V. THROUGH THE LOOKING GLASS: THE REAL EFFECT OF OUR EXISTING CIVIL RIGHTS FRAMEWORK ON HEALTH CARE ACCESS

Brietta R. Clark, Hospital Flight from Minority Communities: How Our Existing Civil Rights Framework Fosters Racial Inequality in Healthcare, 9 DePaul Journal of Health Care Law 1023-1100 (2005) (270 Footnotes omitted).

The Brown decision[s] invalidated ‘separate but equal,’ replacing it - as civil rights advocates urged - with ‘equal opportunity.’ But given the continued motivations for racism, society has managed to discriminate against blacks as effectively under the remedy as under the prior law - more effectively really, because discrimination today is covert, harder to prove, its ill effects easier to blame on its black victims.   Could the above quote about the effects of Brown be true for discrimination in health care? Have we indeed made it easier to discriminate by making it more difficult to fight discrimination? This is a harsh indictment of our current civil rights paradigm, but one which we see revealed through the hospital closure problem. Indeed this article was born out of a desire to understand how a problem as pervasive as hospital flight from minority communities is still largely ignored in the discussion of racial inequality in health care, and more specifically, whether the unfulfilled promise of Title VI could be revived to help plaintiffs fight racial inequality resulting from increasing numbers of private and public hospital closures. The organizers of the symposium where I presented this paper expressed this concern in a much simpler and more powerful way, entitling my panel: Is Civil Rights Law Dead? When this question is raised, the focus is usually on the litigation part of the civil rights framework, though, as Parts I-IV demonstrate, all three parts play an important role in understanding the failures of our civil rights framework.

In one of the few articles considering hospital relocations from a civil rights perspective, a civil rights advocate with experience litigating Title VI challenges to prevent hospital closures identifies three important purposes that such litigation can serve:

*1078 First, and, perhaps most importantly, as individual challenges to discriminatory or exclusionary practices, lawsuits bring relief to a plaintiff or group of plaintiffs. Second, suits build a record of discriminatory and exclusionary practices, a record that can be used by advocates to educate the public and to support legislative and administrative change. . ..Third, collectively, these suits constitute a direct assault on the wall separating care for individuals of different racial or ethnic backgrounds and different income levels. This third point, in essence, suggests that enforcement of civil rights and access-oriented laws will help to undermine the viability of the current separation between the high-tech, quality care that wealthy, middle-class and predominantly white America has come to expect and the underfinanced, inadequate and delayed health services so often provided to the poor and many people of color.” 

By all three measures, one might be tempted to argue that civil rights law as an effective tool for change is indeed dead. First, in almost every challenge to a hospital closure case that has been brought, plaintiffs have lost.   The numbers of private and public closures plaguing underserved areas throughout the U.S, coupled with studies reporting the widening of race disparities in health status and access, suggest little effect on the disparities resulting from *1079 economics and race. Certainly, the protests of King/Drew's closure is one of many examples showing that minority communities do not perceive that civil rights laws have helped to guarantee equality in public resources.

Second, despite proven links between the underfunding of services for the poor as a cause of increased hospital closures, on the one hand, and the exacerbation of racial disparities and the increasing strain our health care resources that result from hospital closures, on the other, we still have not seen a coordinated or sustained movement for legislation that would ensure everyone adequate health insurance and access to quality health care. On the contrary, we continue to see government cuts in health care funding for the poor and other health policy decisions that result in increasing numbers of uninsured. 

Finally, the Supreme Court recently issued a ruling that jeopardizes even the small leverage communities gained from Title VI challenges to hospital closures.   In Alexander v. Sandoval, the Supreme Court sent chills through the spine of the civil rights community when it held that Title VI does not provide a private right of action to enforce regulations that prohibit facially neutral actions which have disparate effects.   In Sandoval, respondents brought a class action to enjoin the Alabama Department of Public Safety's decision to administer state driver's license examinations only in English.   Respondents argued that the department's policy violated regulations promulgated pursuant to Title VI because it had the “effect” of *1080 discriminating against non-English speakers on the basis of national origin. The Court distinguished between the statutory language and regulations, viewing the regulatory obligations set forth as simply expanding administrative agency power, but not creating an independent private right of action.   The decision was particularly shocking in light of the fact that only two years before, the Commission issued its scathing report documenting the OCR's “shameful neglect” and structural deficiencies that undermined its efficacy, proving the importance of courts as a check on government accountability. 

After seeing how all three parts of our Title VI framework combine to essentially shield defendants from any accountability and foreclose plaintiffs' relief in hospital relocation cases, however, perhaps the question should not be whether civil rights law is dead. Perhaps the question should be whether the assumptions underlying our existing health care system and civil rights framework, assumptions very much alive and well, serve to foster racial disparities, while public and private actors hide behind a mask of legitimacy created through superficial Title VI protections.   As devastating as the effects of individual hospital closure or relocation cases are, the assumptions underlying the legal principles developed in these cases seem to infect our discourse about civil rights and equality in health care in far more insidious ways. Defects in the existing structure of antidiscrimination law can impede the struggle for true equality in light of the function law serves in society as not only “reflect[ing] dominant societal moral positions, but also serv[ing] as part of the process of forming or crystallizing such positions.”   Ironically, though health care is one of the *1081 least talked about areas in civil rights jurisprudence, the hospital relocation problem provides one of the clearest examples of these dangerous effects.

In their rejection of Title VI challenges to hospital closures, courts have crystallized several assumptions that infect our current discourse in ways that impede meaningful reform. First, the search for a “bad motive” or blaming in place of a true disparate effects test diverts our attention from the lapse in government accountability and its conscious neglect of racial inequality. Second, ignoring the intersection between race and economics so critical to defining and addressing the inequitable distribution of hospital resources affirms an ideology inherent in the structure of our health, political, and judicial system that is incompatible with racial equality in health care. That is, it affirms an ideology that sanctions economic discrimination and market competition as a fair way to regulate the distribution of health care resources. This discourages an honest critique of the forms and effects of race discrimination in our health care system, which, in turn, impedes our ability to identify and construct the kind of creative and radical approaches needed to reform the system. Finally, the affirmation of these principles also creates process-oriented barriers to the development of an empowered, community-driven reform effort. It encourages divisiveness by focusing our attention on points of conflict, rather than common interests that should be used to build powerful coalitions across many different groups.

A. Implications of a Blaming Paradigm

The effects of a “blaming” framework extend beyond the individual cases that plaintiffs have lost, infecting our discourse about equality in health care in dangerous ways. This is evident in the contrast between our willingness to express outrage at overt acts of racism and our lack of outrage about the government's active role in creating a system that is patently incompatible with racial equality. In 2002, Trent Lott made the infamous statement apparently expressing support for Thurmond's segregationist platform back in 1948. There was an outpouring of anger and calls from the black community demanding his resignation. More recently, Bill Bennett, the former Education Secretary, made the comment that “if we abort every black baby, the crime rate would go down.” Once again, public outrage was clear. These isolated *1082 statements, while having little, if any, effect on the plight of minorities, are obvious examples of the kind of racial bias that we abhor as a society and, thus, are easy targets for “blame” and calls for punitive measures. By contrast, there has been a notable lack of outrage about, and attention paid to, the federal government's role in creating and maintaining a health care system that fosters race discrimination. Despite the fact that, the government, through its legislative, administrative, and judicial arms, has made choices at critical junctures that have knowingly undermined civil rights enforcement and revealed a conscious disregard for the health and psychic effects on minorities, criticism of the government's responsibility for this problem is muted in mainstream discourse.

This muting effect may be due in part to the reality that health care has traditionally not been treated as a priority among the list of civil rights issues to be addressed.   Issues that impact minority communities on a day-to-day basis, such as education, employment, and conflict with criminal law enforcement get the most attention. Health care does not rise to the same level of importance as these other problems until a hospital closure makes it visible and minority leaders become actively involved in ways that energize and give voice to the community's concerns. Another reason for this muting effect may be the localization of hospital conflicts. The federal government has successfully shifted the focus of these disputes to the local level through the delegation of its facilities planning to local agencies. Hospital closure conflicts, as currently framed, pit local communities against local hospital providers or local government officials making the closure decision. The courts, in applying a traditional intent-based analysis, look narrowly at this point of conflict and ask whether the decision maker has a bad intent. This framework causes us to ignore the importance of the relationship between the federal and local government in facilities planning, and more specifically, the history of conscious disregard of disparate effects on minorities at every level. Rather, local actors are painted as victims - and this image is largely reflected in our public discourse as well. The framework that has been absorbed into our discourse equates legal responsibility with blame; without the kind of incendiary statements given above that obviously *1083 merit blame, society is reluctant to hold the hospitals or government actors accountable. 

Diverting attention from the government's own responsibility allows it to continue acting in ways that are hostile to racial equality.   For example, in 2001, the Institute of Medicine released the results of its report proving that significant disparities still exist between whites and minorities, both in terms of access to health care and health status.   Rather than responding constructively and thoughtfully to the findings, government officials attempted to water-down the racial implications of the report's findings.   Moreover, despite the documented links between an underfunding of health care for the poor and the problem of urban and physician flight from minority communities,   there is no government reform effort underway to fix the current gaps in health care funding. Despite demonstrated links between racial disparities in access to care, the structural and operational defects identified in the OCR, and the federal government's failure to use its facilities planning power to prevent the unequal allocation of health care resources, Congress has yet to provide adequate resources for the OCR or to become more involved in facilities planning.   Despite calls by leading health law scholars,  *1084 health policy analysts,   and civil rights advocates   for broader reform that would require race data collection and the aggressive use of financial incentives to encourage providers to minimize disparities, there have been no meaningful steps taken toward this end.   In fact, the government continues to cut Medicaid and resist suggestions for comprehensive health care reform that would provide more support for vulnerable populations. 

At the same time, the federal government has tried to shift responsibility for these disparities to other actors in the system. For example, the OCR website contains information about the government's concern and plan for remedying disparities by focusing on research initiatives to investigate the role of genetics or cultural factors in prevalence of disease and success of treatment. It also highlights funding provided for community education efforts to determine how minority communities' own behavior or mistrust may impede their willingness to access care. I do not want to trivialize the importance of understanding how patients' and providers' biases can impact health care delivery. For example, some community groups are very active in working with underserved communities to address this issue.   Some physicians have also initiated important, self-critical *1085 studies yielding evidence of subconscious bias based on race and gender. 

While such initiatives should be encouraged, they are not substitutes for the government's responsibility to ensure equality in the distribution of resources. Unlike the providers who are willing to challenge their own biases or communities with scarce resources willing to learn how to take an active role in their health care, the government refuses to take ownership of its responsibility in creating and perpetuating this problem. In light of the already large credibility gap that exists, any government action that purports to address racial disparities, but fails to acknowledge its own responsibility in fostering racial disparities and encouraging hospital closures, is suspect and will only generate further mistrust among minority communities.

B. The Segregation of Economics & Race

The failure of the court to acknowledge the critical role that economics plays in assessing the magnitude of the harm resulting from hospital closures in minority communities is also reflected in our broader discourse. Sager's study of the hospital relocation problem led him to the conclusion that “[u]rban hospital reconfiguration has manifested and exacerbated problems that can be solved by legislating health insurance coverage for all Americans.” The links between the underfunding of health care, on the one hand, and poor health status, less health care access, and hospital closures in minority communities, on the other hand, should make it clear that legislating universal access to health care is a necessary, though not sufficient, step toward solving the problem of racial disparities. A system based on economic inequity in health care is incompatible with racial equality.

Despite these links, there is a lack of public outrage about the fundamental inequities in the system or demand for fundamental economic reform in health care that would guarantee universal coverage, even by the minority communities most severely affected by hospital closures. I am not arguing that the affected communities or civil rights advocates are unaware of the intersection of race and economics or that they do not understand the importance that resources play in the fight for equality. Indeed, King/Drew proves otherwise. However, what is visible in the vocal and angry protest of a particular hospital closure has been missing in the mainstream discourse. There *1086 does not appear to be wide support for a sustained, powerful, proactive movement to redefine health care equality in this country in a way that meaningfully embodies a resource component.

A couple of reasons for this were suggested above, however, there may be an even more powerful reason highlighted by this tension between race and economics. At a fundamental level, and despite our recognition of the critical link between race and economics, we seem to struggle in the same way that courts struggle in Title VI challenges to define what is fair; that is, does society really embrace a notion of complete equality? Our own schizophrenia in this struggle has surfaced when political leaders have criticized the underlying economic structure of our system and demanded a universal health care system that guaranteed access for everyone. Such leaders have either been undermined, dismissed, or vilified for their attempts at fundamental economic reform. Society's own complicity in this regard is highlighted in a book entitled, The System, in which the authors discuss Clinton's failed attempts at health care reform. The authors recount advice given to President Clinton by Jay Rockefeller, someone considered a formidable advocate for universal health care. Rockefeller assessed the public psychology of the issue:

Cost control is the reform Americans most need, want and are willing to pay for. . ..Peace of mind follows cost control. Voters fear losing coverage from loopholes, job changes, layoffs or catastrophic illness. Reform that makes insurance more affordable helps allay this fear, but voters want stronger safeguards. Fear, much more than compassion, drives support for universal guarantees of coverage. * * *

[The statement that] Americans deserve or have a right to health care is a dead-end approach. Although many Americans may initially react positively to this statement, overtime it can make them uneasy. Before long they will be asking: How would we pay for all that care for all those people? Won't it require a huge new government bureaucracy? Is every American deserving?   *1087 Indeed, as we saw in Part II, the question “Who is deserving?” seems to underlie the inequitable structure of our social insurance system.   We have been taught that economic discrimination is fair based in large part on the myth that we live in a meritocracy where hard work and productivity will be rewarded with material resources.   The logical corollary: those without resources to access quality health care must not have contributed their fair share. This ideology only reinforces our willingness to underestimate the government's responsibility for the barriers to access suffered by poorer, predominantly minority communities. In a civil rights discourse that relies on blaming, we are subconsciously, if not consciously, required to blame someone: if not the government or the hospitals who are acting rationally to maximize profits in a competitive healthcare market, then the affected communities who failed to acquire the necessary resources to ensure their access to health care. 

C. Impediments to Coalition Building & Community Empowerment

This framework has other potentially destructive effects in our struggle for equality. First, by defining civil rights violations in such narrow terms and distracting us from the critical goal of enacting meaningful economic reform, the existing framework can create divisiveness that impedes coalition building critical for this reform.   For example, the focus on race-based motives in this context can pit different racial groups against each other as they compete for scarce resources. This triggers competition among vulnerable groups for scarce resources in a system where government action and inaction is the real threat to the limited safety net we have. In this kind of environment, antidiscrimination claims to resources may be viewed as claims for special protection to a substantive right that is not guaranteed to all. Indeed, courts have expressed this precise concern in justifying their reluctance to use Title VI to second-guess government policy decisions about how resources should be allocated.

*1088 Second, this focus on blaming can cloud our ability to identify other groups as potential partners in health care reform. For example, once we redefine the focus as one of fundamental economic reform, we can identify other groups who are currently vulnerable to the gaps in the public safety net, such as people with disabilities, the elderly, women, and increasingly the middle class generally. Thus broadening the focus of our reform effort allows us to broaden our coalition base. The blaming framework can also perpetuate divisiveness among groups that have traditionally been seen as hostile to minority communities' interests, but who, in fact, have more in common as potential partners in the fight for real health care reform. As I will develop more in the final section, patients and health care providers have a significant common interest in reforming the health care financing system. If we only consider the problem from the point of conflict that arises between patients, physicians, and hospitals in response to hospital closure decisions, communities may fail to see how hospitals and physicians can be powerful partners in a proactive fight for more comprehensive coverage that could help prevent the problems that lead to such closures in the first place.

Finally, because the existing Title VI framework has not provided the promised protection to minority communities, it has engendered mistrust and feelings of isolation that can lead to feelings of hopelessness and discourage potentially beneficial public-private partnerships. Encouraging communities' reliance on the existing civil rights enforcement structure in light of the obvious and pervasive defects in all three parts of this structure is tacitly enabling a system that is inherently discriminatory and incapable of providing meaningful remedies. To talk about civil rights in health care and the hospital relocation problem, without addressing the fundamental reforms necessary and without giving communities real tools to force government accountability only reinforces these feelings of helplessness, mistrust, and anger. This, in turn, can undermine the psychological and emotional empowerment necessary for effective grass roots advocacy in the fight for equality in health care.