I. Brief History of Segregation and Discrimination in Health Care

A. Legal Responses to Disparities in Health Care

 Literature in a variety of disciplines effectively documents existing racial and ethnic disparities in health care treatment and health status. David Barton Smith's classic work, Health  Care Divided: Race and a Healing Nation, describes the history of a racially divided health  care system in the United States and efforts during the middle of the 20th century to remove barriers impeding equal access to health  care facilities and providers. Smith identified three challenges confronting civil rights-era efforts to end disparities in health care: ending overt Jim Crow practices that segregated patients by race; eliminating more subtle forms of segregation based on physician referral practices, insurance status, and residential location; and assuring nondiscriminatory treatment in integrated settings. His work documents that the federal government played an important, but diminishing role in addressing these challenges. These efforts began in 1948 with the executive orders by President Harry Truman that ended racial discrimination in federal employment and segregation in the armed services. These orders were applied to Veterans Administration (VA) hospitals and other federal facilities. As a result, by the time the Supreme Court decided Brown v. Board of Education in 1954, the VA hospitals no longer provided any accommodations segregated by race. Beginning in 1961, the Kennedy administration increasingly conditioned federal grants to medical schools, and the hospitals they operated, on a requirement of desegregation.

 The vast majority of private hospitals were not subject to this federal financial pressure until the enactment of Medicare. For example, the Hill-Burton Act, providing federal matching funds for hospital construction, expressly permitted the construction of racially segregated facilities. This provision was successfully challenged after the Brown decision. Title VI of the Civil Rights Act prohibited organizations receiving federal funds from discriminating on the basis of race, color, or national origin. The creation of the Medicare program gave the federal government the opportunity to enforce Title VI against hospitals and in other contexts where discrimination continued. As David Barton Smith notes, hospitals were now pressured to desegregate in order to receive federal funds--hospitals had the choice of pursuing “affluence through compliance and bankruptcy.” Enforcement of Title VI through the Medicare program had the impact on hospitals and other institutional providers that the Brown decision had on public schools. Within four months, more than 1,000 hospitals integrated their medical staffs, waiting rooms, and hospital floors. Integration of blood supplies and hospital room assignments followed.

  Since the period at mid-century when the federal government led the effort to desegregate hospitals at the inception of the Medicare program, civil rights enforcement actions in health care settings have been sporadic and anemic. After ending the most obvious forms of discrimination by outlawing segregated facilities and services, the forms of discrimination became more subtle; certain legal interpretations of the civil rights laws also made pursuing violations more difficult.

 David Smith points out that “[j]ust as with public schools, patterns of geographic residential segregation continued to contribute to segregation and the resulting disparities in health care.” Primary care is more separate and more unequal than hospital care. Disparities in this area may contribute to disparities in referrals for diagnostic and other specialized services. Relocations of hospitals from urban areas to suburban locations provide evidence of the same element of “white flight” experienced in public education. While federal resources helped eliminate discrimination during the civil rights era, cost controls instituted in those same federal programs may have exacerbated discrimination and disparities.

 As in public schools, legal interpretations have erected barriers to addressing discrimination in health care and the resulting disparities. For example, in 1963 the Department of Health, Education, and Welfare exempted physicians participating in Medicare from complying with Title VI. Part B of the Medicare program, which covers physician services for beneficiaries, was defined as a “contract of insurance” between the beneficiary and the government instead of a direct grant of federal funds to the physician. In Alexander v. Sandoval, the Supreme Court ruled that no private right of action is available for claims alleging disparate impact of facially neutral policies and practices. Only federal agencies are able to bring disparate impact claims. Numerous commentators and scholars have noted that given the limited enforcement capabilities and inclinations of the Office of Civil Rights, this interpretation of Title VI imposes a significant limitation on its utility in reaching discriminatory practices.

B. Legal Responses to Segregation in Public Education: A Parallel Process

 It is helpful to view the problem of health care disparities in the context of a society in which segregation in public education persists despite significant use of litigation and other strategies to create a unitary, racially integrated, educational system. In 2004, the nation celebrated the 50th anniversary of the Supreme Court's decision in Brown v. Board of Education, the landmark case outlawing segregation in public education. The Brown decision had an immediate impact on the lives of many African Americans who were well-situated to take advantage of the expansion of opportunity it represented. Why has Brown, on the one hand, had this transformative impact, yet most children of color still attend schools in 2004 that are not racially diverse? The broad holding of Brown has certainly been adopted by society and culture, though racism still infuses all sorts of practices. The narrow holding--that public schools should be integrated--has failed to take hold. What accounts for this failure?

 Professor Erwin Chemerinsky explains how court decisions have been responsible for the resegregation of public schools. After Brown, Chemerinsky argues the federal courts became timid in actually imposing remedies that would have been effective in desegregating schools. He argues that federal courts failed: 1) to establish rigorous timetables for achieving desegregation; 2) did not permit interdistrict remedies to promote desegregation; 3) declined to identify education as a fundamental right or to mandate reform for school financing systems; and 4) ended desegregation orders prematurely before desegregation could be firmly institutionalized in communities.

 Dissenting in Milliken v. Bradley, Justice Thurgood Marshall identified the real reason desegregation matters:

  We deal here with the right of all children, whatever their race, to an equal start in life and to an equal opportunity to reach their full potential as citizens. Those children who have been denied that right in the past deserve better than to see fences thrown up to deny them that right in the future. Our nation, I fear, will be ill served by the Court's refusal to remedy separate and unequal education, for unless our children begin to learn together, there is little hope that our people will ever learn to live together. The Court's 1995 decision in Adarand Constructors, Inc. v. Peña made clear that federal racial classifications had to satisfy strict scrutiny, meaning that the classifications must serve a compelling governmental interest and be narrowly tailored to further the government's interest. This decision cast doubt on whether enhancing diversity could qualify as a compelling governmental interest. The Adarand decision also cast doubt on the continued vitality of Justice Powell's approval of the use of race as one of many factors in an admissions process.

 The Court seemed to settle these questions in a pair of 2003 cases, Grutter v. Bollinger and Gratz v. Bollinger. In Grutter, the Court determined that the race-conscious admissions policy used by the University of Michigan Law School advanced a number of compelling interests, including promoting cross-racial understanding, helping to break down racial stereotypes, enabling students to understand persons of different races, and developing skills necessary to function in an increasingly global marketplace. The Grutter Court also determined that Michigan Law School's use of race as a factor in a multi-faceted admission determination was narrowly tailored to serve the compelling interests identified. Justice Ginsburg's concurring opinion in Grutter accurately assessed the contemporary landscape for public education:

  It is well documented that conscious and unconscious race bias, even rank discrimination based on race, remain alive in our land, impeding realization of our highest values and ideals. As to public education, data for the years 2000--2001 show that 71.6% of African-American children and 76.3% of Hispanic children attended a school in which minorities made up a majority of the student body. And schools in predominantly minority communities lag far behind others measured by the educational resources available to them.

 However strong the public's desire for improved education systems may be. . . it remains the current reality that many minority students encounter markedly inadequate and unequal educational opportunities. Despite these inequalities, some minority students are able to meet the high threshold requirements set for admission to the country's finest undergraduate and graduate educational institutions. As lower school education in minority communities improves, an increase in the number of such students may be anticipated. From today's vantage point, one may hope, but not firmly forecast, that over the next generation's span, progress toward nondiscrimination and genuinely equal opportunity will make it safe to sunset affirmative action.

 The apparent doctrinal certainty of Grutter was not long-lived. The Supreme Court's 2007 decision in Parents Involved in Community Schools v. Seattle School District No. 1 has made the path to achieving Brown's promise more obscure. In Parents Involved, a five-to-four majority held that public school districts that had not operated legally segregated schools or had operated schools found to be unitary may not choose to classify students by race and rely upon that classification in making school assignments to create diverse schools. The opinion rejected the notion that desegregation plans can be used to address the consequences of societal discrimination such as racially identifiable housing patterns. Stating that racial balancing, racial diversity, and integration cannot be independent goals, the Parents Involved Court relied on Milliken and Swann v. Charlotte-Mecklenburg Bd. of Education to conclude that “[e]ven in the context of mandatory desegregation,” to remedy a constitutional violation, “racial proportionality is not required.” In the part of the opinion in which a plurality joined, the Court concluded that the two school districts had not advanced any compelling state interest in using race as one factor in school assignments. Despite reaching this conclusion, the Court went on to discuss how the districts had failed to show that race-based classifications were necessary to achieve their goals of achieving diversity in the schools. The Court inferred from the minimal impact of the race-based factors on school assignments that other means not based on race would be effective to achieve the districts' goals. In addition, the Court expressed doubts about whether the two school districts had sufficiently considered alternatives to satisfy the narrow tailoring aspect of the strict scrutiny analysis.

 In a lengthy dissent, Justice Breyer, who was joined by Justices Stevens, Souter, and Ginsburg, argued that the school desegregation plans resembled “local efforts to bring about the kind of racially integrated education that Brown. . .long ago promised--efforts that [the] Court has repeatedly required, permitted, and encouraged local authorities to undertake.” In addition, he noted that the Court had approved plans “no less race-conscious than the plans” adopted in Seattle and the Louisville metropolitan area. He concluded by asserting that “[t]o invalidate the plans under review is to threaten the promise of Brown.” Justice Stevens joined Justice Breyer's dissent, but wrote separately to express his view that the three-tiered approach to equal protection analysis is flawed and to state his “firm conviction that no Member of the Court that I joined in 1976 would have agreed with today's decision.”

  Justice Kennedy wrote an opinion concurring in part and concurring in the judgment. Unlike the plurality, he would have held that diversity, appropriately defined and described, “is a compelling educational goal a school district may pursue.” He took issue with “an all-too-unyielding insistence that race cannot be a factor” in addressing “the problem of de facto resegregation in schooling” expressed in the Chief Justice's plurality opinion. Justice Kennedy termed as aspirational Justice Harlan's statement in dissent in Plessy v. Ferguson that the Constitution is “color-blind,” stating that “[i]n the real world, it is regrettable to say, it cannot be a universal constitutional principle.” Nevertheless, Justice Kennedy agreed with the conclusions of the opinion by the Chief Justice that the local school districts in this instance had not satisfied their burden of showing a compelling interest and that the uses of race be narrowly tailored.

 Even though Justice Kennedy provided the fifth vote to invalidate the Seattle and Louisville school assignment programs, his reasoning kept the notion that race-based programs have constitutional validity alive, albeit on life support. The opinion by the Chief Justice undermines the doctrinal support for race-based affirmative action programs endorsed in Grutter and Gratz only a few short years ago.

C. The Way Forward

 The attempts to address racial disparities in health care and in education relying on antidiscrimination law have followed parallel courses. In both fields, bold pronouncements and early progress were displaced by less energetic enforcement and legal doctrines that have impeded forward movement. As the specific promise of equality in public education offered in the landmark ruling of Brown remains unrealized, the promise of equality also remains unmet in the health care setting.

 These developments that have frustrated the efficacy of legal remedies call for reinvigorated or new responses to the problem of racial and ethnic disparities in health care. One approach would be for the Office for Civil Rights in the Department of Health and Human Services to actively pursue enforcement actions to address discrimination in the delivery of health care services financed by federal program funds. Vigorous state enforcement of state antidiscrimination law also offers promise to address discriminatory practices in the delivery of health care services. The NASI Report recommends that the Department of Health and Human Services reexamines its interpretation excluding physicians and other providers under Part B of the Medicare program from the reach of Title VI of the Civil Rights Act. Congress could enact legislation overruling the Supreme Court's decision in Alexander v. Sandoval, making clear that private litigants may bring disparate impact claims under Title VI. Finally, one commentator has suggested that the federal government use its ability to enforce the Civil False Claims Act to address the failure of providers to comply with Title VI in federal health care programs.

  In the long term, the above-described strategies to reinvigorate enforcement of the civil rights laws to address discrimination and disparities in the provision of health care services may hold promise. Federal and state agencies changing enforcement strategies, or Congress or state legislatures taking action to strengthen civil rights statutes in the short term, however, seems unlikely. In addition, discrimination addressable by civil rights enforcement may account for only part of the health care disparities problem. In the face of these legal and practical obstacles to civil rights enforcement, action by states and local governments through program change may offer the greatest short-term promise to address health care disparities. The Massachusetts Health Care Reform proposal is one such state initiative that has the potential to make an impact on racial and ethnic disparities in health care.