The U.S. Supreme Court’s (SCOTUS) recent ruling that race cannot be a factor in college, medical, and nursing school admissions was, if nothing else, tone-deaf.1 The ruling came in the simmering aftermath of a three-year pandemic that exposed widespread inequity in healthcare, and gave rise to the perception of “institutionalized racism” in medicine.
Needless to say, the high court’s ruling was not well received by healthcare leadership, including Tania Bubb, PhD, RN, CIC, FAPIC, president-elect of the Association for Professionals in Infection Control and Epidemiology (APIC).
“APIC is in the process of developing an academic pathway to create avenues for people of all backgrounds to enter the field of infection prevention [IP],” says Bubb, who is director of infection control at Memorial Sloan Kettering Cancer Center in New York City. “While this ruling willfully ignores challenges experienced by underrepresented minorities in attaining higher education, APIC is prepared to partner with higher education institutions that are committed to ensuring underrepresented minorities are reached. We remain committed to workforce diversity, equity, and inclusion, and health equity for all.”
The APIC IP Academic Pathway has differing entry points, including internship, certificate, bachelor’s, and master’s degree programs. In addition to this effort, APIC has formed a Health Inequities and Disparities Taskforce, a formal group that will explore areas such as possible racial and ethnic disparities in patients who acquire healthcare-associated infections (HAIs).
The Centers for Disease Control and Prevention’s (CDC) HAI surveillance system currently does not require reporting of ethnicity and race, listing them as optional fields of information. APIC is trying to get that changed, urging the CDC’s National Healthcare Safety Network (NHSN) to add racial and ethnic demographics to HAI surveillance. Reporting patient outcomes by race is one of the early priorities in a sweeping 10-year plan by the Centers for Medicare and Medicaid Services (CMS) to “leverage quality improvement and other tools to ensure all individuals have access to equitable care and coverage.”2
In combined cases involving Harvard and the University of North Carolina, the high court ruled on June 29, 2023, that the schools’ poorly defined race admission policies fail to comply with the Equal Protection Clause — the concept that a governmental body may not deny people equal protection under its laws.
Reversal of Fortune
The ruling certainly runs counter to the general perception that affirmative action for providers and healthcare equity for patients were critical areas of focus after the pandemic revealed the considerable divide between “the haves and the have-nots.”
For example, Black women have nearly triple the pregnancy-related mortality rates as white women (41 deaths per 100,000 live births vs. 14 deaths per 100,000 live births for white women.)
“[The] Supreme Court decision is a direct blow to people of color across the United States, who are already at risk of poor health outcomes,” the American College of Obstetricians and Gynecologists said in a statement.3 “We know that racial diversity in healthcare literally saves lives: research and experience have shown time and time again that disparities in health outcomes decrease when patients are treated by healthcare professionals who have learned and worked alongside colleagues of different racial and ethnic backgrounds.”
Indeed, in an extraordinary gesture last year, the American Nurses Association (ANA) apologized for past discrimination against Black nurses in a statement of “racial reckoning.” A telling 1939 anecdote included in the ANA statement involved Estelle Osborne, RN, BS, MS, president of the National Association of Colored Graduate Nurses (NACGN). She was invited by ANA President Julia C. Stimson, RN, to meet with ANA’s Advisory Council to discuss the status of Black nurses in the profession.
“The site of the meeting was the St. Charles Hotel in New Orleans, where Black guests were required to use the service entrance and freight elevator,” the ANA states.4 “President Osborne called on ANA and President Stimson to adamantly protest this discrimination. Instead of protesting the discriminatory policy, President Stimson offered to enter the hotel with President Osborne through the service entrance. In the end, President Osborne decided against attending and ANA failed to step into a space of advocacy and support.”
Saying it was “appalled” by the SCOTUS ruling, the ANA emphasized that the court ignored the reality of inequality and discriminatory policies. “Inevitably this decision will impact the admissions process for schools of nursing, a necessary pipeline for diversity within the profession to provide culturally competent and equitable healthcare,” the ANA said in a statement.5 “Race-conscious admissions and affirmative action were intended to be a small part of a broader solution to mitigate harm, which continues to be perpetuated on marginalized and disadvantaged groups. ANA will continue to call on Congress, policymakers, and healthcare leaders to reject any legislation or policy that seeks to reverse progression toward diversity, inclusion, equality, and equity.”
The ANA said the decision “signals the continuation of systemic and structural racism, which has inflicted generational discriminatory trauma in terms of lack of access and academic and professional advancement.”
Although it certainly is intuitive, improved patient outcomes as the result of a diverse healthcare workforce can be difficult to establish in an irrefutable manner. One oft-cited study in the literature is a meta-analysis of 25 studies looking at the effects of increased diversity in the healthcare workforce.6
The benefits the researchers found of having a racially/ethnically diverse healthcare workforce include:
• expanding minority patients’ access to healthcare and improving their outcomes;
• improving the overall quality of care through higher levels of patient satisfaction and trust;
• enhancing cultural competency by improving patient-provider relationships and communication. A greater trust is engendered because of race and language concordance, and the overall influence minority providers exert on their white colleagues.
A 2020 study found “an increase in racial and ethnic groups in nursing to 20%, but this is still short of the 37% of the U.S. population that are considered to be racial and ethnic minorities. Unfortunately, there continues to be barriers to diversity in nursing education.”7
The SCOTUS ruling has been compared to the Dobbs decision to limit or outlaw abortion in terms of toppling decades of established law.8
Bad Medicine
Jesse Ehrenfeld, MD, MPH, president of the American Medical Association, emphasized that a diverse physician workforce is the key to eliminating racial inequities. “There is convincing evidence that racially diverse care teams produce measurably positive health outcomes for patients in historically marginalized populations,” he stated.9 “Eliminating health inequity requires more commitment to, investment in, and support for Black, Latinx, and Native American and Indigenous communities, and LGBTQ+ people. Yet, today’s ruling undermines policy that was producing positive results and improving the health of our patients, as well as making all physicians better practitioners. This ruling is bad for healthcare, bad for medicine, and undermines the health of our nation.”
Although some make the argument that diversity in general improves patient outcomes, another study found that access to Black primary care providers (PCPs) was directly associated with improved survival-related outcomes for Black patients.
“Greater Black PCP representation levels were associated with longer life expectancy and were inversely associated with all-cause mortality rates for Black individuals,” the authors concluded.10
In an accompanying editorial, Monica Peek, MD, MPH, MSc, of the University of Chicago Center for the Study of Race, Politics, and Culture, found the study compelling and urged efforts to get more Black physicians in practice.
“Given the extraordinary association between Black PCP representation and population outcomes for Black communities, it should be a national priority to ensure that Black populations in the U.S. have access to Black PCPs,” she emphasized.11
This issue certainly is not purely academic; indeed, it is existential. On Jan. 22, 2022, white nationalists and neo-Nazis stood in front of Brigham and Women’s Hospital in Boston holding a long makeshift sign that read, “B and W Hospital Kills Whites.” Brigham hospital clinicians are conducting research to create more equity in healthcare delivery and treatment, in this case looking specifically at cardiology patients.
To be clear, diversity advocates say this is a tide that lifts all boats: improving care for minority patients does not equal less care for white patients.
Legal Jujitsu
In invoking the Equal Protection Clause, Chief Justice John Roberts, who wrote the majority opinion, did a kind of legal jujitsu move, telling advocates for affirmative action that their quest for justice does not extend to other groups who may be subjected to discrimination.
“For starters, the [applicants] categories are themselves imprecise in many ways,” Roberts wrote. “Some of them are plainly overbroad: by grouping together all Asian students, for instance, respondents are apparently uninterested in whether South Asian or East Asian students are adequately represented, so long as there is enough of one to compensate for a lack of the other. Meanwhile other racial categories, such as ‘Hispanic,’ are arbitrary or undefined. And still other categories are underinclusive.”
This tactic of turning the colleges’ affirmative action advocates for historically repressed minorities into “discriminators” against other groups was legally effective.
“When asked at oral argument how applicants from Middle Eastern countries are classified, “[such as] Jordan, Iraq, Iran, [and] Egypt,’” Roberts noted, “UNC’s counsel responded, ‘[I] do not know the answer to that question.’”
Moreover, if the goal is diversity, there is “no reason why seeking a diverse society would not be equally supported by admitting individuals with diverse perspectives and backgrounds, rather than varying skin pigmentation,” Roberts ruled.
He also did not buy the “tide lifting all boats” analogy, seeing admissions as a zero-sum game where every winner creates a loser.
“College admissions are zero-sum, and a benefit provided to some applicants but not to others necessarily advantages the former at the expense of the latter.”
Reviewing court decisions that go back decades, Roberts found that affirmative action programs clearly were intended to have an endpoint, yet neither Harvard nor UNC have set one. “We have permitted race-based admissions only within the confines of narrow restrictions,” he said. “University programs must comply with strict scrutiny, they may never use race as a stereotype or negative, and — at some point — they must end. Respondents’ admissions systems — however well-intentioned and implemented in good faith — fail each of these criteria. They must therefore be invalidated under the Equal Protection Clause of the Fourteenth Amendment.”
The decision to admit a student can be based on the “quality of character or unique ability that the particular applicant can contribute to the university,” Roberts wrote. “Many universities have for too long wrongly concluded that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned, but the color of their skin. This nation’s constitutional history does not tolerate that choice.”
‘Let Them Eat Cake’
A scathing dissenting opinion written by Justice Ketanji Jackson said, “With let-them-eat-cake obliviousness, today the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat. But deeming race irrelevant in law does not make it so in life.”
Jackson recused herself from commenting on the Harvard case because of a past affiliation there but joined the dissenting opinion in the UNC companion case. In the race ruling, the Supreme Court has “detached itself from this country’s actual past and present experiences,” Jackson wrote. “No one benefits from ignorance.”
For example, the ruling fails to acknowledge the well-documented “‘intergenerational transmission of inequality’ that still plagues our citizenry,” she said. Because of denied loans for homes and cars, Black people were largely left out of a period of great wealth accumulation in the United States between 1930 and 1960.
“[During this period], fewer than 1% of all mortgages in the nation were issued to African Americans,” Jackson said. “For present purposes, it is significant that, in so excluding Black people, government policies affirmatively operated — one could say, affirmatively acted — to dole out preferences to those who, if nothing else, were not Black.”
In a dissenting opinion on the overall ruling against both colleges, Justice Sonia Sotomayor said, “The Court subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society. Because the Court’s opinion is not grounded in law or fact and contravenes the vision of equality embodied in the Fourteenth Amendment, I dissent. The devastating impact of this decision cannot be overstated.”
In closing, however, Sotomayor said essentially the genie is out of bottle on matters of equity and diversity. “Diversity is now a fundamental American value, housed in our varied and multicultural American community that only continues to grow,” she wrote. “The pursuit of racial diversity will go on. Although the Court has stripped out almost all uses of race in college admissions, universities can and should continue to use all available tools to meet society’s needs for diversity in education.”
REFERENCES
- Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, No. 20-1199, Supreme Court of the United States (June 29, 2023). https://s3.documentcloud.org/documents/23864004/students-for-fair-admissions-inc-v-president-and-fellows-of-harvard-college.pdf
- Centers for Medicare & Medicaid Services. CMS Framework for Health Equity 2022-2032. https://www.cms.gov/files/document/cms-framework-health-equity.pdf
- American College of Obstetricians and Gynecologists. ACOG statement on Supreme Court affirmative action ruling. Published June 29, 2023. https://www.acog.org/news/news-releases/2023/06/acog-statement-on-supreme-court-affirmative-action-ruling#:~:text=Washington%2C%20D.C.%20%E2%80%93%20The%20following%20is,risk%20of%20poor%20health%20outcomes
- American Nurses Association. Our racial reckoning statement. Published June 11, 2022. https://www.nursingworld.org/practice-policy/workforce/racism-in-nursing/RacialReckoningStatement/
- American Nurses Association. ANA responds to SCOTUS ruling against affirmative action programs. Published June 30, 2023. https://www.nursingworld.org/news/news-releases/2023/ana-responds-to-scotus-ruling-against-affirmative-action-programs/#:~:text=All%20members%20of%20society%20deserve,and%20discriminatory%20practices%20and%20policies
- LaVeist TA, Pierre G. Integrating the 3Ds — social determinants, health disparities, and health-care workforce diversity. Public Health Rep 2014;129 Suppl 2(Suppl 2):9-14.
- Stanford FC. The importance of diversity and inclusion in the healthcare workforce. J Natl Med Assoc 2020;112:247-249.
- Dobbs v. Jackson Women's Health Organization, No. 19-1392, Supreme Court of the United States (June 23, 2033). https://supreme.justia.com/cases/federal/us/597/19-1392/
- Ehrenfeld JM. SCOTUS affirmative action ruling “undermines the health of our nation.” American Medical Association. Published June 29, 2023. https://www.ama-assn.org/press-center/press-releases/scotus-affirmative-action-ruling-undermines-health-our-nation
- Snyder JE, Upton RD, Hassett TC, et al. Black representation in the primary care physician workforce and its association with population life expectancy and mortality rates in the US. JAMA Netw Open 2023;6:e236687.
- Peek M. Increasing representation of black primary care physicians — a critical strategy to advance racial health equity. JAMA Netw Open 2023;6:e236678.
The U.S. Supreme Court’s recent ruling that race cannot be a factor in college, medical, and nursing school admissions was, if nothing else, tone-deaf. The ruling came in the simmering aftermath of a three-year pandemic that exposed widespread inequity in healthcare, and gave rise to the perception of “institutionalized racism” in medicine.
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