Excerpted From: Justin Cole and Gregory Curfman, Back to Bakke: The Compelling Need for Diversity in Medical School Admissions, 22 Yale Journal of Health Policy, Law & Ethics 60 (2023) (190 Footnotes) (Full Document)


ColeCurfmanAt the end of June, the United States Supreme Court issued an opinion covering two cases implicating the use of affirmative action in undergraduate admissions policies: Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina. This opinion, authored by Chief Justice Roberts and joined by the five other members of the Court's conservative bloc, rejected the diversity rationale introduced in Regents of the University of California v. Bakke and affirmed in Grutter v. Bollinger as insufficient justification for affirmative action programs in university admissions. Dismissing diversity-related interests as “inescapably imponderable,” the majority “ma[de] clear that Grutter is, for all intents and purposes, overruled,” though Chief Justice Roberts appeared to stop short of expressly overruling Grutter. Because the outcome of Students for Fair Admissions is likely the end of affirmative action in higher education generally both undergraduate and graduate institutions--this Article will examine the consequences of the radically different legal landscape, focusing particularly on the effect on student admissions to medical schools in the United States and the downstream consequences for the physician workforce and the health care system more broadly.

This Article will proceed in five parts. Part I will return to Bakke, the landmark decision that had previously provided the foundation for affirmative action policies in universities across the country since it was decided over four decades ago. Part II will examine whether the controlling opinion in Bakke written by Justice Powell was rightfully viewed as precedent in Grutter. Part III will assess the weaknesses of Grutter and discuss how it was treated by the majority in Students for Fair Admissions. Part IV will then review the impact of Students for Fair Admissions on medical school admissions and the resulting racial and ethnic composition of the physician workforce. Part V will briefly conclude, discussing the paths forward now that the Court has forbidden universities from engaging in race-based admissions practices.

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The outcome of Students for Fair Admissions is disappointing, but it is largely not surprising to knowledgeable observers of the Court. Yet one notable instance in which the majority demonstrates at least some recognition of the potential consequences of this holding is footnote four in the majority opinion.

The United States as amicus curiae contends that race-based admissions programs further compelling interests at our Nation's military academies. No military academy is a party to these cases, however, and none of the courts below addressed the propriety of race-based admissions systems in that context. This opinion also does not address the issue, in light of the potentially distinct interests that military academies may present.

Certainly, there is much to criticize about this footnote, and Justice Jackson does so in a particularly astute and stinging manner. Yet this potentially leaves open, perhaps just a crack, contexts in which race-based admissions systems might present uniquely compelling interests that justify the continuation of affirmative action. Even if the Court deems diversity as presenting overly nebulous interests in the undergraduate context, the analysis presented herein makes clear that medical school interests are distinct--justifying the continued use of race-conscious admissions in medical schools, even in the wake of Students for Fair Admissions.

We acknowledge, though, that this is an unlikely prospect; the majority, after all, consistently refers to its analysis as encompassing higher education admissions programs generally and expressly identifies only military academies as having “potentially distinct interests.” So, for medical schools committed to educating a diverse physician workforce prepared to meet the health care needs of an increasingly diverse society, the stakes could not be higher, and there is no time to lose. Medical schools, and all institutions of higher learning, must begin to prepare alternative strategies to ensure an education system that promotes racial diversity. Richard Kahlenberg, who served as an expert witness on behalf of Students for Fair Admissions, has noted that universities prohibited from using race-conscious admissions systems “have adopted an array of progressive policies that indirectly promote racial diversity,” including “increas[ing] financial-aid budgets, tak[ing] top-ranking students from high schools in poor communities, dropp[ing] the use of legacy preferences, and increas[ing] admission of students who transfer from community colleges. Others have proposed the increased use of pathway programs, or partnerships between a medical school and an undergraduate institution that prepare underrepresented pre-medical school students to become competitive applicants, and incorporating mentorship structures for potential medical professionals. Importantly, many of the members of the Students for Fair Admissions majority seem open to these types of strategies. While these may be imperfect solutions for ensuring that underrepresented minority students continue to have the opportunity to matriculate at institutions of higher learning, such institutions must begin contemplating how to attain diverse student bodies immediately. The wealth of our economy, the health of our citizens, and the soul of our country are at stake.

Justin Cole is a 2023 graduate of Yale Law School. He completed this work entirely while he was a student at Yale Law School.

Gregory Curfman is a physician and the executive editor of the Journal of the American Medical Association (JAMA). Both authors were affiliated with the Solomon Center for Health Law and Policy at Yale Law School during the writing of this Article.