Affirmative action: High court may rewrite med school admission policies

A ruling against considering race and ethnicity could hurt efforts to make the physician work force more diverse, professional organizations say.

By — Posted Sept. 24, 2012

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Medical schools say they have made significant strides enrolling and graduating racially and ethnically diverse students in recent years.

But a case before the U.S. Supreme Court could change how the schools weigh the characteristics of applicants and could hinder efforts to attract minorities to the profession.


Marc Nivet, EdD, AAMC chief diversity officer

On Oct. 10, justices will hear arguments in Fisher v. University of Texas at Austin, a case involving a white applicant to the undergraduate program who is challenging the constitutionality of using race in admission decisions.

Medical organizations voiced concern that a ruling for the plaintiff will fracture long-standing admission policies that consider race and ethnicity as factors. Overturning affirmative action practices could limit opportunities for minorities who want to enter medicine and negatively impact care for the nation's increasingly diverse population, the health professionals say.

“It's really important that our institutions are capable of having the most latitude in making admissions decisions,” said Marc Nivet, EdD, chief diversity officer for the Assn. of American Medical Colleges. “In this case, if there's a restriction on the utilization of race and ethnicity as one factor of many, it restricts our ability to look at all areas of an individual's background. … One of the things we know is having a diversified class helps in the education process and helps build culturally competent physicians.”

The AAMC and more than 25 health and education organizations, including the American Medical Association, filed a joint friend-of-the-court brief urging the Supreme Court to uphold the use of race as part of a holistic review of candidates. The brief said the key to eliminating health disparities is developing a diverse work force to bridge differences between health professionals and patients.

In 2010, 4% (37,833) of the nation's physicians were black, and 5% (51,367) were Hispanic, according to AMA data. Whites accounted for 55% (545,481) of doctors, 14% (137,192) were Asian, and fewer than 1% (1,836) were Native Americans or Alaskan Natives. About 200,000 physicians did not report their ethnicity, AMA data show.

In 2011, 7% (3,215) of medical school applicants were black, 8% (3,459) were Hispanic and 20% (8,941) were Asian, the AAMC said. Native Americans, Native Hawaiians and other Pacific Islanders made up fewer than 1% (185) of applicants. The AAMC said the number of minority medical school graduates is increasing steadily, although the figures are still low compared with the population at large.


Rahn K. Bailey, MD, National Medical Assn. president

For example, black medical school graduates increased by 4% from 1,087 in 2002 to 1,129 in 2011. Hispanic graduates rose by 39% (959 to 1,336 during the same period). Asian graduates increased by 24% (3,042 to 3,767). The total number of medical school graduates in 2002 was 15,676. There were 17,364 in 2011.

Minorities make up 36.6% of the U.S. population, according to 2010 U.S. Census Bureau figures. By 2050, non-Hispanic whites will make up less than 50% of the population for the first time, the Census estimates.

“If you contrast [the graduates] against the population, the question is, are we getting all of the talent from those populations that exist?” Nivet asked.

With the Affordable Care Act bringing millions of previously uninsured patients to doctors' offices, the need for minority doctors will grow, said Elena Rios, MD, president and CEO of the National Hispanic Medical Assn.

“We have tremendous needs in health care delivery to minority communities, and with the ACA, there will be greater demand for services,” she said. Minorities “are underrepresented in the health professions. Affirmative action is needed due to the disadvantaged education and lack of role models in [many] of their families.”

Interpreting equal protection

In the case before the U.S. Supreme Court, Abigail Fisher sued the University of Texas at Austin after she was denied admission in 2008. She claimed that the university's admission policies discriminated against her on the basis of race and violated her equal protection rights.

Fisher lost at the district and federal court levels. An appeals court was divided 2-to-1 in favor of the university's policy. She appealed to the Supreme Court, and the court accepted the case.

Race and ethnicity are among several “special circumstances” the university examines before making enrollment decisions, said Kedra Ishop, UT director of admissions. By law, 75% of the university's students must come from those graduating at the top 10% of their high school classes, and 90% of the spots must go to Texans, she said. At the time of Fisher's case, 81% of the university's students came from the top 10% of their high school classes.

Students vying for the remaining spots are measured on resumes, essays, honors, work experience and extracurricular activities. Similar to medical schools, characteristics such as race and ethnicity are considered during a holistic review of students' backgrounds, Ishop said.

An attorney for Fisher declined to comment for this article.

The fact that the Supreme Court is hearing the case may mean that justices are considering overturning affirmative action policies, said David Goldstein, a Minnesota-based employment attorney. He co-wrote a friend-of-the-court brief for the American Assn. for Affirmative Action in support of the university.

In a similar challenge in 2003, the Supreme Court upheld using race and ethnicity in admission decisions. Justices said the University of Michigan Law School's use of race in admission decisions was not prohibited by the Equal Protection Clause.

“The court clearly said you could look at race or ethnicity as part of a holistic consideration of a candidate,” Goldstein said of the 2003 ruling. “It's very surprising that they even accepted the Texas case for review, because there is a Supreme Court precedent that's not very old. [We] think it's a signal there are a number of judges looking to overrule” the previous decision.

The first major ruling on affirmative action in higher education came in 1978. Allan Bakke sued the University of California, Davis School of Medicine after being denied admission.

Justices ruled that Bakke should be admitted to the university and that a quota system for minorities was unconstitutional. However, the court approved the concept of considering race and ethnicity in admissions.

In the nearly 35 years since the Bakke case, medical schools across the country have implemented and refined methods for evaluating applicants based on the court's decision and subsequent rulings on the issue.

But colleges should be prevented from weighing the race of college applicants, said Joshua Thompson, a staff attorney for the Pacific Legal Foundation, a conservative public interest law firm in California.

“The government should not treat people differently based on something as insignificant as skin color,” he said. “It's written into our Constitution. From a societal standpoint, it stigmatizes people and fails to consider the individuality of persons.”

Arguing for diversity

Learning in a diverse environment is beneficial for minority and nonminority doctors alike, said Elizabeth Wiley, MD, MPH, national president of the American Medical Student Assn., which joined the AMA's brief.

“My medical school was quite diverse,” said Dr. Wiley, who is white and graduated from George Washington University School of Medicine and Health Sciences in Washington. That “certainly had value in terms of gaining exposure from different cultural norms. There were situations in which my classmates really served as a learning resource.”

Creating a physician work force that mirrors society also improves quality and accessibility of health care, said Rahn K. Bailey, MD, president of the National Medical Assn., which represents black physicians.

“Patients should have the opportunity to choose providers and doctors from all backgrounds,” he said. “Barriers and cultural impasses between provider and patients” can prevent patients from visiting the doctor.

He added, “This has nothing at all to do with academics, but a lot to do with the individual, language or cultural differences.”

The AMA supports the ability of medical schools to consider applicants' race and ethnicity as one of many personal attributes during the admission process, said AMA President Jeremy A. Lazarus, MD.

“Inhibiting medical school admission decisions would undermine a pipeline of well-trained physicians from all backgrounds,” Dr. Lazarus said in a statement. “We support increasing the number of underrepresented minority physicians to help create a more diverse pool of physicians with the ultimate goal of ending racial and ethnic health care disparities.”

Test scores alone do not provide sufficient information about character, disposition or other traits such as empathy and potential for professionalism, Nivet said.

“Medicine, above all else, is a healing profession, and thus the acceptance to medical school is a privilege, not a right,” he said. “Ensuring we have students from all walks of life … is part of our responsibility to ensure we have a physician work force [in the] best position to improve the health of all.”

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Affirmative action cases affecting med schools

Courts generally have upheld admission policies that take race and ethnicity into consideration.

Fisher v. University of Texas at Austin, decided January 2011

Abigail Fisher, a white applicant, sued the University of Texas at Austin after being denied admission. She claimed that the university's admissions policies discriminated against her on the basis of race. The 5th U.S. Circuit Court of Appeals affirmed the policy's constitutionality. An appeal is pending before the U.S. Supreme Court.

Grutter v. Bollinger et al., decided June 2003

Barbara Grutter, a white applicant, sued the University of Michigan Law School over its use of race in admission decisions. She said the school's policies violated her 14th Amendment rights. The U.S. Supreme Court allowed the university to use race as one factor in the selection of students, but it struck down another approach used by the school that was more closely tied to race.

Cheryl J. Hopwood et al. v. Texas, decided March 1996

Four white plaintiffs said the University of Texas School of Law's admission policy violated their equal protection rights. The policy included race as a factor in admissions. The 5th U.S. Circuit Court of Appeals struck down the policy as unconstitutional, preventing Texas schools from considering race. The ruling ultimately was overturned by the Grutter decision.

Regents of the University of California v. Bakke, decided June 1978

Allan Bakke, a white California man, sued what is now the University of California, Davis School of Medicine after being denied admission. He alleged discrimination on the basis of race because the university reserved spaces for minority students. The U.S. Supreme Court found that the university's quota system for minorities was unconstitutional, but justices approved the general concept of using race in admission decisions.

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External links

Fisher v. University of Texas at Austin, U.S. Supreme Court docket (link)

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