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.