Become a Patron


Thomas E. Perez

excerpted from: Thomas E. Perez, Enhancing Access to Health Care and Eliminating Racial and Ethnic Disparities in Health Status: a Compelling Case for Health Professions Schools to Implement Race-conscious Admissions Policies, 9 Journal of Health Care Law and Policy 77, 88-104 (2006) (154 Footnotes).

A. Setting the Stage for Judicial Recognition of the “Health Care Access” Rationale for Race-Conscious Admissions and Recruitment Practices

      In the more than twenty-five years since the Bakke decision, courts and commentators have focused almost exclusively on Justice Powell's articulation of the diversity rationale and his discussion of the contours of a narrowly tailored admissions policy. Virtually no attention has been given to another rationale that the state articulated to support the policy at issue in Bakke. The Court noted in Bakke that one rationale articulated by the university to support its program was “increasing the number of physicians who will practice in communities currently underserved ....”

       The Court's discussion of this rationale was quite brief, but very instructive: Petitioner identifies, as another purpose of its program, improving the delivery of health-care services to communities currently underserved. It may be assumed 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 suspect classification. But there is virtually no evidence in the record indicating that petitioner's special admissions program is either needed or geared to promote that goal ....
       Petitioner simply has not carried its burden of demonstrating that it must prefer members of particular ethnic groups over all other individuals in order to promote better health-care delivery to deprived citizens. *89 Indeed; petitioner has not shown that its preferential classification is likely to have any significant effect on the problem.

      The Court did not dismiss this rationale out of hand. In fact, the Court noted that “in some situations,” a state's interest in increasing access to health care in underserved communities “is sufficiently compelling to support the use of a suspect classification.” The Court dismissed this rationale because there was a failure of empirical proof of a relationship between this goal and a special admissions program for certain minority students.

      In the twenty-seven years since Bakke, a wealth of empirical data has emerged, demonstrating that increasing racial and ethnic diversity in the health professions will increase access to health care in underserved, minority communities and will increase access to health care for people with lower income and worse health status. Given the mountain of evidence documenting racial and ethnic disparities in health status, and the difficulties that minorities and low income populations have accessing health care, government in general and health professions schools in particular have a compelling need to identify and implement programs that will reduce disparities and increase access for communities of color. Race-conscious admissions programs will increase the number of minority health professionals, and this can reduce access gaps in minority communities.

      The bulk of the empirical data is in the physician context. This data shows that minority physicians are:

       • More likely to be in the primary care field;
       • More likely to work in health care physician shortage areas;
       • More likely to serve communities of color; and
       • More likely to serve Medicaid patients.

B. Primary Care Focus

      Increasing access to primary care services has been frequently cited as an important component of an overall strategy to eliminate racial and ethnic disparities in health status. Access to primary care services is the proverbial “ounce of prevention” that all too frequently is lacking in poor, underserved, and minority communities. The need for additional primary care physicians is a *90 chronic problem in many pockets across America. The absence of a sufficient number of primary care physicians means that scores of people do not have a regular source of health care and do not receive critical preventive health care. The challenge is most acute in minority communities. For instance, one study focusing on California documented that non-Latino whites have the highest percentage of generalist physicians per 100,000 people. Non-Latino whites have ninety generalist physicians per 100,000, whereas Latino, African American, and Asian residents have 52, 61, and 68, respectively.

      Studies demonstrate that minority physicians are substantially more likely to choose a primary care practice specialty than non-minorities. For instance, data from the Association of American Medical Colleges (AAMC) regarding practice patterns of minority graduates of American medical schools indicated that African American, Latino, Native American, and Asian medical school graduates were significantly more likely to be practicing primary care medicine than non-minority medical school graduates.

      Another team of researchers, led by Dr. Raynard Kington, who is now Deputy Director of the National Institutes of Health, reviewed the literature in this area and concluded:

       Strong, compelling evidence suggests that minority physicians are indeed more likely to provide precisely those services that may be most likely to reduce racial and ethnic health disparities, namely primary care services for underserved poor and minority populations. It is the opinion of the authors that the strength of that evidence alone is sufficient to support continued efforts to increase the numbers of physicians from underrepresented minority groups.

      Given the chronic shortages of health  care providers in so many of these communities, increasing the number of racial and ethnic minorities graduating from health professions schools is an effective and critical strategy for expanding access to primary care health services in underserved communities.

*91 C. Practice Location and Populations Served

      Thousands of communities across the United States have been designated as “Health Professionals Shortage Areas” (HPSA) by the Health Resources Services Administration of the United States Department of Health and Human Services. While these communities are by no means exclusively minority, they are disproportionately minority relative to percentage of population. In California, for instance, there is evidence that physician supply is inversely related to the concentration of African Americans and Latinos in the service area. This troubling inverse correlation appears to exist even after adjusting for community income level, and it exists in both rural and urban pockets of the state.

      This chronic access problem is not limited to California and is not limited to the African American and Latino communities. Simply stated, many minority communities have a chronic undersupply of health  care professionals, and this reality has an adverse impact on access to health  care and contributes to racial and ethnic disparities in health status.

      Although the Court in Bakke correctly noted the dearth of empirical data examining the practice patterns of minority physicians, researchers in the more than quarter century since Bakke have carefully examined practice patterns of minority physicians. The findings have been quite consistent and noteworthy: minority physicians are more likely to practice in underserved communities, and more likely to serve minority communities. Minority physicians have higher percentages of patients who are low income, covered by Medicaid, and sicker.

       *92 For instance, a 1985 study by Keith et al. of medical school graduates from the class of 1975 demonstrated that African American, Latino, and Native American physicians were almost twice as likely to be practicing in a HPSA as non-minority physicians, and were far more likely to be caring for patients of their own race or ethnicity. African American patients comprised 56% of the patient load of African American doctors and 8-14% of the caseload of non-African American physicians. Latinos comprised 30% of the caseload of Latino physicians, and 6% of the caseload of non-Latino white physicians.

      A 1996 study by Komaromy et al. focused on practice patterns of physicians in California and reached similar conclusions. African Americans comprised 52% of the caseload of African American physicians, and 9% of the caseload of non-African American physicians. Likewise, Latinos comprised 54% of the caseload of Latino physicians, and 20% of the caseload of non-Latino white physicians. This study controlled for the racial makeup of the community where the physicians practiced, and the findings nonetheless were quite stark and statistically significant.

      This study also showed that minority physicians cared for more poor people than non-minority physicians. African American doctors reported that 45% of their patients were Medicaid recipients; Asian physicians reported 30%; Latino physicians reported 24%, and non-Latino white physicians reported 18%.

      Both the Keith and Komaromy studies examined whether these practice patterns described above were by choice. Komaromy, for instance, examined minority graduates at the University of California-San Francisco, one of the most selective medical schools in the country. Graduates of UCSF have many career choices, and the researchers found that minority graduates at UCSF had substantially similar practice preferences to minority graduates elsewhere.

      A 1987 study of California physicians by Davidson and Montoya again confirmed that minority physicians care for higher percentages of Medicaid patients than non-minority doctors and see higher percentages of minority patients *93 than non-minority doctors. In this study, 32% of the minority physicians reported having Medicaid caseloads of greater than 40%, as opposed to 10% for non-minority physicians. Almost 60% of non-minority physicians reported having Medicaid caseloads of less than 10%, as opposed to 33% of minority physicians.

      In a 1995 study, Moy et al. analyzed data from a national survey that had over 15,000 respondents and found that minority physicians were more likely to provide care to racial and ethnic minority patients, poor people, and people who were sicker. Medicaid patients were 2.62 times as likely to receive their care from a minority physician as from a non-minority physician. Patients of minority physicians were much more likely to report being in poor health and having visited an emergency room than patients of non-minority physicians.

      More recently, the Association of American Medical Colleges (AAMC) released a report entitled “Minorities in Medical Education: Facts and Figures 2005.” This is the thirteenth edition of this critical compilation of data regarding minorities in medical education. In this report, the AAMC documented the findings of its 2004 Medical School Graduation Questionnaire. In this questionnaire, 21% of 2004 graduates reported that they intend to practice in an underserved community. There are noteworthy racial differences: 50% of African Americans, 41% of Native American/Alaska Natives, and 33% of Latino graduates reported an intent to practice in an underserved community, while 18.4% of white graduates reported such intent.

      The studies described herein are by no means the only bodies of research documenting the practice patterns of minority physicians. Many other studies have reached the same conclusion. In dismissing the access rationale put forth by the state, the Court in Bakke noted that there was insufficient evidence that a race-*94 conscious admissions program in question was “likely to have any significant effect on the problem” of improving access to health care in underserved communities. A quarter century later, there is a robust body of research demonstrating that increasing racial and ethnic diversity in the health professions will improve access to health care for underserved, poor, and minority communities.

D. Legal Analysis: Does the Interest in Expanding Access and Eliminating Disparities Rise to the Level of a “Compelling Interest” Justifying the Use of Narrowly Tailored Race-Conscious Admissions and Recruitment Practices?

      The concept that increasing racial and ethnic diversity in the health professions is a critical component of an overall strategy to eliminate racial and ethnic disparities in health status and improve access to health  care in underserved, minority communities is hardly novel. The famous Flexner Commission report of 1910 concluded that one of the most effective ways to meet the health care needs in African American communities was to increase the number of African American health care providers. This report was released in the context of widespread segregation in America.

      Today, while de jure segregation is unlawful, the challenges of eliminating health disparities and expanding access in underserved communities of color remain daunting. The evidence outlined in the preceding section makes the case that increasing racial and ethnic diversity in the health professions is a very effective strategy for addressing the access and disparities challenges. In fact, the Sullivan Commission on Diversity in the Healthcare Workforce, a nonpartisan, blue ribbon panel established by the Kellogg Foundation to study health care workforce diversity issues, released a report in 2004 entitled “Missing Persons: Minorities in the Health Professions.” In this report, the Sullivan Commission reached the noteworthy conclusion that the failure of the health professions to keep pace with the changing demographics in America “may be an even greater cause of disparities in health access and health outcomes than the persistent lack of health insurance for tens of millions of Americans.”

      The need to increase access and eliminate disparities is undoubtedly critical, but the question remains: would the Court conclude that this need is sufficiently “compelling” to justify the use of narrowly tailored race-conscious admissions and recruitment programs? There are three reasons for optimism that a court might *95 recognize such an interest. First, as the Court in Grutter noted, “[c]ontext matters when reviewing race-based governmental action under the Equal Protection Clause.” Health care presents a critical and appealing context from which to make the argument for recognition of such an interest. For millions of poor people and minorities in America, the health care system remains separate and unequal. This reality can have dire consequences, and the demographic transformation of America adds a heightened sense of urgency to the situation. It is necessary to implement every feasible intervention that has proven effective in increasing access to health care in underserved, poor, and minority communities. There is a robust evidence base establishing that increasing racial and ethnic diversity in the health professions will increase access to health care for poor, underserved, minority communities, and increase health outcomes. Race-conscious admissions and recruitment programs have a proven track record in increasing the number of minorities in the health professions. This context is critical.

      Second, the Court in Grutter, in adopting Justice Powell's diversity rationale, ratified a “forward looking” justification for race-conscious decision-making. Rather than limiting race-conscious decision-making to correcting past discrimination, the Court clarified that narrowly tailored race-conscious programs can be employed as a means of capturing the benefits to society of a particular compelling interest now and into the future. To put it differently, race-conscious approaches can be used in certain circumstances to address critical public policy or other societal challenges.

      Eliminating racial and ethnic disparities in health status, and expanding access to health  care for poor, underserved and minority communities, is a critical public policy and public health challenge. The Grutter Court has opened the door to consideration of other compelling interests that are not remedial in nature. The disparities and access challenges are undeniably critical challenges that must be addressed now and into the future.

      Third, there is evidence to suggest that race and ethnicity--as opposed to some other race-neutral proxy--is indeed a critical indicator in the determination of likelihood to practice in underserved communities. In examining whether courts would recognize the compelling interest in eliminating racial and ethnic disparities in health status and expanding access to health  care for poor, underserved and minority communities, it is important to analyze whether the race-conscious *96 framework is either “needed or geared to” solving the access and disparities challenges at hand. In other words, it is imperative to study whether there are race-neutral proxies that will accomplish the admittedly laudable goal of increasing access and reducing disparities by increasing racial and ethnic diversity in the health professions.

      Critics of the access framework described herein may contend that there are ample race-neutral alternatives that will increase the number of minorities graduating from health professions schools. For instance, a health professions school could simply probe an applicant's demonstrated commitment to practicing in underserved communities. Under this framework, there would be no need to consider an applicant's race or ethnicity.

      In dismissing the State's access rationale, the Court in Bakke discussed the availability of race-neutral means of measuring physicians' likelihood to practice in underserved communities:

       It may be correct to assume that some [minority doctors] will carry out this intention [to practice in underserved communities], and that it is more likely they will practice in minority communities than the average white doctor .... Nevertheless, there are more precise and reliable ways to identify applicants who are genuinely interested in the medical problems of minorities than by race. An applicant of whatever race who has demonstrated his concern for disadvantaged minorities in the past and who declares that practice in such a community is his primary professional goal would be more likely to contribute to the alleviation of the medical shortage [in underserved communities] than one who is chosen entirely on the basis of race and disadvantage. In short, there is no empirical data to demonstrate that one race is more selflessly socially oriented or by contrast that another is more selfishly acquisitive.

      There may be race-neutral alternatives that will assist in increasing racial and ethnic diversity in the health professions. However, there is evidence that race in and of itself is a powerful and better indicator and predictor of service to poor, underserved, and minority communities.

      A study in 2000 by Rabinowitz et al. focused on the practice patterns of primary care physicians and sought to identify which factors are the best predictors of their likelihood to practice in underserved communities. The research team analyzed which, if any, of the following factors predicted practice in underserved communities:

       *97 • Sex;
       • Status as underrepresented minority (defined as African American, Latino, Native American, Alaska native);
       • Family income when growing up;
       • Growing up in an inner-city or rural area;
       • National Health Service Corps participation;
       • Strong interest in underserved practice prior to medical school; and
       • Clinical experience with the underserved while in medical school.

      A number of factors correlated with increased likelihood to practice in an underserved community. However, the study team isolated the impact of each factor, and found that race was the greatest determinant of service to underrepresented communities, controlling for all other factors. This upshot of this study is that race and ethnicity matter, and matter more than any other factor in determining whether a physician will practice in an underserved community. Moreover, race and ethnicity matter independently of such other factors as socioeconomic status, prior interest in serving in underserved practice, and clinical experience with the underserved while in school. This study suggests that the Court's above-quoted pronouncement in Bakke about the availability of “more precise and reliable ways” than race or ethnicity to attack the access and disparities challenges is in fact incorrect. A nationally respected research team led by the Deputy Director of the National Institutes of Health reviewed the Rabinowitz study and noted:

       The primary intent of this study was not aimed solely at testing whether or not minority physicians provide more care to the underserved. However, the findings with respect to this study question appear quite robust.... [M]inority status [has] again emerged as significantly and independently associated with serving a substantial proportion of underserved patients in their caseloads.

      Race and ethnicity indeed appear to be the most “precise and reliable” ways of predicting practice in underserved communities, and the Rabinowitz study is not the only report to reach this conclusion. Given the health care emergencies that *98 exist in so many communities of color as a result of the lack of access to health care, it is imperative for health professions schools to be able to use race-conscious admissions and recruitment practices as a means of increasing racial and ethnic diversity in the health professions. The other indices do not appear to be as effective. Of course, such race-conscious policies and practices would have to comply with the narrow tailoring strictures set forth in Grutter. Among other things, this means that race is one of many factors that can be taken into account in a holistic review process.

      In terms of court precedents, no court has recognized the compelling interest outlined in this section. As noted earlier, courts have sanctioned non-remedial affirmative action, and have done so in settings other than simply the higher education and K-12 contexts. Police and corrections hiring are two settings in which courts have permitted race conscious decision-making. Wittmer v. Peters is the seminal case establishing that in the corrections hiring context, non-remedial race-conscious hiring policies are permissible as long as the government can demonstrate that such policies are necessary to accomplish important law enforcement objectives. Corrections experts agree that it can be very difficult to perform corrections functions effectively if the inmate population is predominantly one race or ethnicity, and the corrections officers are predominantly of a different race or ethnicity.

      In the police context, courts have upheld race-conscious hiring and promotions practices, noting that, “effective crime prevention and solution depend heavily on the public support and cooperation which result only from public respect and confidence in the police. In short, the focus is not on the superior performance of minority officers, but on the public's perception of law enforcement officials and institutions.” It is extremely difficult, if not impossible, to implement effective community policing strategies if the police force does not resemble the communities being served, because it is more difficult to earn the public trust and confidence necessary to preventing crime and building community support. Also, it can be extremely difficult to conduct effective undercover operations if a police force does not include officers of the same race or ethnicity as the community where the operations are being carried out. Citing *99 operational need, courts have repeatedly given latitude to police and corrections departments to implement narrowly tailored race-conscious hiring and promotion practices.

      The health  care setting is distinguishable from the police and corrections settings in the sense that it is at least theoretically possible to reduce health disparities and increase access to health  care for vulnerable communities without adopting race-conscious admissions policies designed to increase racial and ethnic diversity in the health professions. On the other hand, in the police setting, community policing simply does not work as effectively when a department does not reflect the community it serves. The case outlined above for judicial recognition of a compelling interest in reducing disparities and increasing access to health care for underserved, poor, minority communities is not premised on the “operational necessity” rationale set forth in the police and corrections settings. Such arguments in all likelihood would not withstand scrutiny in the health context.

      Overall, it is time for health professions schools to invest in affirmative action insurance policies by building the case for judicial recognition of the compelling interest in eliminating racial and ethnic disparities in health status and increasing access to health  care for poor, underserved, minority communities. Ample empirical evidence exists to support judicial recognition of such an interest, including evidence that race and ethnicity are the best indicators of a health care provider's likelihood of practicing in a poor, underserved, minority community. Time may be of the essence. The need to construct alternative defenses of race-conscious admissions and recruitment practices in higher education is greater in light of the fragile majority in Grutter and the retirement of Justice O'Connor, who was the architect of the Grutter framework and the decisive vote in the case.

*100 E. Does the Access Framework Have Application in the Legal Context?

      The health professions are the most effective contexts to put forth this access claim, because the evidence base is strongest. It is interesting to examine whether a similar case could be made in other professions. While the empirical basis is not as robust as in the health professions context, there is some evidence that lawyers of color are also more likely to provide service to underserved communities than their white counterparts.

      The findings of a 1997-98 survey examining the post-graduation performance and careers of minority alumni of the University of Michigan Law School found that minority alumni as a group provided much more service to minority clients than their white counterparts did. In addition, minority alumni who entered private practice tended to do more pro bono work, serve on more community boards, and exercise more community leadership through political activity than white graduates.

      This pattern of service has also been found among Asian and Pacific Islander American alumni from the UCLA School of Law. This school, which has been one of the leaders in promoting racial diversity in the legal field, implemented an affirmative action program in 1967 to give disadvantaged students of color a legal education subsidized by the state. A 1988 survey of Asian and Pacific Islander American law school alumni found that UCLA's Legal Education Opportunity Program (LEOP)/diversity alumni “contributed seven times more pro bono hours in the minority communities, and almost four times (3.7) the amount of time in minority civil or business organizations than their regular admit counterparts.” In addition, 46.7% of regular practice clients of the LEOP/diversity admittees were from ethnic or minority groups, compared to 25.2% of clients of regular Asian and Pacific Islander American admittees. LEOP/diversity admittees also served a much higher proportion (2.7 times) of low-income/working class clients in regular practice than regular admittees did. The findings suggest that excluding Asian and Pacific Islander Americans from affirmative action programs might have an adverse effect on the number of Asian and Pacific Islander American lawyers working with underserved communities.

       *101 Research conducted by the Task Force on Minorities in Legal Profession of the New Mexico State Bar combined with census data shows that minority graduates from the University of New Mexico School of Law tend to represent minority and underserved communities. The New Mexico Bar has even stated that the law school's race-sensitive admissions practices and racial diversity are “indispensable to a racially diverse state bar that can serve the legal needs of all citizens.”

      The results of these studies underscore the significant impact that law school diversity programs can have in improving access to justice for—and meeting the legal needs of—underserved communities. However, the findings are limited because they only examine several schools and certain groups of graduates. Additional research needs to be conducted to build a firm base of empirical knowledge that courts will recognize as being even more compelling. Therefore, law schools should invest in the research necessary to establish whether it is indeed accurate that lawyers of color are more likely to serve communities of color, and more likely to serve poor, underserved communities. It would be important to investigate the precise role that race and ethnicity—as compared with other race-neutral indicators—play in explaining the evidence.


      Proponents of affirmative action in higher education owe a major debt of gratitude to Lee Bollinger, the former President of the University of Michigan, and others at the University of Michigan who made a large investment in building the case for diversity. The extensive record developed in the lower courts was a critical component of the successful defense of race-conscious admissions programs. Grutter is replete with references to the record developed in the lower court proceedings. The diversity rationale is potentially on thinner legal ice in light of Justice O'Connor's retirement, although nobody can state with any degree of certainty exactly how thin the ice has become. As a result, it is important *102 for health professions schools to build the case for judicial recognition of the access rationale.

      Schools interested in continuing the use of race-conscious admissions practices under the “access” rationale should consider the following strategies.


A. Research Agenda

      Despite the robust body of research outlined above regarding practice patterns of minority health care providers, a substantial research agenda remains. Although the evidence regarding practice patterns is similar across health professions, the research is most plentiful in the physician context. It is important for all health professions schools to invest in research around this question of practice patterns, so that one health profession is not in the position of having to rely primarily on data from another health profession to make the case for judicial recognition of the access rationale. The results of the research have been remarkably consistent across health professions. It is important to have a sufficient quantity of methodologically sound studies in each profession, so that schools will have the evidence base to proceed with race-conscious admissions policies designed to further the compelling interest in reducing disparities and increasing access to health  care for poor, underserved, minority communities.


B. Mission Statement Review

      Health professions schools interested in implementing race-conscious admissions and recruitment programs should re-examine their mission statements to determine how they have defined their institutional mission. Programs, policies, and practices at any institution should flow from the institution's mission statement, and it may be useful for health professions schools to conduct a self-assessment and reflect upon the importance of both diversity and service to underserved communities.

      A more explicit commitment in a mission statement to obtaining the educational benefits that flow from a diverse student body, and to producing a *103 well-trained health care professional committed to addressing the health care needs of the underserved, can form the basis of policies and practices, such as race-conscious admissions and recruitment policies, that will maximize the chances for success in achieving these goals.


C. Revamping Admissions and Recruitment Policies

      Reviewing mission statements and incorporating the elimination of disparities and improving access to underserved communities should invariably lead to the development of revised admission policies and practices. If a health professions school is contemplating race-conscious admissions policies using the access rationale, it is imperative to set forth the rationale in a written admissions policy.

      It is equally important to have the evidence base adequately developed and readily at hand in the event of a legal challenge. It is important to remember a basic adage of policy development: good facts make good law, and bad facts make bad law. Conclusory statements about the need to increase access to health  care for underserved populations—and eliminate racial and ethnic disparities— without more, will not justify the use of a race-conscious admissions policy or practice. The evidence base connecting race-conscious admissions policies and service to underserved communities exists, although it can certainly be buttressed further. Health professions schools must become conversant with this evidence base so that they are in the best position to defend against a constitutional challenge to this program.


      In the past two years, two seminal reports have been issued addressing health care workforce diversity—one by the Institute of Medicine (IOM) and one by the Sullivan Commission. The names of each report are instructive. The IOM Report is entitled In the Nation's Compelling Interest: Ensuring Diversity in the Healthcare Workforce. The Sullivan Commission Report is entitled Missing Persons: Minorities in the Health Professions. The blue ribbon panels that reviewed the health care landscape for vulnerable populations both concluded that it is indeed in the nation's compelling interest to develop a comprehensive strategy to increase the racial and ethnic diversity of the health care workforce. This is a life or death matter in so many communities across America.

      These reports were designed to be a wakeup call for policymakers, educators, communities, and other stakeholders to develop a comprehensive plan to increase racial and ethnic diversity in the health professions. This article reflects an effort to build upon the challenges outlined in these calls to action and construct an *104 additional legal framework to supplement the diversity rationale for race-conscious admissions and recruitment policies. Too many poor people and people of color simply do not have access to health care, and are suffering unnecessarily or in some cases, dying prematurely and tragically. As a nation, we must develop an aggressive strategy to expand access to health care for vulnerable people that rests on as many legal pillars as possible.

      This article has set forth the evidence base linking a race-conscious admissions program to progress in increasing access to health  care for poor, underserved, and minority communities and progress in eliminating racial and ethnic disparities in health status. It is time to put this evidence base into action and construct narrowly tailored race-conscious admissions programs on this framework. This access rationale for race-conscious decision-making in health professions schools has its roots in the Bakke decision itself. While this rationale may be untested in the courts, and would currently supplement the judicially sanctioned diversity rationale set forth in Grutter, the future status of the Grutter framework may hinge on the recent transition in the Supreme Court. As a result, while the insurance policy may not be necessary in the immediate future, it is important nonetheless to purchase this insurance policy for race-conscious admissions in the health professions.

Assistant Professor of Law, Former Director of Clinical Legal Programs, University of Maryland School of Law.