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Barbara A. Noah

Reprinted from:  Barbara A. Noah, A Prescription for Racial Equality in Medicine , 40 Connecticut Law Review 675-721 (February, 2008)(186 Footnotes)

       [p677] The man who never alters his opinion is like standing water, & breeds reptiles of the mind.
       William Blake

       The Marriage of Heaven and Hell
       Plate 19 (1790)

      Statistically, race plays a profound role in health. Estimates suggest that by 2030, well over forty percent of the American population will be members of minority races. A recent Harvard study examining regional and nationwide disparities in life expectancy found an eighteen year gap between the life expectancy for Asian females compared with African American males. Although the causes of such dramatic differences in life expectancy are multiple and complex, evidence suggests that cultural [p678] barriers to doctor-patient communication and resulting disparities in quality of care contribute substantially to the gap. More broadly, a significant body of research demonstrates that race adversely affects the quantity and quality of health care provided to minority patients. In order to tackle this truly odious quality gap, medical educators, individual health care providers, and health care institutions must take active steps to identify its underlying causes and make changes at all levels of health care delivery. This Article focuses primarily on the dynamic between individual provider and patient, and it considers educational and policy mechanisms, consistent with current law, to improve quality of care for patients of color and, ultimately, for all patients.

      Research suggests that the quality of communication between physician and patient strongly influences the quality of care that the patient receives, and that social and cultural stereotypes can interfere with communication. Racial and cultural diversity in medical education helps physicians in training to develop crucial communication skills and to break down stereotypes so that all medical school graduates, not only minority physicians, will be equipped to communicate with and provide optimal care for patients whose race differs from their own. The concept of diversity frequently is understood to refer to racial and ethnic diversity, particularly focusing on the inclusion of under-represented minority (URM) groups, but the ideal medical school class should include not only under-represented racial and ethnic minority students, but also students of diverse political viewpoints, religions, and socio-economic backgrounds.

      As explained within, diversity in medical education promotes two separate but related goals. First, admitting students of diverse backgrounds obviously opens up the professional field of medicine to members of diverse racial groups. Because URM physicians more often choose to work in medically underserved areas, this in turn increases access to care for underserved patients and provides many patients of color with the opportunity to receive care from a physician with whom they can communicate effectively and whom they trust. Second, diversity in medical education breaks down racial, cultural, and religious stereotypes [p679] by exposing all members of the medical school class to the different perspectives and experiences of their classmates. This immersional experience, together with explicit training in “cultural competence,” can improve the quality of communication between physicians and patients and, ultimately, the quality of medical care.

      Because of longstanding societal inequities, the admission of well-qualified medical students from under-represented minority groups continues to pose challenges and, for now, admissions policies that consider race (among other important factors) play an essential role in guaranteeing racial diversity in medical schools. Other commentators have ably presented and evaluated the now-familiar arguments offered by proponents and critics of affirmative action in higher education. Supporters of affirmative action in higher education argue that these admissions programs both atone for past discrimination and provide some counter-balance for ongoing societal bias, and that diverse classrooms enhance the learning experience for students of all races and prepare graduates for work in a racially and culturally diverse world. Detractors of affirmative action in this context suggest that race-conscious admissions policies draw attention to and perpetuate racial differences, stigmatize the intended beneficiaries of affirmative action, and unfairly exclude highly qualified white applicants. This Article brackets and sets aside the larger, complex debate over affirmative action in higher education and instead focuses on the operation and influence of the diversity rationale as a justification for race-conscious admissions programs and its importance to eliminating bias and improving quality in health care delivery.

      After a twenty-five year pause, the Supreme Court in 2003 once again spoke on the issue of affirmative action in higher education admissions and affirmed the ability of public colleges and universities to consider race as a factor in the admissions process. The narrowly drawn opinions in Gratz v. Bollinger and Grutter v. Bollinger focused on the specific educational contexts in which they arose-Gratz on undergraduate admissions and Grutter on law school admissions. The Grutter opinion considered and endorsed classroom diversity as a compelling governmental interest justifying the use of race and ethnicity as a factor in higher education admissions, as originally suggested by Justice Powell's well-regarded [p680] opinion in Regents of the University of California v. Bakke.

      None of these opinions, however, explored in any depth the question of whether the nature of the compelling state interest justifying the consideration of race in higher education admissions differs from one educational context to another. As with many complex societal issues, broad generalizations work less well than specific and nuanced discourse to promote consensus. Because affirmative action and the diversity rationale will continue to provoke controversy, those who engage in the debate should attempt to make the dialogue more productive. Some skeptics view diversity as a visible manifestation of political correctness run amok, with little intrinsic value. Others see multiple layers of benefit, to minority students, their white classmates, and to society at large. Given this divergence of opinion, it would be helpful to explore the value and function of affirmative action to achieve diversity in specific educational contexts rather than simply as a general concept. Accordingly, this Article considers the operation of diversity as a justification for race-conscious medical school admissions and suggests that, although the rationales offered in support of race-conscious admissions support the use of these strategies to diversify classes in all types of higher education, the diversity rationale in medical education is different in kind and, in terms of its ultimate societal impact, arguably more compelling than in other contexts.

      The Grutter decision by no means settled the debate about affirmative action and the value of diversity in higher education. In fact, a couple of recent developments suggest that this issue will continue to receive attention and that universities utilizing race-conscious admissions policies should not become complacent. With recent changes in the Supreme Court's composition replacing the authors of the majority opinions in both Gratz and Grutter, it is not inconceivable that the newly-constituted [p681] Court may seek an opportunity to revisit affirmative action in higher education. In fact, the Court at the end of its most recent term decided a pair of cases invalidating public school district plans that used student race as a primary factor in school assignments in order to maintain racial balance in the classroom.

      The Court's initial decision to hear these cases provoked some surprise among commentators who observed that, in December of 2005, with Justice O'Connor still on the Court, the justices declined to hear a challenge to an almost identical school integration plan. In addition, the three federal circuits to hear such challenges since the Gratz and Grutter decisions all upheld the school district plans in question, leaving no circuit split for the Court to resolve. In deciding the public school cases, the Court avoided direct reconsideration of the higher education decisions from 2003, and in fact explicitly distinguished Grutter, but the Court's decision to invalidate these school district desegregation plans certainly opens the door to further discussion and undoubtedly will impact the debate about appropriate means to achieve racial diversity in the classroom and the intrinsic value of diversity as an educational goal. Even if the [p682] Court declines in the future to revisit the constitutionality of higher education affirmative action programs such as the one in Grutter, increasing litigation and legislative activity as well as growing public debate concerning the appropriateness of affirmative action will continue to have an adverse impact on the representation of certain minority groups in medical schools and ultimately in the medical profession. State initiatives prohibiting race-conscious university admissions policies already have chipped away at the practice in a number of states. Organizations such as the United States Commission on Civil Rights have criticized race-blind alternatives to affirmative action for failing to assist students of color who are not at the top of their high school classes and for significantly decreasing diversity in graduate level education. Pro-affirmative action organizations have expressed the well-justified concern that the Michigan decisions will galvanize opponents of the process into action at the state level. Even after the Grutter decision in 2004, eight [p683] anti-affirmative action legislative initiatives were introduced in three states and such efforts continue to this day. In fact, in November of 2006, fifty-eight percent of voters in Michigan approved a ballot initiative to amend the state's constitution to prohibit affirmative action in higher education admissions, public employment, and public contracting. Opponents of the measure immediately filed a legal challenge to the amendment in the U.S. District Court. The battle over affirmative action will continue.

      Part II of this Article lays out the evidence documenting racial disparities in the provision of health care that contribute to poorer health outcomes for African Americans and several other minority groups. Part III provides an overview of some of the key constitutional decisions that have recognized and developed the position that racial and ethnic diversity represents a compelling governmental interest justifying the appropriate use of such classifications in higher education admissions. Part IV explores in depth the function of diversity in medical education and its connection with improved quality of care and provides some suggested approaches for tackling these challenges. Finally, Part V acknowledges the unanswered questions that remain in the conversation about race and health care quality.