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.