THE SUPREME COURT WEIGHS IN ON AFFIRMATIVE ACTION, BUT WILL IT REALLY CHANGE YOUR MEDICAL SCHOOL?The New Physician
Monday morning. The pain of it is just about too much, and a lecture on the Krebs cycle doesn’t help. Your gaze wanders around the lecture hall. Let’s see, who’ll be with you for the next four years?
For the most part, your first-year class of 100 looks much like others across the country. About half men, half women. Very white. About 20 Asian students, six blacks, six Hispanics and the lone American Indian.
Not a very diverse picture, when you compare it against the roughly 12 percent of the population that is black or the same percent that is Hispanic. Asians are the only minority group that has entered medical school at rates higher than the general population—about 20 percent of students compared to just less than 4 percent of the population.
Increasing diversity has been a concern at every medical school, says Dr. Jordan Cohen, president of the Association of American Medical Colleges (AAMC). “As far as I know, every medical school is anxious to identify underrepresented minority applicants…because of the need for physicians who are interested in serving underserved communities, and we know that underrepresented minorities are willing to do that. It’s essential to have a diverse student body and a diverse faculty as well for that reason.”
Schools have engaged in a variety of affirmative action programs since President Lyndon Johnson issued an executive order in 1965 requiring government contractors to use the concept in employment. Defined as a policy or program designed to compensate minority groups and women for historically discriminatory hiring and admissions practices, affirmative action has been limited and, in some cases, banned by a more recent series of court rulings, state laws and executive actions.
So, like many administrators across the country, Dr. Lauree Thomas, the associate dean of student affairs and admissions at the University of Texas Medical Branch (UTMB), was elated when she heard the news last June that the U.S. Supreme Court upheld universities’ rights to consider race in admissions. “I think everybody not just breathed a sigh of relief, [but] it was a new era, a new reckoning, a new beginning,” she says of the ruling in Grutter v. Bollinger, in which Barbara Grutter, a white student denied acceptance to the University of Michigan’s (UM) law school, sued the school and named former UM president Lee Bollinger in the case. “It gives us the opportunity to look at students who would otherwise not be considered for medical school. Minorities make up less than 10 percent of the health-care work force.”
DISSECTING A RULING
But wait a minute. How is a ruling that upheld current law “a new beginning?”
“It’s very significant because until the Michigan ruling whether you could use race as one factor…was a function of the state you lived in…because there was a split in the circuit of what Bakke meant,” says Thomas Perez, the director of clinical law programs at the University of Maryland School of Law and a former head of the federal Department of Health and Human Services’ Office of Civil Rights.
Perez is referring to the 1978 Supreme Court ruling in Regents of the University of California [UC] v. Bakke, in which justices struck down the use of quotas but, in an often-debated opinion from Justice Lewis Powell, found that schools could use race as a plus factor in admissions decisions because a diverse student body is beneficial to education on the whole. The case was rooted at UC-Davis School of Medicine where Allen Bakke sued for reverse discrimination when he was denied admission.
Powell’s opinion gave federal circuit courts something to chew on. In 1996, the Fifth Circuit Court of Appeals held in Hopwood v. the State of Texas that schools under its jurisdiction could not consider race in admissions, ruling that educational diversity was not a compelling state interest. While Texas, Louisiana and Mississippi are all in the court’s district, a still-standing federal order to desegregate Louisiana and Mississippi schools trumped the court’s ruling, and only Texas schools were forced to comply.
The Grutter case voided the Hopwood ruling but launched many affirmative action watchers into a sea of confusion—a fact illustrated by the praise the court’s ruling received from both sides of the issue.
The case is one of two the court heard and decided regarding affirmative action. The other case, Gratz v. Bollinger, concerned the UM undergraduate school’s policy of awarding an automatic 20 points in its 150-point admissions process to minority applicants simply because of their racial or ethnic backgrounds. In a 6–3 decision, the court found the policy unlawful because it did not account for “individualized consideration” of the applicants, a key point in the Grutter case.
In Grutter, however, Justice Sandra Day O’Connor wrote for the 5–4 majority that the law school’s policy was a “narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.”
O’Connor had some stipulations, however. Affirmative action policies must be “narrowly tailored” and the result of clearly defined goals to obtain a “critical mass” of minority students; they should be regularly reviewed, flexible and consider race as one of the applicant’s many positive “soft” variables. “The law school engages in a highly individualized, holistic review of each applicant’s file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment,” O’Connor wrote.
So, with the court throwing around such ambiguous terms as “flexible,” “soft” and “critical mass,” is there any wonder Perez thanks the cases for continued full employment among lawyers? While school administrators scratch their heads over what this all means, lawyers and admissions deans have been weighing in with opinions.
“I think things will change everywhere,” Perez says, encouraging schools to “take a good look” at their current admissions policies. “I think they need to revisit their policy.” And sooner, rather than later. He says we’re now at a point at which each school should have at least begun the process of combing through admissions criteria and mission statements. “I hope so. It’s now been in effect for [nine] months.”
Perhaps nowhere more than deep in the heart of Texas have the effects of Grutter been acutely felt. For the first time in seven years, Texas public schools have the opportunity to consider race in admissions. In the post-Hopwood years between 1996 and 2001, Texas medical schools saw a 13.6 percent drop in minority matriculants, compared to a 4.7 percent decrease nationally during the same period, according to the AAMC.
“Changes are in the making,” Thomas says. But it’s not a done deal. Although the UTMB president has said he would like to bring race into admissions considerations, like many government entities, the wheels at the state schools turn slowly.
Representing the medical school, Thomas sits on a UTMB committee tasked with drafting a position statement and a list of factors that the admissions committee could use to evaluate students. The committee is expected to have a final set of proposed rule changes in May, but policy changes affecting UTMB admissions aren’t expected to take effect until at least 2005. All other UT schools will form similar committees to determine if and how they will consider race in admissions.
Currently, UTMB selects applicants by considering their economic, social and educational disadvantages—other “soft” factors that come out in interviews and personal statements—in addition to test scores and grades. Perhaps someone is a first-generation college graduate or from rural west Texas or has overcome a significant adversity—“If you rank-order them [by test scores and grades], those people may be left behind. We feel you haven’t been given your chance to shine,” Thomas says.
The system yields a class that is about 25 percent minorities, but it’s not perfect, she says. “Even though our numbers in the school of medicine are OK, some of the other schools are not. We want openness and inclusiveness and embracing and welcoming. Yeah, you might have to go the extra mile to get underrepresented minorities to come to your institution, so what? Don’t you do the same thing for alumni because it’s in your vested interest? Or your basketball team?… You’ll make the opportunity for that student with a 2.0 G.P.A.”
But to David Jones, Ph.D., the associate dean of admissions at the University of Texas Health Science Center at San Antonio (UTSA), the Supreme Court has left the waters a little murkier. “The Michigan Supreme Court decisions—they’re really narrow interpretations. It comes under the banner of affirmative action, but to us, it’s much more narrow.”
Like UTMB, UTSA has been using a policy of considering socioeconomic diversity since the Hopwood decision. And Jones says the current system is working fine. “We’re talking about a much broader definition of diversity. The value that diversity brings to the medical education process to me is the different viewpoints, different backgrounds, socioeconomic differences bring to the classroom. It’s not just race….”
Jones says he’s not against the principles of affirmative action, but he thinks such a politically charged concept can get in the way of the admissions process.
But Perez says schools that have been legally prevented from using affirmative action should change their policies now. “This is not just the law of the land, it’s good [policy].… Does it mean that sometimes race may be the deciding factor? Yes, but that’s OK as long as it isn’t the deciding factor every time.
“I have always said advocating for diversity [is] most important in the health-care field because the lack of diversity there has life-and-death consequences,” he says.
Many other medical schools have been operating under affirmative action policies—whether they call them that or not—for years, having bought into the idea that a diverse medical profession will lead to better access to culturally competent care and fewer disparities. Jorge Girotti, Ph.D., came to the University of Illinois (UI) to serve as an associate dean and the director of admissions more than 20 years ago, just as the school was finishing a review of its admissions policies in the wake of the Bakke ruling. He’s in charge of selecting the 300 students out of 4,600 applicants who begin classes each year at UI’s four medical school campuses. He says the school had been responsible for years for the leadership role in educating the state’s physicians—not just in Chicago but in rural areas, too—so the goal of a diverse student body “was spelled out from the beginning.”
He says that between Bakke and Grutter, UI broadened its definition of underrepresented minorities to include more Hispanics and created an admissions policy that considers volunteer work, sports, arts activities, military service and academic achievement, as well as race, sometimes asking for clarification if the application check-off box for that category isn’t clear. “The Bakke case was very clear that race could be one consideration among many, and we’ve tried to do that,” he says. “Part of the issue was how to address [that] not every student came with the same academic qualification, but they had other qualities that were important to being a physician.”
The policy seemed to work under old case law, and Girotti says it has never been challenged. “Because of our track record in terms of enrollment and because of our size, I’ve always felt we could be an easy target.” The school has matriculated about 20 percent underrepresented minorities, and 11 percent of last fall’s incoming class is Hispanic, and 8 percent is black.
UI has reviewed and tweaked its policy over the years, especially to consider issues of disadvantage rather than pure race and ethnicity, when in the mid-’90s California passed its Proposition 209, which banned the use of race in state school admissions, and the Hopwood case was decided.
A key point in the Grutter ruling, Perez says, is that periodic reviews of admissions policies should eventually lead to a point where race-conscious decisions are no longer necessary. The Supreme Court expects affirmative action won’t be needed 25 years from now, but many say that’s difficult to believe. And some schools are still trying to get a handle on what the case means for them. Cathleen Kearns, a spokeswoman for the American Association of Colleges of Osteopathic Medicine, says that for many of the 20 osteopathic institutions, “I just don’t think the schools have worked through it yet.”
For those still mired in confusion, Perez has some suggestions. “You will not move the ball forward without leadership at your schools. You need the legal advice we’re giving you, but the places that are doing it well are those where it comes from the top.”
Thomas would agree, crediting UTMB’s leadership with progress made on the issue, while some Texas schools have not budged from prior policies.
Once the leadership is on board, there are some guidelines to follow beyond the justices’ opinions. Perez points to the set of guidelines released by the AAMC in October, which he helped develop. He also suggests the legal analysis from the Civil Rights Project at Harvard University. While not geared specifically to medical schools, he says the document is helpful to any school refining its policies.
The Institute of Medicine also recently weighed in on the subject, publishing a set of recommendations—some of which reflect the Supreme Court’s directives—for health professions schools to increase diversity on their campuses. “There are still many [schools that] don’t seem to do an appropriate balancing of the qualitative and quantitative considerations [in admissions],” says Judith Winston, a lawyer who sat on the committee that drafted the recommendations.
WHAT THE CASE WON'T SOLVE
Martin Michaelson, a partner at the Washington, D.C., law firm Hogan and Hartson, says the Grutter and Gratz rulings probably represent the “high water mark regarding affirmative action,” and he expects the next consequential rulings to come from lower federal courts during the next two to five years.
Court challenges could be aplenty, as affirmative action remains a contentious issue. (See “Do You Agree With Affirmative Action?” at left.) There are many people who think policies that consider race in any way are wrong and hurt both whites and Asians—so-called overrepresented minorities—in the admissions process.
Roger Clegg, general legal council for the Center for Equal Opportunity, works to block any use of racial consideration in education and employment issues. “You shouldn’t assume that because a student has black skin that they come from the ghetto. Diamonds in the rough come in all colors. There are more poor whites than there are poor African-Americans,” he says, adding that when you look at percentages, the opposite is true. “If you buy into this notion of underrepresentation, then that means there’s such a thing as overrepresentation,” which leads to increased tensions among different racial and ethnic groups.
But Thomas, who is black, says accepting more minorities into medical school not only increases the number of physicians who will go to the inner cities, barrios and reservations to practice, but it will increase the number of minority physicians who will serve in academic medicine as mentors. “You want people like me educated, because look at what I bring to the table. I don’t just look out for minority students. I look out for everyone.”
Without realizing it, Thomas’ argument that she cares for everyone could be making the case for Clegg, who says that membership in a certain racial or ethnic group does not eliminate the ability to care for others outside of that group. “In many cases, cultural competency can be taught,” he says.
Given the tensions that affirmative action provokes, Perez calls ballot initiatives the biggest threat to current law. The Michigan Civil Rights Initiative—which is headed by Jennifer Gratz, the plaintiff in the Michigan undergraduate case—launched a petition drive in January to place a question on the November ballot that would prevent Michigan public universities from making decisions based on race, ethnicity or gender. Perez suggests schools that want to fight these kinds of initiatives should collaborate with civil rights groups advocating diversity.
Institutions can also guard against challenges by increasing the amount of research about minority physicians and to whom and where they provide care, he says. “There remains a paucity of empirical data that having diversity in your medical school will help with cultural competence. [While it] absolutely makes sense, you can’t simply rely on ‘It just feels good to me.’”
Regardless of what position you take on the affirmative action issue, even advocates say they don’t see the Supreme Court ruling making an impact on the numbers of minorities matriculating into medical school—the real effects will be felt at the undergraduate levels. It’s a pipeline issue, they say.
At UTMB, Thomas says she doesn’t see the numbers of matriculating minorities going above 30 percent because of a lack of qualified applicants. In the UT system, in which all the medical schools compete for the same applicants, the number of Hispanic applicants increased 7.5 percent this year, but the number of those accepted remained steady, Jones says.
Dr. Kenneth Edelin, the associate dean for student minority affairs at Boston University School of Medicine, runs a program to combat this very problem. “Don’t forget public schools are funded by state taxes and real estate taxes, so if you live in a poor neighborhood, you won’t have some of the same opportunities,” he says. “There are minority students who graduate [high school] without ever taking a lab. Wow! So they get to college, and they’re taking labs for the first time.” He says the percent of students interested in medicine as a career is higher among minorities than whites, but because science courses become so challenging at the college level, by sophomore year many have changed their minds.
Looking around that first-year classroom, it’s difficult to imagine how any of those 100 students would have gotten there without exposure to labs and a quality education. And who knows where everyone will go to practice, or even if they’ll all graduate. But in her written opinion of the Grutter case, O’Connor clearly thinks the opportunity to get there should be open to all those up to the challenge. “In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity. All members of our heterogeneous society must have confidence in the openness and integrity of the educational institutions that provide this training.”
How schools craft that “openness and integrity” appears to remain an ongoing challenge, no matter what the courts may say.
Jennifer Zeigler is a senior writer with The New Physician. Direct questions and comments about this article to tnp@ amsa.org.