) countering the effects of societal discrimination, and 2) obtaining the benefits that flow from an ethnically diverse student body.
Allan Bakke, a white male, applied for admission and was rejected. He challenged the program on constitutional grounds and under Title VI of the Civil Rights Act of 1964. The Supreme Court of California upheld his claim, and enjoined the state from taking race into account in its admissions program.
The United States Supreme Court affirmed the judgment of the California Supreme Court, holding unconstitutional the particular program put into place by the medical school. There were a number of different opinions written in this case. A five-member majority of the U.S. Supreme Court explicitly reversed the portion of the California Supreme Court’s decision preventing the school from taking race into account in any fashion in its admissions process. This five-member majority further held that it did not violate the equal protection clause for the medical school—even in the absence of any proof of a remedial interest—to take race into account in its admissions process, as long as the program is “properly devised” and involves the “competitive consideration of race.”14 In other words, although the U.S. Supreme Court found the particular program in question unconstitutional, it explicitly stated that the school was not precluded from using race in the future, even if there was insufficient evidence of a remedial justification for the use of race-conscious admissions.
Justice Powell, who announced the judgement of the Court, rejected the remedial rationale put forth by the university, noting that “societal discrimination”
is an amorphous concept that is maybe “ageless in its reach into the past.”15 The remedial interest must be much more specific to withstand constitutional scrutiny.
Justice Powell’s discussion of the diversity rationale has been the portion of the opinion subject to the greatest debate. Justice Powell stated that obtaining the benefits that flow from a diverse student body may be a compelling interest justifying the use of a race-conscious admissions program. Justice Powell found that “an otherwise qualified student with a particular background—whether it be ethnic, geographic, culturally advantaged or disadvantaged—may bring to a professional school…experiences, outlooks and ideas that enrich the training of its student body and better equip its graduates.”16 Justice Powell specifically denounced separate or dual-track admissions programs, such as the program implemented by UC-Davis Medical School, noting that these programs focus solely on racial or ethnic diversity and would “hinder rather than further attainment of genuine diversity.”17
Justice Powell noted that a key to withstanding constitutional scrutiny is individualized consideration, where race is one of a host of factors under consideration, and the individual is considered with all other candidates for the available seats. He cited the undergraduate admissions policy of Harvard University, which considered race as a “plus” in the applicant’s file, but looked at other factors and weighed each candidate fairly and competitively. Justice Powell acknowledged that in some circumstances, an applicant’s race “may tip the balance in his favor” just as “geographic origin or life spent on a farm may tip the balance in other candidates’ favor.”18
The most critical and hotly debated question surrounding Bakke centers on Justice Powell’s pronouncements on the diversity rationale. Specifically, does this portion of the opinion command a majority of the Supreme Court? To put it slightly differently, has a majority of the U.S. 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.
Three things are clear about Bakke. First, a majority of the Supreme Court in Bakke held that it is permissible for a university to consider race in admissions, even without a history of discrimination by the university. Second, no subsequent Supreme Court decision has overturned this critical aspect of the ruling. In fact, the Supreme Court on two subsequent occasions has cited Bakke for the proposition that diversity may constitute a compelling interest in the
higher education context.19 Third, universities across the country have relied on Justice Powell’s opinion for almost a quarter century, and race-conscious admissions programs in higher education are commonplace. 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?
B. Significant Post-Bakke Developments
In the aftermath of Bakke, three of the most significant questions that courts have wrestled with are: 1) what are the precise contours of the remedial justification for affirmative action in higher education, 2) is the diversity rationale viable, and 3) what does a narrowly tailored affirmative action program look like?
1. Remedial Rationale for Race-Conscious Programs in Higher Education
It has become increasingly difficult in recent years to justify race-conscious practices as a means of remedying the effects of past discrimination. States certainly have an interest in remedying the effects of present or past discrimination. In fact, a state has a duty to eliminate every vestige of racial segregation and discrimination.21 In order to be deemed “compelling,” the interest must meet two conditions.
First, discrimination must be “identified” discrimination; that is, “they must identify that discrimination, public or private, with some specificity before they may use race-conscious relief.”22 For instance, a state does not have a compelling interest in remedying the present effects of past societal discrimination. Instead, there must be a showing of prior discrimination by the particular government unit involved before a court will permit the use of race-conscious remedies. Despite several Supreme Court opinions, the precise rules for determining how specific and localized the past discrimination must be before a government entity can employ race-conscious measures to remedy the effects of past discrimination remain unclear.
Second, there must be a strong evidentiary basis showing the present effects of past discrimination by the relevant entity, and that the effect is of sufficient magnitude to justify the program.23
In recent years, courts that have interpreted the remedial rationale have made it increasingly difficult to justify race-conscious decision-making on remedial grounds. Podberesky v. Kirwan is a case in point which involved the constitutionality of a scholarship program for African-American students established by the University of Maryland at College Park (UMCP).24 UMCP is the flagship campus of the Maryland higher education system, and was de jure segregated until the late 1950s and segregated as a matter of practice until the late 1970s. The scholarship program was part of the university’s plan to eliminate the lasting vestiges of its past discrimination against African Americans. An extensive record was generated regarding the past discrimination by the university, as well as the present-day effects.
The district court judge hearing the case noted that UMCP had made a strong showing of four present effects of past discrimination by the university: 1) UMCP has a poor reputation within the African-American community, particularly among parents and counselors who influence students choices; 2) African Americans are underrepresented in the UMCP student population; 3) African-American students at UMCP have low retention and graduation rates; and 4) the campus atmosphere is perceived as hostile to African-American students.
The district court ruled that the scholarships were constitutional because they were necessary to remedy the present effects of the university’s past discrimination. The Court of Appeals for the Fourth Circuit reversed and declared the program unconstitutional. In so doing, the appellate court rejected the reputation and hostile environment rationales outright. 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 the 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. The Supreme Court declined to hear the case.
Podberesky is significant in that the state mounted a vigorous defense of the scholarship program premised on the need to remedy the present effects of past discrimination by the state. In other cases discussed below, the state has not advanced the remedial argument. Despite the aggressive defense, the appellate court rejected the claim, and set a very high bar for establishing the remedial justification for race-conscious programs.
Hopwood v. University of Texas involved a constitutional challenge to the race-conscious admissions policy at the University of Texas Law School.25 The university put forth both a remedial and a diversity justification for taking race into account in its admissions. The court rejected both rationales. Regarding the remedial rationale, the university put forth present-day effects of past discrimination that were quite similar to those outlined above in Podberesky. The Fifth Circuit rejected these justifications as well.
Most recently, plaintiffs have challenged the undergraduate and law school admissions programs at the University of Michigan.26 In both cases, the university 1) acknowledged that race was one of a number of factors that it took into account in admissions; 2) claimed that diversity was the compelling interest justifying the use of a race-conscious admissions process; and 3) did not advance a remedial justification for the use of race. Similarly, in both cases, outside groups were permitted to intervene in the case to defend the use of a race-conscious admissions process, and these groups advanced both the remedial and diversity arguments. In both cases, the district court rejected the claim that the race-conscious admissions program could be justified under a remedial rationale, concluding that the defendant interveners had not met the aforementioned burden.
Johnson v. Board of Regents of Georgia involved a challenge to the race-conscious admissions policy at the University of Georgia. The district court in this case rejected the remedial rationale put forth in an effort to justify the use of a race-conscious undergraduate admissions program.27
In light of the consistent court rejection of the remedial rationale, proponents of affirmative action in higher education have focused the bulk of their efforts on the diversity rationale, attempting to establish once and for all that Bakke remains good law and that race-conscious programs are legal.
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 that diversity is a compelling interest that justifies the use of narrowly tailored, race-conscious admissions programs. A number of lower courts have addressed this question. The Hopwood decision in the Fifth Circuit has garnered the most attention. In that case, the court struck down the race-conscious admissions program at the University of Texas law school, and ruled that diversity is not a compelling interest justifying the use of race-conscious admissions practices. The court concluded that Bakke does not
stand for the proposition that race can be a compelling interest. The court stated: “there has been no indication from the Supreme Court, other than Justice Powell’s lonely opinion in Bakke, that the state’s interest in diversity constitutes a compelling justification for governmental race-based discrimination.”28 The panel effectively pronounced Bakke dead.
Hopwood remains applicable law in the Fifth Circuit, meaning that public universities in Texas, Mississippi, and Louisiana are prohibited from taking race into account in admissions.29 Coupled with Proposition 209 in California and a voter referendum in Washington State, the ability of public universities in these five states to employ race-conscious admissions programs is quite curtailed. However, the notion put forth by some that affirmative action is now dead across the country is empirically inaccurate. One author has written a lengthy article on affirmative action in employment in which he discusses, among other things, how legal scholarship and the popular press in the post-Hopwood era have inaccurately portrayed affirmative action as dead or almost dead.30 In fact, the current affirmative action landscape in higher education is quite unsettled, but by no means dead.
The Fifth Circuit is the only appellate court that has rejected diversity as a compelling interest in the higher education context. A federal district judge in Georgia adopted the Hopwood rationale in striking down a race-conscious admissions program at the University of Georgia.31 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 the use of narrowly tailored, race-conscious admissions programs.33 The court explicitly noted that Bakke remains good law and stands for the proposition that diversity can be a compelling interest in the higher education context. The court further noted that the Supreme Court has not returned to the area of university admissions since Bakke, and “has not indicated that Justice Powell’s decision has lost its vitality.”34
78 F.3d at 944.
Following a remand, the Fifth Circuit vacated a portion of the original holding, but the critical holding discussed above remains intact. 236 F.3d 256 (5th Cir. 2000). Recently, the Supreme Court again declined to hear the case. 121 S.Ct. 2550 (2001).
Day, J. 2001. Retelling the Story of Affirmative Action: Reflections on a Decade of Federal Jurisprudence in the Public Workplace. California Law Review, 89:59.
106 F.Supp. 2d 1362 (S.D. Ga. 2000).
For a listing of these briefs, see www.usdoj.gov/crt.
Smith v. University of Washington Law School, 233 F.3d 1188 (9th Cir. 2000). cert. denied. 121 S.Ct. 2192 (2001).
Id. at 1200.
The Second Circuit, in Brewer v. West Irondequoit Cent. School District, held that reducing racial isolation was a compelling interest justifying the implementation of a race-conscious voluntary interdistrict transfer program in the Rochester, New York-area public school systems.35 Under the program at issue, minority students were permitted to transfer from schools in the city to schools in the suburbs, and non-minority students were permitted to transfer to city schools from suburban schools. While the case did not involve the higher education context, the discussion of the compelling interest is instructive. The purposes of the program articulated by the school authorities were: “1) preparing students to function in an adult society, in which they will encounter and interact with people from many different backgrounds, 2) making students more tolerant and understanding of others throughout their lives, and 3) eliminating de facto segregation.”36 The court ruled that reducing racial isolation resulting from de facto segregation can constitute a compelling government interest justifying racial classifications.
Although the district court relied on Hopwood in striking down the program, the appellate court explicitly declined to follow Hopwood, and expressed concern as to whether Hopwood is good law. The diversity interest in the higher education context is quite similar to the rationale of reducing racial isolation in the elementary and secondary school context. As a result, Brewer is instructive and provides support to proponents of the diversity rationale in the higher education context.
The First Circuit, in Wessman v. Gittens, discussed efforts to portray the diversity rationale dead, noting: “We think that any such consensus [that diversity is dead] is more apparent than real.”37Wessman was not a higher education case, but, rather, involved race-conscious admissions practices at three Boston public schools. The court explicitly declined to declare one way or the other that Bakke’s diversity rationale remains good law. Instead, the court noted that “we assume arguendo—but we do not decide that some iterations of diversity might be sufficiently compelling in specific circumstances, to justify race-conscious actions.”38 The Fourth Circuit on two occasions, both involving the use of race-conscious 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 involving a constitutional challenge to the race-conscious admissions program at the
University of Maryland Medical School.40 No dispositive ruling has been issued in this case.
The uncertain status of the diversity rationale is perhaps best illustrated by comparing the two pending Michigan higher education cases that involve the law school and the undergraduate university. Both suits allege that the university’s race-conscious admissions programs are unconstitutional. In both cases, the university acknowledged the use of race-conscious programs, noting that race is one of a host of factors (e.g., geography, socioeconomic status, alumni status, quality of high school, and quality of high school courses) taken into account in an individualized decision making process.
The university contended that both programs were constitutional under the diversity rationale set forth in Bakke. The university developed an extensive record of social science, demographic, and other testimony to support the diversity rationale. For instance, experts testified about the educational benefits of diversity, noting studies demonstrating that students who experienced the most diversity in classroom settings and in other less formal interactions had the most productive learning experiences. These benefits affect minority and nonminority students alike.
In the undergraduate case, the district court ruled that Bakke was controlling and stood for the proposition that diversity is a compelling interest justifying the use of a race-conscious remedy. 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.41
Approximately three months later, the judge in the law school case reached the opposite conclusion. He ruled that diversity is not a compelling state interest and was not recognized as such by a majority of the Supreme Court in Bakke. He further ruled that even if diversity was recognized as a compelling state interest, the program is unconstitutional because it is not narrowly tailored and also violates Title VI. The judge found that the law school’s current admissions policy was “practically indistinguishable from a quota system.”42 The judge enjoined the law school from taking race into account in its admissions process, effective immediately. The U.S. Court of Appeals for the Sixth Circuit shortly thereafter issued a stay of this injunction pending the appeal, noting that the district court’s
reading of Bakke “diverges from other interpretations of the case including that in [the Michigan undergraduate case] currently pending on appeal.”43
The two district court opinions are irreconcilable, and will have to be resolved by the Sixth Circuit and, perhaps ultimately, by the Supreme Court. It is impossible to predict the outcome of the Michigan or other cases, but contrary to popular belief, there is substantial case support for the proposition that diversity is a compelling interest in the higher education context.
3. Narrow Tailoring
Even if the Supreme Court ultimately decides that diversity is a compelling interest justifying the use of race-conscious programs, this is only half the battle. A university must also show that its program is narrowly tailored. In fashioning a narrowly tailored program within the context of higher education, it is useful to begin with Justice Powell’s analysis in Bakke.
Justice Powell made reference to the so-called “Harvard Plan” as a program that would withstand constitutional scrutiny.44 Rather than using racial setasides, setting quotas, or considering the application of underrepresented minority students separately, the Harvard Plan considers all applicants in one pool. Each applicant is compared with all other candidates, and there is individualized consideration of each candidate. Equally important, a narrowly tailored plan allows for consideration of race and ethnicity, as well as a host of other factors, such as socioeconomic status, geography, a history of overcoming disadvantage, or alumni status, even if not all factors are accorded the same weight. Race in this setting is a plus, just as geography or some other characteristic. 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. Bakke itself involved a racial set-aside for underrepresented minorities, so that these applicants were not considered with the entire pool. The program at issue in Hopwood involved African Americans and Mexican Americans being treated differently from all other applicants. The applications were put into separate stacks. The ranges that were used to place them into the three admissions categories (presumptive admit, presumptive reject, discretionary zone) were different, and a separate minority committee reviewed the applications of African Ameri-
cans and Mexican Americans who were in the discretionary zone. Separate processes with different standards will not withstand the narrow tailoring test.
The program at issue in the University of Michigan undergraduate case involved the assignment of numerical points for various factors, such as grades, test scores, curriculum, quality of school, geography, race or ethnicity, outstanding essay, socioeconomic status, unique ability (such as an athlete or a musician), and alumni status. The school used a 150-point system and, in any given case, any one of the aforementioned factors could tip the balance in an applicant’s favor. All applicants are considered in one pool, and there is no set-aside for underrepresented minorities and no quota. In 1999 and 2000, a system was added whereby certain applicants, including but not limited to underrepresented minorities, could be “flagged,” which meant that they were kept in the review pool, but were not given additional points. The district court ruled that this program met the narrow tailoring standard set forth in Bakke.
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. He found “amorphous” the law school’s contention that it uses race to the extent necessary to achieve a critical mass of underrepresented minorities. Although the law school did not set a numerical goal, the district judge, as noted earlier, found the program “practically indistinguishable” from a quota system.
Looking at these two cases, as well as other cases in similar contexts, it is quite difficult to say with certainty what will constitute a narrowly tailored program. However, programs that have been deemed narrowly tailored at a minimum tend to have the following characteristics:
Exploration of race-neutral alternatives—At a minimum, a university should seriously explore whether there are race-neutral alternatives to achieving the same end of a diverse student body. In the Michigan undergraduate case, for instance, the university put forth testimony about prior futile efforts to expand diversity through aggressive outreach and recruitment. The university also presented expert testimony discussing the likely effects that prohibiting the consideration of race and ethnicity would have on the enrollment of underrepresented minorities. It is not necessary that a university implement race-neutral alternatives before moving to race-conscious measures.
No quotas or set asides—All applicants must be considered in one pool. To the extent that there is a separate process, or separate standards for underrepresented minorities, or quotas for minority candidates, the program in all likelihood will not withstand narrow tailoring under the diversity rationale.
Race or ethnicity as one of a number of factors—Race should be one of a wide panoply of factors taken into account, and there should be individualized consideration of all applicants.
4. Other Recent Activity in the Affirmative Action Context
Those claiming that affirmative action is dead ignore not only the aforementioned case law but also other significant additional developments both within and outside the courtroom. For instance, Adarand Constructors, Inc. 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. Many experts believed that Adarand would become another nail in the affirmative action coffin, and that strict scrutiny would prove “fatal in fact,” meaning that the new legal hurdle would be insurmountable in practice. To the contrary, the Adarand case itself was remanded to the lower court to determine whether the program could withstand strict scrutiny. Last year, the U.S. Court of Appeals for the Tenth Circuit ruled that the program satisfied strict scrutiny, and was constitutional.47 The Supreme Court has agreed to hear this case again during the upcoming 2001–2002 term.
On a slightly different front, an author recently conducted a survey of constitutional challenges to 49 remedial workplace affirmative action plans.48 These plans arose out of employment disputes wherein race-conscious practices were put into place to remedy the present effects of past discrimination. Approximately 40 percent of the plans withstood strict scrutiny, leading the author to conclude that 1) carefully crafted affirmative action plans can and do withstand strict scrutiny, and 2) commentators’ depiction of affirmative action as dead is at odds with the empirical evidence.
On Capitol Hill, efforts to eliminate affirmative action have been defeated. For instance, in the United States Senate, a bipartisan majority in 1998 soundly defeated (58–37) a proposal to ban the use of affirmative action in federal contracting. Around the same time, the House of Representatives, by a bipartisan vote of 249–171, defeated a proposal to prohibit the receipt of federal funds by any public higher education institution that has affirmative action programs in place. Voter referenda in California and Washington have dealt serious blows to efforts by public entities, including public universities, to put race-conscious programs in place. Voters in Houston, Texas, however, defeated a similar measure that would have banned the use of affirmative action in city contracting.
Overall, proponents and opponents of affirmative action outside the higher education context have both scored major victories in recent years.
C. What Does All This Mean?
The upshot of the above analysis is that the future of affirmative action in higher education appears to hinge in large measure on whether the Supreme Court will declare once and for all that diversity is a compelling state interest justifying the use of narrowly tailored, race-conscious practices. 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. As noted earlier, although a state has a duty to eliminate every vestige of racial segregation and discrimination in education, establishing the remedial justification in the higher education context has proven in practice to be exceedingly difficult. The Fifth Circuit decision in Hopwood was based on the Constitution, which raises the issue of whether it applies to private institutions. As noted earlier, private universities who receive federal financial assistance are subject to the anti-discrimination provisions of Title VI. In the affirmative action higher education context, the applicable standards under Title VI and the Fourteenth Amendment are co-extensive. The upshot is that private universities in the Fifth Circuit that receive federal financial assistance and have race-conscious admissions programs in place are vulnerable under Title VI.
Public universities in states such as California, Washington, and Florida, where the use of race-conscious remedies has been limited by voter referenda or action of state officials, are also prohibited from employing race-conscious admissions and related programs, although private universities in these states do not face the same limitation. A federal court in Georgia has struck down the race-conscious admissions program at the University of Georgia, and that case is on appeal. The district court order in the Michigan law school case has been stayed pending appeal, so that the law school can continue to employ its race-conscious admissions program. Health professions schools in the remainder of the country can implement, or continue to implement, race-conscious programs. Given the conflicting interpretations of what Bakke means, it is becoming increasingly likely that the Supreme Court will have to confront this question in the near future.
PART THREE: WHAT THE HEALTH PROFESSIONS CAN DO TO ASSIST IN THE EFFORT TO ENHANCE DIVERSITY IN THE HEALTH PROFESSIONS
There are a host of measures that the health professions can put into place to address the critical need for a diverse health profession, and the American Association of Medical Colleges has led the effort to ensure that enhancing diversity remains a top priority. This section outlines various measures, many of which have already been implemented, to enhance diversity.
A. Build the Case for Diversity as a Compelling Interest
Most, if not all, of the current legal marbles are in the diversity basket. As a result, it is extremely important to develop an extensive record supporting the benefits of diversity. Conclusory statements of university officials are not enough. 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. The university presented social science research documenting the educational benefits of diversity—how the educational experience for students of all races is enriched by having a racially and ethnically diverse class. Additional evidence was presented about the history of segregation in Detroit. One effect of this sad legacy of segregation is that substantial numbers of incoming students at Michigan have had little or no contact with people of different races.49 This lack of prior contact with people of different backgrounds increases the importance of ensuring diversity in the classroom.
The health professions, foundations, and others can support further research documenting the educational benefits of having a diverse student body. For example, it would be useful to test the hypothesis that a diverse class contributes to the development of a more culturally competent health care profession. For many, the notion that racial and ethnic diversity is critical and compelling is axiomatic; however, it is necessary to build the case using a wide range of data, and institutions should not wait until a lawsuit is filed to compile the information.
B. Examine Whether a Remedial Justification Exists for Race-Conscious Practices
Although it has become considerably more difficult recently in the higher education context to put forth a remedial justification for race-conscious prac-
tices, this does not mean that institutions should ignore this interest. It is important and, admittedly, difficult for institutions to examine whether they bear any responsibility for the vestiges of segregation and discrimination in education. Such a review is critical. Even the court in Hopwood acknowledged that race-conscious practices can be used to eliminate the present effects of past discrimination. Thus, institutions should examine the extent to which they were participants, active or passive, in discriminatory practices that continue to have present-day effects.
C. Explore New Compelling Interests That May Justify Race-Conscious Practices
In the affirmative action debate, the compelling interest discussion has focused almost exclusively on the remedial and diversity justifications. 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. In Bakke, one of the justifications put forth by the state to justify its admission program was the need to increase the number of physicians who will practice in communities currently underserved. In this context, Justice Powell acknowledged “that in some situations a state’s interest in facilitating the health care of its citizens is sufficiently compelling to support the use of a [race-conscious] classification.”50 In other words, Justice Powell did not reject this interest out of hand, although he did find that the state had not presented sufficient evidence to support this claim.
In the almost quarter century since Bakke, a growing body of research indicates that minority physicians are much more likely to practice in areas with fewer primary care physicians per capita and in poorer areas as compared with white physicians.51 African-American physicians are also more likely to serve African-American patients, and Latino physicians are more likely to serve Latino patients, according to a number of studies.52
As discussed earlier, the recent census data confirms that America has become an even greater melting pot. Communities across the country must address how to ensure that vulnerable populations, which are increasing in numbers in both rural and urban America, can access critical health care. The emerging body of research that minority physicians are more likely to serve poor and/or minority
populations, coupled with the substantial growth in minority populations, potentially supports the proposition that 1) a state has a compelling interest in ensuring access to health for the entire community; and 2) narrowly tailored, race-conscious admissions practices will further that compelling interest. More research must be done before a conclusive determination can be made as to whether the evidence supports the hypothesis. However, it is an issue well worth exploring.
Courts have recognized operational need as a compelling interest in the context of police and corrections.53 In so doing, courts have permitted race-conscious hiring practices. A rationale underlying these decisions is that in racially and ethnically diverse communities, maintaining a diverse police force or corrections department is critically important to carrying out the core mission of the department. In light of demographic trends and research discussed earlier regarding practice trends of minority physicians, the health professions should examine whether a similar argument can be made in the health context.
D. Conduct Self Assessments
For almost a quarter century, higher education institutions across the country have relied on Justice Powell’s opinion in Bakke and have put into place race-conscious programs. It is very useful for institutions to examine these programs to ensure that they take race and ethnicity into account in a manner that would withstand judicial scrutiny. Institutions should not wait to be sued before conducting a self assessment in which they ask a host of questions, including but not limited to 1) what is the compelling interest(s) justifying the use of race-conscious programs; 2) what evidence has been marshaled to support the compelling interest(s); 3) are all applicants considered in one pool by the same committee; 4) is race one of a host of factors taken into account; 5) does the program ensure that there are no quotas or set-asides for minority applicants; 6) have race-neutral interventions been considered and/or implemented and, if so, has their success been measured, and 7) is a mechanism in place for periodic review of the program? This is by no means an exhaustive list of questions, but it would be useful for institutions that have race-conscious programs currently in place to review them. While such a self-assessment does not guarantee that litigation can be avoided, it will assist in placing an institution in the best posture to defend against potential litigation.
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.
1. Reduced Reliance on Test Scores
A number of experts have questioned the efficacy of relying on test scores in making admissions decisions.54 They argue that the SAT and other similar tests predict no more than performance during the first year of school, and are more related to the student’s family income than they are to success in school. For example, Richard Atkinson, President of the University of California system, recently proposed dropping the requirement that applicants take the SAT, the most widely used college entrance exam. In his opinion, the SAT is “distorting educational priorities” and he proposed replacing it with a less quantitative, more holistic set of criteria.55
This is not the first time that reliance on test scores has been called into question, but it has added energy to the debate about the role of test scores in the admissions process. Heavy reliance on test scores in the admissions process has an adverse impact on underrepresented minorities, as well as poor people of all races. As a result, many higher education institutions have begun to examine whether to reduce or eliminate reliance on standardized tests in the admissions process. 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) for students who successfully completed special undergraduate premedical programs.56
2. Class-Conscious, Rather than Race-Conscious Affirmative Action
For years, a number of commentators have called for replacing race-conscious programs with class-conscious measures.57 These commentators contend that race-conscious affirmative action is simultaneously over- and underinclusive, while class-conscious affirmative action, which would capture people from economically disadvantaged backgrounds—minority and non-minority alike—is more fair and would promote diversity.
Many universities employ both race-conscious and class-conscious measures. The University of Michigan undergraduate admissions process provides a “plus” for applicants who are economically disadvantaged, as well as for applicants who are underrepresented minorities. The university presented expert testi-
mony that eliminating race as a factor in the admissions process would result in a substantial reduction in the number of underrepresented minorities in the class. While strongly supporting the use of economic disadvantage as one way to promote viewpoint diversity and thereby enhance the educational experience for all, the University of Michigan and others have raised serious concerns about the overall efficacy of eliminating race as a factor in the admissions process.
3. “Ten Percent” and Other Similar Measures
Following the Hopwood decision, enrollment of African-Americans and Latinos in the University of Texas higher education system plummeted. In response, Texas adopted the so-called “10 percent solution,” which guarantees a seat at the flagship Texas public colleges and universities to all students from all high schools in the state who graduate in the top 10 percent of their class.58 Proponents of the plan argued that past success, and not test scores, was the best predictor of future success.
Since adoption of this plan, enrollment of African Americans and Latinos at the two flagship undergraduate universities—University of Texas, Austin and Texas A&M—increased. Enrollment of African Americans and Latinos at University of Texas, Austin returned to the pre-Hopwood level by the second year, while enrollment at Texas A&M increased, although not to the pre-Hopwood levels. Moreover, the pre-Hopwood levels were far lower than the actual percentages of African Americans and Latinos graduating from Texas high schools. For example, the pre-Hopwood enrollment level at the 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 the implementation of the Ten Percent Plan. Previously, out of 1,500 public high schools statewide, 50 to 75 schools were providing 90 percent of the students admitted to University of Texas, Austin. These high schools lacked racial, geographic, and economic diversity. Given the Texas program’s success in raising minority enrollment, California and Florida have implemented programs modeled after the Texas plan.
Many supporters of the Texas plan, including a number of architects of the plan itself, caution that it should not be interpreted as a substitute for race-conscious affirmative action. For people such as Professor Gerald Torres of the
University of Texas Law School, the plan was the only alternative in a state where race-conscious policies were foreclosed.
A number of concerns have been raised about the Ten Percent Plan and similar efforts elsewhere.60 It has no application to graduate programs, which is of obvious relevance to the health professions.61 Critics note that its success in increasing enrollment of underrepresented minorities depends largely upon the maintenance of a segregated system of public education. In addition, it penalizes students at the state’s more demanding high schools who may not be in the top 10 percent, and it sets up for potential failure students from other schools who may be unable to handle the rigors of academics in selective institutions of higher learning. As a result, undergraduate institutions such as Michigan have considered and rejected such proposals as inadequate substitutes for the current race-conscious admissions process.
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. For instance, have meaningful connections been established with historically black colleges and universities, as well as with other institutions that have sizeable minority enrollments? What connections are being made with the pipeline of elementary and secondary students? Are mentoring programs in place to provide role models to high school and college students who may be considering a career in the health professions? In addition to recruitment, it is important to have retention programs in place that will provide the necessary nurturing and guidance for students who are enrolled.
Pipeline programs are a critical intervention that, in the long term, can lead to the expansion of the overall pool of underrepresented minorities seeking to enter the health profession. For those institutions that participate in or fund such programs, it is important to be mindful of the need not to limit participation by race or ethnicity. Public institutions, as well as private institutions that receive federal dollars, are vulnerable to legal challenge under the Constitution and/or Title VI of the Civil Rights Act of 1964 if they limit enrollment by race or eth-
nicity. An alternative approach would be to target social and economically disadvantaged students for participation in the program. This race-neutral approach has been employed with some success in a number of contexts.
G. Revise AAMC Definition of Underrepresented Minority
The AAMC currently defines underrepresented minority as African American, Native American, Mexican American, and non-Mainland Puerto Rican. Many institutions follow the lead of the AAMC in defining under-represented minority this way. AAMC programs targeted to underrepresented minorities frequently limit eligibility to African Americans, Native Americans, Mexican Americans, and non-Mainland Puerto Ricans. This definition appears to reflect an effort to capture minority groups that historically had been victims of discrimination in America. If the remedial rationale were the only compelling interest justifying the use of race-conscious practices, then the definition perhaps would remain more viable.
However, the diversity rationale embodies a different construct, namely that the educational experience for all students is enhanced when there are people from different geographic areas; people from low-income, middle-class and wealthy backgrounds; and people of different races and ethnicities. Under the diversity logic, the current AAMC definition of underrepresented minority is unduly narrow. 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. As a result, a health professions school in these states may conclude that it is important to recruit from within the Hmong community, so that an applicant of Hmong descent may receive a “plus” in a Bakke-type plan that used race as one of a number of factors in the decisionmaking process. The AAMC definition does not prevent a school from considering taking a person’s Hmong origin into account, but it does not acknowledge the value of doing so. In addition, a Hmong American, or a Dominican American from New York City would be ineligible to apply for AAMC programs that are limited to underrepresented minorities, because the current definition excludes them. A broader definition of underrepresented minority would reflect the changing demographic landscape, as well the educational underpinnings of the diversity rationale.
H. Participate in Public Education Campaigns About Affirmative Action and the Benefits of Diversity in the Health Professions
The debate about the efficacy and legality of race-conscious practices in education and elsewhere is being conducted both within the courtroom and within the
court of public opinion. The bulk of this paper has focused on what is taking place within the courtrooms. However, a considerable amount of activity is occurring elsewhere. Opponents of race-conscious practices mounted successful campaigns in California and Washington that resulted in the passage of voter referenda that, among other things, prohibited the use of race as a factor in admissions in public universities. Voters in Houston, Texas, in 1997 defeated a similar initiative that would have banned the use of race in government contracting.
From these and other experiences, educators who support affirmative action are beginning to appreciate the importance of demystifying the admissions process in higher education for the public at large. This is premised on the belief that affirmative action means different things to different people. Once citizens understand what it really means in practice, they are more likely to be supportive of race-conscious practices.
Thus, for example, opponents of affirmative action at the University of Michigan frequently refer to this and race-conscious admissions programs as “race-based” programs or “racial preferences.” Proponents of affirmative action point out that the use of these imprecise terms ignores the fact that race is one of a number of factors taken into account. The programs are seldom, if ever, referred to as “geography-based” or “legacy-based,” even though geography or alumni status of family members are also factors taken into account at Michigan, and, like race, may tip the balance in a given case. Educating the public about what affirmative action actually means in practice, what affirmative action is not, and why narrowly tailored, race-conscious programs are important is crucial to maintaining public support for race-conscious programs.
Enlisting the business community in building a business case for diversity in the health professions can also be useful. In the Michigan undergraduate case, for instance, a number of Fortune 500 companies filed an amicus brief supporting the Michigan admissions program, and its use of race as a matter of business necessity. These companies argued that if universities were not permitted to consider all qualities of each applicant, including race or ethnicity, universities will be “hampered in [the] search for students with the most promise, and graduates will be less likely to possess the skills, experience, and wisdom necessary to work with and serve the diverse populations of the United States and the global community.63 The health professions can certainly put forth a similar case.
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. For many, Bakke is to higher education what Miranda is to criminal justice and Roe v. Wade is to reproductive freedom. It has become
part of the American fabric in the sense that institutions and individuals have placed considerable reliance upon Bakke in crafting important policies and practices. Like Miranda and Roe, Bakke continues to be the focus of widespread attention, as courts, legal experts, politicians, practitioners, and the public at large debate its meaning and continued vitality. Like Miranda and Roe, Bakke generates passion on both sides of the debate that is seldom paralleled elsewhere.
Many have attempted to paint race-conscious programs in higher education as dead, citing primarily Hopwood and Proposition 209 in California. While those two events were certainly noteworthy, the totality of the evidence reveals a quite mixed scorecard on affirmative action in higher education. Those describing affirmative action as dead are simply ignoring significant developments to the contrary. 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. In 2001, the Supreme Court has declined to hear two higher education affirmative action cases (Hopwood and Smith v. University of Washington). Nonetheless, as the Michigan and other cases weave their way through the appellate process, it will become more difficult for the court to avoid the issue.
In the meantime, there is a considerable amount that the health professions can do to assist in the effort to promote their own diversity. Successful implementation of measures to enhance diversity will contribute substantially to the overall effort to eliminate racial and ethnic disparities in health.