Abstract
Excerpted From: Asees Bhasin and Gregory Curfman, Gutting Grutter: the Effect of the Loss of Affirmative Action on Diversity among Physicians , 20 Indiana Health Law Review 1 (2023) (147 Footnotes) (Full Document)
In 1978, a polarizing question appeared before the Supreme Court in Regents of the University of California v. Bakke--are universities permitted to consider race as a factor in admissions? Justice Powell's controlling opinion found that it could be constitutionally permissible if serving the compelling interest of promoting diversity in higher education. Since this decision, over the last four decades, race-conscious admissions policies have been the subject of social, political, and judicial controversy, and have raised questions about the scope of the Fourteenth Amendment. The admissions policies have also been criticized as sanctions of “reverse-discrimination,” a claim recently made by Asian-American students in relation to the Students for Fair Admissions v. President & Fellows of Harvard College.
On January 24, 2022, the Supreme Court agreed to hear challenges to affirmative action policies in college admissions at Harvard University and at the University of North Carolina (“UNC”). The cases are Students for Fair Admissions v. President & Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina were argued on October 31, 2022. Students for Fair Admissions (“SFFA”) is an organization led by Edward Blum, a conservative activist who also initiated the litigation in Shelby County v. Holder and Fisher v. University of Texas II. While the Court has repeatedly upheld admissions programs similar to the ones being challenged in this lawsuit (as recently as 2016), these cases may come out differently due to the conservative supermajority of Justices that will be hearing these cases.
This Article will discuss the potential impact of these cases on affirmative action policies of universities and will examine how this may affect the practice of medicine. Part I will provide a brief overview of affirmative action jurisprudence to situate this case within a long history of affirmative action litigation. Part II will discuss the two cases being litigated by SFFA. Part III will expand upon the importance of diversity in the medical workforce and describe how affirmative action policies promote diversity among physicians. Part IV will discuss the possible outcomes of this litigation and what the path forward looks like if the Court decides to prohibit race as a consideration in higher education.
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This Article has aimed to provide an overview of the litigation led by Students for Fair Admissions against Harvard College and the University of North Carolina, and to situate it within four decades of litigation around affirmative action. It also discussed the “diversity rationale” and why diversity is important, particularly in the medical workforce. As we await a final decision in the SFFA cases, this Article provides context on why affirmative action is once again before the Court and how the Court's opinion might be influenced by provocative matters of law and policy.
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Asees Bhasin, Law & Policy Fellow for the Evidence Equity Project at the Center for Antiracist Research, formerly the Senior Research Fellow at the Solomon Center for Health Law and Policy - Yale Law School.
Gregory Curfman, Deputy Editor of JAMA, Senior Advisor, and Physician Scholar in Residence for the Solomon Center for Health Law and Policy at Yale Law School.
