A. Setting the Stage for Judicial Recognition of the “Health Care Access” Rationale for Race-Conscious Admissions and Recruitment Practices
In the more than twenty-five years since the Bakke decision, courts and commentators have focused almost exclusively on Justice Powell's articulation of the diversity rationale and his discussion of the contours of a narrowly tailored admissions policy. Virtually no attention has been given to another rationale that the state articulated to support the policy at issue in Bakke. The Court noted in Bakke that one rationale articulated by the university to support its program was “increasing the number of physicians who will practice in communities currently underserved ....”
The Court's discussion of this rationale was quite brief, but very instructive: Petitioner identifies, as another purpose of its program, improving the delivery of health-care services to communities currently underserved. It may be assumed that in some situations a State's interest in facilitating the health care of its citizens is sufficiently compelling to support the use of a suspect classification. But there is virtually no evidence in the record indicating that petitioner's special admissions program is either needed or geared to promote that goal ....
Petitioner simply has not carried its burden of demonstrating that it must prefer members of particular ethnic groups over all other individuals in order to promote better health-care delivery to deprived citizens. *89 Indeed; petitioner has not shown that its preferential classification is likely to have any significant effect on the problem.
The Court did not dismiss this rationale out of hand. In fact, the Court noted that “in some situations,” a state's interest in increasing access to health care in underserved communities “is sufficiently compelling to support the use of a suspect classification.” The Court dismissed this rationale because there was a failure of empirical proof of a relationship between this goal and a special admissions program for certain minority students.
In the twenty-seven years since Bakke, a wealth of empirical data has emerged, demonstrating that increasing racial and ethnic diversity in the health professions will increase access to health care in underserved, minority communities and will increase access to health care for people with lower income and worse health status. Given the mountain of evidence documenting racial and ethnic disparities in health status, and the difficulties that minorities and low income populations have accessing health care, government in general and health professions schools in particular have a compelling need to identify and implement programs that will reduce disparities and increase access for communities of color. Race-conscious admissions programs will increase the number of minority health professionals, and this can reduce access gaps in minority communities.
The bulk of the empirical data is in the physician context. This data shows that minority physicians are:
• More likely to be in the primary care field;
• More likely to work in health care physician shortage areas;
• More likely to serve communities of color; and
• More likely to serve Medicaid patients.
