Against a corroding backdrop of social and environmental injustice, health inequity, book banning, revisionist history, belligerent gerrymandering for minority rule, and the retraction of voting rights, the American ideals of freedom, justice, and equality are getting further out of reach for so many. With that in mind, the U.S. Supreme Court did not have to hear SFFA, Inc. v. President & Fellows of Harvard University and SFFA, Inc. v. University of North Carolina at this time, but it did. What for decades has felt like progress was invariably met with reversal.1
Nobody specifically asked for affirmative action in lieu of true reparations for this nation's past sins. But driven by the ghosts of chattel slavery and race-based laws inflicting intergenerational disadvantage on African Americans, affirmative action was the federal government's attempt to pacify the “woke”, the dispossessed, and the angry – the convergence of those who demanded that America live up to the promise of its founding principles.2 It was as far as the moral arc of the government was willing to bend. Poorly defined it took on the mantle of achieving diversity, but also the stigmatizing misconception that any unqualified Black person could be unfairly advanced to fill jobs and be admitted into elite institutions of higher learning.
Citing the inability to reconcile with the equal protection clause of the 14th Amendment to the Constitution as the rationale for overturning established constitutional precedent, is as distasteful as the quoting of Dr. King out of context by a Fox News host. But to be fair, the respondents in both of these cases presented less than impenetrable arguments, rather fuzzy and untailored descriptions of their approaches to their admissions processes. They did not offer clear methods for measurement and evaluation of impact and success of their programs. There was no clear demonstration of the value of affirmative action beyond knowing that it is the right thing to do. And despite previous decisions that time-limited the policy's existence, they treated their defense of affirmative action like a late term paper, assuming that the court would grant an extension when Justice O'Connor in Grutter v. Bollinger clearly called for an eventual end to the policy. In 2003 at the end of the of the Grutter opinion, O’Conner wrote, “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” 3 Along with these shortcomings, oral arguments revealed a vague ignorance and unwillingness by the court to accept responses concerning "illegitimate stereotyp[ing]"challenging diversity of viewpoint. Were they not listening to the multiple times that the respondents said that race was only a single factor of consideration in their admissions processes? Consideration of other factors would allow for diversity of past experiences, exposures, and world viewpoints. Continuing with tone deafness, Chief Justice Roberts, in a passing remark, says, “We did fight a civil War to eliminate racial discrimination” - Really?
America has been tiptoeing around the 14th amendment since its ratification. It could have long ago gathered the courage to face its past and hold itself accountable for a proper repair to hundreds of years of brazen white supremacy. Content to swim in falsehoods, ignore and obfuscate the truth, there is still debate about whether and in what way slavery was at the root of the Civil War. When it was introduced as an order of the Executive Branch, affirmative action should have been positioned to be embraced as one of potentially several extralegal remedies that would live adjacent to and in support of the constitution, to address an extraordinary set of self-imposed circumstances. Otherwise, direct alignment with the 14th amendment creates an inescapable conundrum, where affirmative action is forced to feed on its proverbial tail – seeking to resolve a problem with the creation of more of the same problem.
Alignment with the 14th amendment does not erase the cumulative and protracted harms of the past or the more recent harms derivative of past harms, leaving the playing field unlevel. In this its fifth time taking up affirmative action, the court offered a ruling that came with raised shoulders and hands akimbo that casually uttered, as cool as you like, "I don’t know what to tell you". Justice Sotomayor wrote in her dissent, that the majority is "trying to derive equality from inequality"4, and in her equally, if not sharper dissent, Justice Brown stated, that the Court cement[ed] a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter".5
Decisions on these twin “affirmative action” cases have effectively ended even the limited use of race in college admission.6 Albeit an imperfect policy, the elimination disrupts a pipeline of opportunity and advancement to deliver qualified African Americans to the experiences of undergraduate, graduate, and post-graduate education and on to becoming part of a well diverse workforce. The choking off of this conduit to higher education potentially reduces the number of future leaders, the acquisition of new knowledge based on diverse outlooks, the promotion of a robust marketplace of ideas, and the preparation of engaged and productive citizens.7
For decades, this flawed application of affirmative action has attempted to serve in this capacity. The need for the protracted benefits of affirmative action – consideration of race in college admission - is particularly compelling for the field of public health.8 On the legal front it has been 20 years since the court ruled in favor of Grutter – further limiting the application of affirmative action as long as policies for college admission meet the strict scrutiny standard.9 It has also been 20 years since the release of the then Institute of Medicine now National Academy of Medicine landmark study and report, Unequal Treatment: Confronting Racial and Ethnic Disparities in Health Care. The report spotlighted systemic racism in medicine and offered recommendations for correcting health disparities. On the anniversary of both of these advancements only one is being celebrated, recognizing the achievements since 2003 and also the work still to be done to achieve equity in health.10
There is absolutely nothing magical or anti-racist about simply sitting next to a white person on the job or in the classroom. You have to put in the work for proximity to a person of a different race to have meaningful consequences.11 Equally, asserting race-neutral policies in aspiration of a color-blind society, intentional ignoring race when there is an ever-present need to address historical race-conscious wrongs, is a painful and empty journey. Just look at the well debated, but poorly executed initiatives like the integration of Central High School in Little Rock12 and the bussing of black and white children to public schools many miles outside of their respective neighborhoods in an effort to further actualize Brown v. Board of Education in cities like Boston, Cleveland, Denver, and Louisville.13 Diversity in higher education is not the same as remedy. The late Professor Derrick Bell reminds us that confusing the two "could provide the appearance of equality, while leaving the underlying machinery of inequality untouched".14
But there is something that can be said about targeted inclusion for the purpose of building a diverse public health workforce that reflects and will reflect the blacker and browner America that will become a reality even sooner than once anticipated, 2042.15Public health research and delivery of care is particularly important in this regard. In 2019, a little under 40% of the total U.S. population was either nonwhite or Hispanic. Since 2010 the Black population grew by almost 12% over the decade, and the white population increased by 4.3%.16 During oral arguments, Justice Kagan speaks to exactly this phenomenon when she asks the petitioner about the importance of staff diversity to meet the needs of a growing diverse population. She asked about diversity needed in hospitals, in the medical field, diversity in police departments, and even among clerks in the court.
A public health workforce that reflects the population it serves and patient-provider race concordance have proved to be important factors in achieving positive health outcomes, stronger patient-provider communication, stronger bonds of trust, and greater adherence to therapies and medications.17 A 2022 Urban Institute study found that having a healthcare provider of the same race or who speaks the same language has been associated with a greater likelihood of patients agreeing to and receiving preventive care.18
A robust and diverse public health research workforce can arguably help avoid unspeakable public health research disasters of the past, like J. Marion Sims' gynecologic experimentation on enslaved women,19 the study of untreated syphilis in the Negro male in Alabama, forced sterilization of minority women and eugenics practices, and there are more.20 Although most health care providers appear to have implicit biases reflecting positive attitudes towards whites and negative attitudes toward people of color, a diverse and race concordant public health research workforce may be more likely to be motivated to reduce implicit biases around pain management, prescribing of drugs, attentiveness around maternal mortality and more.21
When allowed to freely explore curiosities and test ideas, institutions of higher learning are more likely to be the places where individuals of diverse experiences exhibit innovation and wrestle with well founded and not so well founded ideas when trying to understand the fragile and imperfect society that they will one day inherit. Targeted inclusion for diverse student bodies creates spaces where once experimental concepts like social determinants of health can be fully explored to identify root causes of societal inequities. Implicit bias can be challenged and addressed to reveal disparate delivery of care based on race. Intersectionality, the consideration of various social and political identities combined to create different modes of discrimination and privilege, was once an untested academic idea that with time has developed into a recognized framework for understanding public health. And even racism as a public health issue, cellular memory and theories on post-traumatic slavery syndrome can be investigated and assessed.22, 23, 24 There is room for so much exploration and advancement in public health to address a wide range of issues.
Since forever African Americans have been told to wait, that slavery would eventually die out, that change and better is coming in due time, all the while injustice is allowed to continue. This court had the temerity to flex their impatience, cutting short the 25-year clock that Justice O'Connor arbitrarily set to sunset the policy, fully aware the current climate in this country. The court is afforded broad discretion to decide which cases it hears and further is permitted to take into consideration current events and the impact that their decisions could have on society.25 But the sun, moon, stars, and politics aligned for this extremely conservative court to rule and for the majority to pen the opinions that they wished they could have long before they were on the court.
While both Justices O’Conner and Thomas admit to being the beneficiaries of affirmative action,26, 27 the term will likely always have detractors, who purport themselves as having interest in the carrying out of the letter of the law. The term will likely always be stigmatized. For decades, there has been something almost hypnotizing about waiting for the court to gain the composition needed to overturn the order. At the same time there is also something very unsettling about the judicial branch’s ability to snuff out an executive branch order as if there is no avenue of recourse. For now, affirmative action has been eliminated for college admission. Sights have already been set on dismantling other applications of the policy, but there could be hope. As long as any sitting president has the authority to modify an existing executive order there exists the opportunity for E.O.s 10925 and 11246, introduced by Presidents Kennedy and Johnson to be resuscitated, given a transfusion, a transplant, offering up a new and more rigorous framework to be enjoyed by those who were not originally considered equal.28
1. Cobb, Jelani. 2021. “The Man behind Critical Race Theory.” The New Yorker, September 13, 2021. https://www.newyorker.com/magazine/2021/09/20/the-man-behind-critical-race-theory.
2. “Living Up To Our Constitution.” n.d. Brennan Center for Justice. https://www.brennancenter.org/our-work/research-reports/living-our-constitution.
3. Amar, Vikram D. 2003. “Constitutional Sunsetting?: Justice O’Connor’s Closing Comments in Grutter.” 2003. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1954907.
4. Sotomayor, Students for Fair Admissions v. Harvard, p. 4.
5. Jackson, Students for Fair Admissions v. Harvard, p. 2.
6. Howe, Amy, and Amy-Howe. 2023. “Supreme Court Strikes down Affirmative Action Programs in College Admissions.” SCOTUSblog, July. https://www.scotusblog.com/2023/06/supreme-court-strikes-down-affirmative-action-programs-in-college-admissions/.
7. Roberts, Students for Fair Admissions v. Harvard, p. 6.
8. Okwerekwu, Jennifer Adaeze. 2023. “Affirmative Action Improved Public Health — and Carried a High Personal Cost for Black Physicians.” STAT, August 1, 2023. https://www.statnews.com/2023/08/02/affirmative-action-diversity-initiatives-cost-black-doctors-weathering/.
9. Grutter v. Bollinger, 539U.S. 306, 326 (2003)
10. “Unequal Treatment at 20: Accelerating Progress toward Health Care Equity.” 2023. Urban Institute. August 17, 2023. https://www.urban.org/research/publication/unequal-treatment-20-accelerating-progress-toward-health-care-equity#:~:text=Racial%20inequities%20remain%20a%20feature%20of%20the%20US,for%20access-related%20factors%20such%20as%20health%20insurance%20coverage.
11. Hassen, Nadha, Aisha Lofters, Sinit Michael, Amita Mall, Andrew D. Pinto, and Julia Rackal. 2021. “Implementing Anti-Racism Interventions in Healthcare Settings: A Scoping Review.” International Journal of Environmental Research and Public Health 18 (6): 2993. https://doi.org/10.3390/ijerph18062993.
12. Brown, Lynn. 2020. “Little Rock, Then and Now.” JSTOR Daily, March. https://daily.jstor.org/little-rock-then-and-now/.
13. Delmont, Matthew F., and Jeanne Theoharis. 2017. “Introduction: Rethinking the Boston ‘Bussing Crisis’” Journal of Urban History 43 (2): 191–203. https://doi.org/10.1177/0096144216688276.
14. Cobb, Jelani. 2021. “The Man behind Critical Race Theory.” The New Yorker, September 13, 2021. https://www.newyorker.com/magazine/2021/09/20/the-man-behind-critical-race-theory.
15. Farr, Brittany. 2021. “A Demographic Moral Panic: Fears of a Majority-Minority Future and the Depreciating Value of Whiteness.” The University of Chicago Law Review Online. August 16, 2021. https://lawreviewblog.uchicago.edu/2021/08/16/rrs-farr-demographic/.
16. US Census Bureau. 2021. “2008 National Population Projections Tables.” Census.Gov. October 8, 2021. https://www.census.gov/data/tables/2008/demo/popproj/2008-summary-tables.html.
17. Zanedash. 2021. “A Matter of Trust: Race Concordance, Diversity, and Interventions for the Provider-Patient Relationship | Healers and Patients in North Carolina.” May 3, 2021. https://healersandpatients.web.unc.edu/2021/05/a-matter-of-trust-race-concordance-diversity-and-interventions-for-the-provider-patient-relationship/
18. “Racial, Ethnic, and Language Concordance between Patients and Their Usual Health Care Providers.” 2022. Urban Institute. March 23, 2022. https://www.urban.org/research/publication/racial-ethnic-and-language-concordance-between-patients-and-their-usual-health-care-providers.
19. Owens, Deirdre Cooper. 2018. Medical Bondage: Race, Gender, and the Origins of American Gynecology.
20. Washington, Harriet A. 2008. Medical Apartheid: The Dark History of Medical Experimentation on Black Americans from Colonial Times to the Present. Anchor.
21. Knoebel, Randall W, Janet V. Starck, and Pringl Miller. 2021. “Treatment Disparities among the Black Population and Their Influence on the Equitable Management of Chronic Pain.” Health Equity 5 (1): 596–605. https://doi.org/10.1089/heq.2020.0062.
22. Howell, Joel D. 2021. “Understanding Black Distrust of Medicine.” Copyright 2022 the Regents of the University of Michigan, May 14, 2021. https://sph.umich.edu/findings/spring-2021/black-distrust-of-medicine-from-sims-to-tuskegee-and-its-impact-on-vaccine-hesitancy.html.
23. Halloran, Michael J. 2018. “African American Health and Posttraumatic Slave Syndrome: A Terror Management Theory Account.” Journal of Black Studies 50 (1): 45–65. https://doi.org/10.1177/0021934718803737.
24. Hall, William J., Mimi V. Chapman, Kent M. Lee, Yesenia Merino, Tainayah Thomas, B. Keith Payne, Eugenia Eng, Steven H. Day, and Tamera Coyne-Beasley. 2015. “Implicit Racial/Ethnic Bias among Health Care Professionals and Its Influence on Health Care Outcomes: A Systematic Review.” American Journal of Public Health 105 (12): e60–76. https://doi.org/10.2105/ajph.2015.302903.
25. “About the Supreme Court.” n.d. United States Courts. https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/about#:~:text=When%20exercising%20its%20appellate%20jurisdiction,Court%20to%20review%20its%20case.
26. Thomas, Evan. 2019. “How Sandra Day O’Connor Saved Affirmative Action.” The Atlantic, March 19, 2019. https://www.theatlantic.com/ideas/archive/2019/03/how-sandra-day-oconnor-saved-affirmative-action/584215/.
27. Ingram, Julia. 2023. “Clarence Thomas’ Long Battle against Affirmative Action.” FRONTLINE, June 29, 2023. https://www.pbs.org/wgbh/frontline/article/clarence-thomas-long-battle-against-affirmative-action/#:~:text=Thomas%20has%20long%20remained%20staunchly,influenced%20American%20law%20and%20politics.
28. “What Is an Executive Order?” n.d. https://www.americanbar.org/groups/public_education/publications/teaching-legal-docs/what-is-an-executive-order-/.
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