Health Law and Ethics

Defending Diversity: Affirmative Actionand Medical EducationKenneth DeVille, PhD, JD

Affirmative action in higher educationis in peril-judicially, politically, and in thecourt of public opinion. A series of federalcourt decisions have cast a constitutional pallover many of the nation's affirmative actionpolicies. In 1992, rejected applicants-askingfor both injunctive relief and monetary dam-ages-sued the University ofTexas School ofLaw and its dean, claiming that the school'sadmissions policies constituted illegal reversediscrimination. In 1997, nearly identical suitsagainst the University ofWashington and theUniversity ofMichigan were filed by lawyersfrom the Center for Individual Rights, anorganization that has emerged to provide legalaid to individuals who feel they have beenwronged by affirmative action policies. InNovember 1998, the First Circuit Court ofAppeals, in Wessmann v Gittens, invalidatedthe prestigious Boston Latin School's affirma-tive action policy, even though ajudicial orderhad once been required to ensure the school'sdesegregation.' More suits are planned, andaccording to one anti-affimative action attor-ney involved in the litigation, "It's like shoot-ing fish in a barrel.'2

Affirmative action is under attack in thepolitical arena, too. California spearheaded themovement in 1996 with Proposition 209, avoter-mandated prohibition on the use ofrace-based affirmative action policies by govern-ment entities. Washington State followed withInitiative 200 in November 1998. In addition,legislators in more than a dozen states haveintroduced anti-affirmative action bills in thelast 2 years. This increasing judicial and politi-cal activity reflects a decreasing popular com-mitment to broad-based affirmative actionpolicies.3 A 1997 Washington Post-ABCNews survey found that "only one in sixwhites but nearly half of all blacks believethat minorities should receive preference incollege admissions."4 Given the currentsocial and political climate, medical schoolsmay soon be called upon to defend their com-mitmnents to racial balance through admissions

practices. Although there are a number ofcomplementary grounds on which to defendaffirmative action, the most tenable will be arevitalized articulation of the importance ofdiversity in medical practice and education.

AffirmativeAction and the Law

Any law or action by any state entitymust meet the requirements of the FourteenthAmendment of the Constitution, which holdsthat "no state shall ... deny to any personwithin its jurisdiction the equal protection ofthe laws." Governmental actions that take raceinto account are deemed inherently "suspect"under Fourteenth Amendment jurisprudence.Race has been designated a "suspect" classifi-cation by the courts because one of the chiefpurposes of the Fourteenth Amendment is toeliminate long-standing official, state-baseddiscrimination against African Americans;because de jure discrimination based on racehas traditionally been seen to connote inferior-ity; and because victims of racial discrimina-tion by the state are sometimes less able thanother victims of discrimination to seek reliefthrough the political and electoral system andthus warrant special judicial protection. As aresult, state actions involving classification,differentiation, or discinuination based on racemust meet an especially heavy burden-the"strict scrutiny test" (e.g., see references 5-8).

Under the strict scrutiny test, a stateclassification based on race is presumed to beunconstitutional unless the state entity canshow that the classification is necessary to

The author is with the Department of MedicalHumanities, School of Medicine, East CarolinaUniversity, Greenville, NC.

Requests for reprints should be sent to Ken-neth DeVille, PhD, JD, 2S-17 Brody, School ofMedicine, East Carolina University, Greenville, NC27858-4354 (e-mail: deville@brody.med.ecu.edu).

This paper was accepted January 4, 1999.

August 1999, Vol. 89, No. 8

Health Law and Ethics

further a "compelling state interest." Thestate must also show that the state action inquestion is narrowly tailored to meet thatcompelling state interest. A court will weighthe efficacy of altemative remedies, the flexi-bility and duration of the policy, the relation-ship between the program's numerical goalsand the percentage of minorities in the rele-vant population, and the impact of the pro-gram on the rights of innocent third parties.8Under the strict scrutiny test, state legislationthat discriminates against minorities hasinvariably been declared invalid.i7

Some scholars and judges endorse alower level of constitutional scrutiny-the"intermediate level of scrutiny"'9"10-whenthe state action represents an attempt to bene-fit minorities. They argue that the originalpurposes of the Fourteenth Amendment andthe historical experience of racial minoritiesjustify special protection for these groups. Ifsuch a standard were adopted by the federalcourts, programs designed to benefit racialminorities would be easier to defend thanthose that work to the detriment of racialminorities.

The current judicial trend, 112 however,reflected in the Supreme Court's decisions inRichmond v Croson (1989)'3 and AdarandConstructors, Inc v Pena (1995),14 has beento apply the strict scrutiny test to state actionthat is friendly to minorities, such as affirma-tive action, in the same way that it is appliedto state action that is hostile to minorities.Observers who support the use of the strictscrutiny test for any state action that uses raceas a factor assert that it is impossible toadvantage one race without disadvantagingthe less favored races. Unadulterated equalitybefore the law, they argue, should be thebenchmark of state action; otherwise the con-stitutional protections embodied in the equalprotection clause would be subject to the ebband flow oftemporal political sentiment.

A change ofcourt personnel or the evolu-tion ofjjurisprudence may diminish the impor-tance of the strict scrutiny test in evaluatingstate action,'5 but in the short term at least,strict scrutiny is the measure that must be metby medical schools and other state entities thatuse race to help choose students.'6

Meeting the Current LegalStandard

Admissions policies that establish quo-tas or set-asides will not pass constitutionalscrutiny. These policies have been prohibitedsince the Bakke case'7 and are now rare ornonexistent. (Alan Bakke, a White man, chal-lenged the affirmative action policy of theUniversity of California-Davis School of

Medicine. Justice Lewis Powell joined with 4other justices to hold that race-based numeri-cal quotas violate both the equal protectionclause of the Fourteenth Amendment and theCivil Rights Act of 1964. Thus Bakke mustbe admitted. However, Powell also joinedwith other justices to conclude that race, insome situations, might legitimately be con-sidered as long as admission was not basedsolely on that factor.) The absence of quotas,however, does not guarantee that a particularpolicy or practice will be affirmed; neitherdoes the claim that race is only one of a total-ity of factors that influence admissions deci-sions. Bakke states that race may be used as a"plus factor" in admissions considerations,but if that plus factor is determinative inindividual cases it must still face the strictscrutiny test.

Disappointed nonminority applicants oractivist opponents of affirmative action mightattempt to demonstrate that race is being usedas a determining factor by gaining access toan institution's application files, either throughthe discovery process, in the event that litiga-tion has been initiated, or through the relevantstate's open records or freedom ofinformationacts (e.g., see references 18-22). Applicants'race, grade-point averages, standardized testscores, and residency can be evaluated bymeans ofsuch statistical techniques as logisticregression and discriminant analysis to dis-cover whether race plays a deterimining role inthe institution's decisions to admit students.The policy or practice that is shown to userace as a determiniing factor will be presumedto be unconstitutional unless the institutiondemonstrates (1) that the policy or practice ismotivated by a "compelling state interest" and(2) that it is narrowly tailored to achieve thatstate interest.'6

Remedying the Effects ofPastand Current Discrimination

Courts have acknowledged that affirma-tive action programs may satisfy the com-pelling state interest requirement if they areintended to remedy the continuing effects ofpast and present discrimination. But althoughAfrican Americans and other minorities havesuffered tragically from discriminatory prac-tices in this country, medical schools mayfind it difficult to justify affirmative actionpolicies on these grounds. Courts have con-sistently held that a desire to correct theeffects of general "societal discrimination" isnot a compelling state interest sufficient tojustify the strict scrutiny test.'3'23 To show acompelling state interest, the state must iden-tify specific discrinination by a governmen-tal entity.

Courts may allow medical schools todemonstrate that their policies are intended toremedy the continuing effects of past dis-crimination in grades kindergarten through12 ofthe relevant state's public education sys-tem. But this approach, too, may pose diffi-culties to medical schools defending chal-lenged affirmative action practices. Manymedical schools, relying on Bakke, estab-lished their policies years ago and did notbase their affirmative action programsexplicitly on attempts to remedy past dis-crimination.'6'24'25 Therefore, it is unlikelythat medical school or state policymakerswill possess evidence that demonstrates thecontinuing effects of discrimination through-out the relevant state's public school system;they never saw the need to collect it.26

Providing courts with evidence of dis-crimination against the cohort of students cur-rently applying for admission to medicalschools may also be difficult. Many of thosestudents entered the public school system inthe early 1970s, a period marked by manda-tory desegregation through busing and by rela-tively aggressive civil rights enforcement poli-cies with regard to public school enrollment.27As a result, although racism and discrimina-tion still limit the opportunities ofminorities invery real ways, it may be difficult to generateevidence ofthe sort ofsystemic discriminationin a public school system that requires a rem-edy at the level of professional education.Even if such evidence were collected, it is notclear that courts would accept it to justify apolicy retrospectively.28

These evidentiary hurdles, combinedwith the now relatively consistent applicationof the strict scrutiny test by the SupremeCourt and federal circuit courts, may under-mine a medical school's defense of race-based affirmative action practice on the basisof the continuing effects of discrimination.Consequently, although the concept of diver-sity in medical school education is in jeop-ardy, it may ultimately provide the most valu-able and practical legal defense ofaffirmativeaction in medical education.

The Courts and DiversityOne of the earliest and fullest examina-

tions ofthe diversity justification appeared inBakke in 1978. In Bakke, Justice Lewis Pow-ell explained that the medical school's desireto create a diverse student body to providemore physicians for underserved minoritypopulations did not constitute a compellingstate interest. Powell noted that there wasinsufficient evidence in the record that themedical school's special admissions programwas needed or that it was likely to promote

American Joumal of Public Health 1257August 1999, Vol. 89, No. 8

Health Law and Ethics

the stated goal of the program. However, heoffered another reason why the pursuit ofdiversity might satisfy the compelling stateinterest test. Diversity, he asserted, is vitalfor the "robust exchange of ideas." Thus,according to Powell, the selection of diversestudents who would contribute to an intellec-tually vibrant academic community was aconstitutionally permissible goal.17(pp313-3l15)23The constitutional meaning of diversity inhigher education has never again been ana-lyzed in a Supreme Court majority opinion.

This paucity ofjudicial analysis andprecedent has endangered the diversity justifi-cation as challenges to affirmative action pro-grams became more common.'5 The diversityjustification was attacked directly in Taxman vBoard ofEducation ofPiscataway (I996)9 andHopwood v Texas (1996).12 In Hopwood, theFifth Circuit Court applied the strict scrutinytest to the University ofTexas law school's affir-mative action policies and emphasized thatPowell's elevation of diversity as a compellingstate interest in Bakke was never joined bythe majority of the court. As a result, accord-ing to the Hopwood court, Powell's swing-vote opinion in Bakke did not represent theposition of the Supreme Court or the law ofthe land. 124'94"-44) In short, diversity in highereducation did not represent a compelling stateinterest. Hopwood has binding legal forceonly in the Fifth Circuit (Texas, Louisiana, andMississippi), but many observers, includingthe dissenters, have warned that the "radicalimplications ofthis opinion, with its sweepingdicta, will literally change the face of publiceducational institutions throughout Texas, theother states of this circuit, and this nation."30Even if the Hopwood ruling is ultimatelydeemed a mistaken reading of the SupremeCourt's position, the diversity rationale clearlyneeds rejuvenation.3

The Case ofPrivate MedicalSchools

Most of the leading affirmative actioneducation cases have involved state ratherthan private institutions. Consequently, it is amatter of some speculation whether the fore-going discussion applies with equal force toprivate medical schools that attempt to imple-ment affirmative action programs. The equalprotection clause of the Fourteenth Amend-ment applies to state action. Title VI of theCivil Rights Act of 196432 prohibits discrimi-nation by private entities that receive federalfunds. Although there is no definitive caselaw specifically relating to affirmative actionprograms at private educational institutionsthat receive some manner of federal funds,courts have held that the test for purported

Title VI violations is the same as that appliedunder the equal protection clause ofthe Four-teenth Amendment.

Significantly, benchmark cases such asBakke and Hopwood were brought under bothTitle VI and Fourteenth Amendment claims.Private institutions in the jurisdiction coveredby Hopwood have assumed that the case'smandate applies to them as well as their publiccounterparts.33"P82) Thus, according to Chris-topher Edley, who reviewed national affirma-tive action policies for the Clinton administra-tion, "it is reasonable to expect that afterCroson and Adarand the question will bewhether the [private] entity has a compellinginterest and whether the affirmative actionmeasure is narrowly tailored."28P69) There arepotential arguments to be made that Title VIchallenges might and should be viewed differ-ently from Fourteenth Amendment claims.But for now, it is likely that the same strictscrutiny test will be applied to private and stateeducational institutions that attempt to enactaffirmative action admissions policies.

Defending Diversity

The constitutional argument in favor ofdiversity as a "compelling state interest" inmedical schools may be imperiled, but it is notmoribund. There is scattered support for thedoctrine in a number of Supreme Court rul-ings. Although the observation was not a partof its holding, the Supreme Court majority inMetro Broadcasting, Inc v FCC observed that"a diverse student body contributing to arobust exchange of ideas is a constitutionallypermissible goal on which a race-consciousuniversity admissions program may be predi-cated."34 Justice Sandra Day O'Connor, in aconcurring opinion in Wygant v JacksonBoard ofEducation, noted that "a state inter-est in the promotion of racial diversity hasbeen found sufflciently 'compelling' at leastin the context of higher education, to supportthe use of racial considerations in furtheringthat interest."23tp286) No federal court, includ-ing the Hopwood court, has ever statedunequivocally that diversity can never be con-sidered a compelling state interest. Instead,courts have held that the goal of diversity asarticulated in particular factual contexts is notcompelling, or that insuffilcient evidence hasbeen marshaled to demonstrate its compellingcharacter. Thus, diversity may still represent acompelling state interest if it is properlyexplained and supported by the relevant legis-lature or governmental entity.

In medical education, the special natureof the doctor-patient relationship, society'sgrowing understanding of the complexity ofrace relations in the United States, and the

quantitative and qualitative evidence that hasbecome available in the last 20 years may helpmake the case that diversity is a constitution-ally legitimate motive for enacting an affir-mative action program. There are 3 relatedgrounds on which diversity might be consid-ered a "compelling state interest" in medicaleducation: (1) that it will increase the numberof physicians who serve traditionally under-served patients and specialty areas, (2) that itpromotes the robust exchange of ideas in med-ical education, and (3) that it will result in bet-ter medical care for minority patients.

Increasing the Number ofPhysicians in UnderservedAreasand Practice Specialties

There is now some empirical evidencehighlighting the potential role of minorityphysicians in increasing the health status ofthe nation, which was not the case at the timeof Bakke. Komaromy et al. recently foundthat African American and Hispanic physi-cians cared for a larger percentage of minor-ity patients than did their White counterpartsand that they were more likely to practice incommunities with insufficient numbers ofprimary care practitioners and to care forMedicaid patients and uninsured patients.35Similarly, in 1993, the American Associationof Medical Colleges reported that 39.8% ofmedical school graduates from underrepre-sented minorities reported that they intendedto practice in underserved areas, comparedwith only 9% of other graduates.36

These studies and others3740 constitute agrowing body of evidence that minorityphysicians may play an important role inadvancing the overall health of the nation'scitizens. These data could be augmented withstatistics generated at individual medicalschools that track the career paths of theirminority physician graduates. For both eco-nomic and humanitarian reasons, states andstate entities have a compelling interest in fur-thering the health of their citizens. Therefore,with sufficient documentation, a medicalschool might be able to contend successfullythat affirmative action programs that placemore minority physicians in the medicalworkforce serve a compelling state interest.

It is possible, though, that individualcourts will not view the available empiricalevidence, some ofwhich is equivocal, as suf-ficient. Even if a court agrees that increasingthe number ofminority physicians serves thecompelling state interest of improving thehealth of underserved populations, the meansdised to achieve that compelling state interestmust be 'nrrowly tailored" to further that end.

1258 American Journal of Public Health August 1999, Vol. 89, No. 8

Health Law and Ethics

For example, a medical school that defends anadmissions policy on the grounds that morephysicians are needed for underserved popu-lations might also have to demonstrate that noalternative race-neutral means of reachingthat end are available.

A defense of diversity on the groundsthat minority physicians are more likely tobring primary care to underserved popula-tions is precarious on other grounds. Manyminority medical students do wish to practicein underserved areas as primary care physi-cians. Some, however, want to practice medi-cine in non-primary care specialties and inareas ofthe country that are not underserved.Society should be wary of any policy thatsuggests that minority physicians should bedirected into any particular geographic area,type of neighborhood, or medical specialty.Such observations do not mean that diversity-based policies cannot be justified on thegrounds of providing primary care to under-served populations, but the vulnerability ofthis argument should encourage supporters ofaffirmative action programs to seek out sup-plemental reasons why diversity is a com-pelling state interest.

The Robust Exchange ofIdeas

Supporters of the diversity justificationfor affirmative action might also considerrejuvenating Powell's assertion in Bakke thatdiversity is a compelling state interest becauseit helps students develop more sophisticatedinterpersonal skills by forcing them to interactwith people of different perspectives.'7 Fed-eral courts have acknowledged the utility ofdiversity in law enforcement agencies that areresponsible for working with diverse popula-tions (for example, see reference 41). Similarly,a critical mass of minority medical studentsmay provide their nonminority colleagues withinsights into the racially and culturally basedconcerns of future patients. Daily contact withstudents of different backgrounds-contactthat includes discussions about the clinical,social, and ethical aspects of patient care-may help nonminority physicians serve theneeds of their minority patients in the future.

The goal ofbetter patient care representsajustification that is far more constitutionallycompelling than mere intellectual enrichmentfor medical students. But in a political andjurisprudential environment that is increas-ingly suspicious of race-based remedies, it isimportant to possess evidence that diversityactually helps to achieve this goal. Such evi-dence may be elusive. Moreover, even if acourt finds that a diverse educational envi-ronment leads to better patient care by sensi-tizing nonminority students, the medical

school will be asked to demonstrate that therace-conscious policy is narrowly tailored toachieve that goal. For example, has the med-ical school considered other, race-neutral,means of awakening its nonminority studentsto the concerns and needs of their futurepatients who may be minorities? Wouldworkshops, discussion groups, speakers, orthe use of standardized patients be equallyeffective in preparing nonminority physiciansto care for diverse patient populations? (See,for example, Lum and Korenman.42 )

Better Patient Care: The MostCompelling State Interest

Diversity in the medical profession is acompelling state interest because only it canensure that minority populations will receiveadequate health care. The state has not onlyan interest in producing but a duty to producephysicians who can engage in therapeuticrelationships with their patients that are basedon mutual trust-a requirement for optimumdelivery of health services. The historicalexperience of minority groups, especiallyAfrican Americans, with the medical profes-sion is very different from the experience ofnonminorities, and as a result they viewencounters with medical professionals in afundamentally different way than do nonmi-nority patients.

Annette Dula has argued that "[flromslavery times to the present, US descendantsofAfrica have harbored ajustified mistrust ofmedicine and medical research [that] cannotbe simply written offas paranoia or hypersen-sitivity.""3(p347) This distrust has its origins inantebellum slave culture, in which Whitephysicians were viewed as owing allegianceto the slave owner rather than to the slaveswho were their patients."'45 The ambivalentrelationship between organized medicine andAfrican Americans continued after emancipa-tion. The medical profession played a role indeveloping late 19th-century racial theoriesinsinuating that Blacks were physiologicallydifferent from and evolutionarily inferior toWhites.46'47 This view ofAfrican Americanbiology and physiology helped inspire thenow infamous Tuskegee Syphilis Study, inwhich medical research was conducted onBlack men without their consent and theywere denied access to beneficial treatment.48The role of researchers' exploitation and mis-treatment in helping to shape the AfricanAmerican view of the medical establishmentcan hardly be overstressed.49 At the sametime, throughout the first halfofthe 20th cen-tury medical institutions and the medical pro-fession implicitly and explicitly supported asegregated medical delivery system that typi-

cally provided African Americans with sepa-rate and unequal care.Y052

The medical slights and harms born ofracism have not been forgotten in the post-segregation world. According to historianVanessa Northington Gamble, "there is a col-lective memory among African Americansabout their exploitation by the medical estab-lishment."49(p"775) The distrust generated bythis legacy can endanger the doctor-patientrelationship and the comfort level AfricanAmerican patients feel with nonminorityphysicians. A number ofstudies have demon-strated that minorities clearly prefer to betreated by physicians drawn from their ownethnic groups.53

Minorities' distrust of the medical pro-fession is rooted also in their perception ofthe contemporary health care system. Thereis growing and credible evidence that healthprofessionals continue to treat minorities dif-ferently from nonminorities in ways thatundermine their health status.54 One studyfound that primary care physicians who carefor predominantly minority patients "wereless likely to follow guidelines from nation-ally recognized organizations for health pro-motion and disease prevention" than werephysicians who care for predominantly Whitepatients.55 Another found that the rates forambulatory care visits, mammography, andimmunizations were lower for Black patientsthan for Whites at every income level. Otherresearch reveals lower utilization rates forAfrican Americans for ordinary componentsofbasic medical care, such as laboratory testsand x-rays.56

African American patients are morelikely than White patients to report that theirphysicians did not express concern for theirpain and failed to provide them full informa-tion about their examination findings, testresults, diagnoses, medications, and prenatalcare.57'58 In one study, race was associatedwith less timely follow-up by physicians afteran abnormal screening mammogram.59 Otherstudies have found that African Americansare more likely than Whites to be hospital-ized for avoidable conditions6o and that, oncehospitalized, they may receive a lower qualityof care and be less stable at discharge thanother patients.56'61 African American patientsare less likely than White patients to receivehip and knee replacements,62'63 to receive anti-retroviral therapy or prophylaxis for Pneumo-cystis carinii pneumonia on first referral to anHIV clinic,"M and to undergo surgical resectionfor colorectal cancer (this difference wasfound even after researchers controlled forage, comorbidity, and extent and location oftumor).65

African Americans, regardless ofincomelevel, are more likely than White patients to

American Joumal of Public Health 1259August 1999, Vol. 89, No. 8

Health Law and Ethics

undergo procedures such as lower-limb ampu-tation, bilateral orchiectomy, and cesareandelivery.66 The authors of one study con-cluded that their findings "suggest inappropri-ate influences on clinical decision making thatwould not be addressed by changes in reim-bursement."67 Racial variations in cardiac carehave been the most well documented. Evenstudies that control for disease severity, eco-nomic and insurance status, and the presenceof comorbid conditions find that Blacksreceive less intensive cardiac care.6>74 In theNovember 1997 issue of the Journal, H. JackGeiger mentioned an ongoing study that sug-gests that the treatment disparities in cardiaccare cannot be attributed to patient preference,"raising the probability that the differentialsare the result, instead, of covert or uncon-scious racial stereotyping by physicians intheir assessment of patients' suitability forsuch procedures.S54(Pl7I66)

Physicians are less effective at treatingpatients who do not trust them. And it isincreasingly evident that African Americansand other minority patients have stronggrounds for doubting both the goodwill andthe color blindness ofWhite medical practi-tioners. The empirical evidence suggestingdifferential medical treatment of minori-ties, the suspicion based on historical expe-rience, and anecdotal accounts from minoritypatients combine to undermine the relation-ship between White physicians and minoritypatients, despite individual physicians' good-will and regardless of whether the minoritypatient's fears are correct in any individualcase. For example, African Americans are thepatient group most likely to distrust the carethey will receive at the end of life.75 By influ-encing such factors as patterns of compli-ance, preventive care, and patient disclosureofinformation and choice of therapies,43 suchdistrust can have a substantial impact on thecare that minority patients receive. This sus-picion is so deep-seated and widespread that,in the short term, the only remedy is to pro-vide minority patients with physicians withwhom they feel safe and comfortable.76

This justification for race-consciousadmissions policies does not represent anattempt to remedy past wrongs or to helpaspiring medical students from disadvan-taged backgrounds (although it may inciden-tally do both). Instead, it is based on thestate's utilitarian interest in ensuring thatmedical professionals can do theirjob. It doesnot require evidence of past discriminationagainst minority medical school applicantsand evidence ofthe current ill effects ofthosewrongs. It does not require a link between thevictims of discrimination and the recipientsof preferential treatment. All it requires isconvincing evidence that African Americans

and other minorities have persistent anddeep fears that the color of their skin willaffect the care they receive from their doc-tors and that those fears undermine the thera-peutic alliance that should characterize thedoctor-patient relationship. Some such evi-dence already exists, and more can be col-lected both nationally and locally throughcontinuing studies of the way in whichminorities and the health care system inter-act. This evidence might be marshaled toconvince courts considering the constitution-ality of a medical school's admissions policythat better health care is a compelling stateinterest and that a racially diverse physicianworkforce is the only effective means of sat-isfying that interest.

Conclusion

Even if the courts accept this argu-ment-and it is by no means certain that theywill-affirmative action supporters must stillwin the political and public relations cam-paign. Otherwise, even judicially sanctionedaffirmative action practices could be struckdown by legislative fiat or popular referen-dum. The outcome ofthe political debate willdepend on how successfully supporters canarticulate the moral and social reasons whyaffirmative action is justified, irrespective ofits constitutionality. Affirmative action poli-cies might be justified morally and politicallyas a form of compensatory justice, a repay-ment of the debt owed to groups of individu-als that have been wronged. They might alsobe rationalized as a form of distributive jus-tice, a way of ensuring that individuals fromdisadvantaged groups receive a just distribu-tion of society's goods and opportunities.Compensatory and distributive justice argu-ments are cogent and sufficiently strong toconvince some people of the need for affir-mative action remedies.77'78

Politics, however, is the art of the possi-ble. In the realm of political debate andmoral argument, a diversity-based utilitariangoal is likely to garner more public supportthan other justifications and thus will bemost helpful in answering and forestallingfurther political attacks on affirmativeaction. It does not raise the contentiousissues of blame and debt. Instead, the diver-sity justification for affirmative action restson the more modest, but demonstrable, claimthat society has an interest in providing ade-quate care to patients. The medical profes-sion and the health care system will have towin the trust of the minority communitybefore they can deliver health care in aneffective manner. For now, this trust can bewon only by substantially increasing the

number of minority physicians available forminority patients. D

References1. Sarah P Wessmann, ppa Henry R. Wessmann v

Robert P Gittens, chairperson of the BostonLatin School Committee, No. 98-1657 (1st CirNovember 19, 1998).

2. Klein C. Hopwood forces file copycat suit. NatlLaw J October 27, 1997:A6.

3. Galston WA. An affirmative action statusreport: evidence and options. Philos Public Pol-icy. 1997;17:1-7.

4. Biskupic J. Call to renew preferences facesresistance. Washington Post. June 15, 1997:A8.

5. Loving v Virginia, 388 US 1 (1967) (anti-misce-genation law overturned).

6. Anderson v Martin, 375 US 399 (1964) (ballotidentification of candidate's race prohibited).

7. Virginia Board ofElections v Hamm, 379 US19 (1964) (racial identification on voter and taxlists forbidden).

8. United States v Paradise, 480 US 149 at 171(1987).

9. Rubenfeld J. Affirmative action. Yale Law J1997; 107:427-472.

10. Simmons BE. Reconsidering strict scrutiny ofaffirmative action. Mich J Race Law. 1996;2:51-93.

11. Podberesky vKirwan, 38 F3d 147 (4th Cir 1994),cert denied, 115 SCt 2001 (1995).

12. University ofTexas v Hopwood, 78 F3d 932 at940 (5th Cir 1996), cert denied, 116 SCt 2581(1996).

13. Richmond vJ A. Croson Company, 488 US 469(1989).

14. Adarand Constructors, Inc v Pena, 115 SCt2097 at 2113 (1995).

15. Strauss DA. Affirmative Action and the PublicInterest. Supreme Court Review. Chicago, Ill:University of Chicago Press; 1995:1-43.

16. Helms LB, Helms CM. Affirmative action inmedical education: a legal perspective. AcadMed. 1998;73:231-236.

17. Regents of University of California v Bakke,438 US 265 (1978).

18. Virginia Freedom of Information Act, Va CodeAnn, §§ 2.1-340 et seq (1997).

19. Access to Public Records Act, RI Gen Laws §§38-2-1 through 38-2-14 (1992).

20. The Georgia Records Act, Ga Code Ann §§ 50-18-70 through 50-18-76 (1993).

21. The Public Records Act, Ind Code §§ 5-14-3-1through 5-14-3-8 (1995).

22. Public Records Law, Fla Rev Stat §§ 119.01through 119.15.

23. Wygant v Jackson Board ofEducation, 476 US267 at 276 (1986).

24. Shea S, Thompson M, Fullilove T. Entry ofblack and other minority students into U.S.medical schools: historical perspective andrecent trends. JAMA. 1985;313:933-940.

25. Ready T, Nickens H. Affirmative action andProject 3000 by 2000. Am Physician Scientist.September 1996:10-11.

26. Rosen J. The day the quotas died. New Repub-lic. April 22, 1996:21, 24-26.

27. Salomone R. Equal Education Under Law:Legal Rights and Federal Policy in the PostBrown Era. NewYork, NY: St. Martin's Press;1986:38-77.

1260 American Journal of Public Health August 1999, Vol. 89, No. 8

Health Law and Ethics

28. Edley C. Not All Black and White: AffirmativeAction, Race and American Values. New York,NY: Hill & Wang; 1996.

29. Taxman v Board ofEducation ofPiscataway,91 F3d 1547 (3d Cir 1996).

30. University ofTexas v Hopwood, 84 F3d 720 at722 (5th Cir 1996) (denying rehearing on ban).

31. Goldsmith TM. Hopwood v Texas: the Fifth Cir-cuit further limits affirmative action educa-tional opportunities. Md L Rev. 1997;56:273-288.

32. Title VI, The Civil Rights Act of 1964, 42 USC§ 2000d.

33. Orentilicher D. Affirmative action and Texas' tenpercent solution: improving diversity and quality.NotreDameLawRev. 1998;74:181-210.

34. Metro Broadcasting, Inc v FCC, 497 US 547(1990) at 568.

35. Komaromy M, Grumbach K, Drake M, et al.The role of black and Hispanic physicians inproviding health care for underserved popula-tions. N Engl J Med. 1996;334:1305-13 10.

36. Steinbrook R. Diversity in medicine. N Engl JMed. 1996;334: 1327-1328.

37. Xu G, Fields SK, Laine C, Veloski JJ, Barzan-sky B, Martini CJ. The relationship between therace/ethnicity of generalist physicians and theircare for underserved populations. Am J PublicHealth. 1997;87:817-822.

38. Keith SN, Bell RM, Swanson AG, Williams APEffects of affimative action in medical schools:a study of the class of 1975. N Engl J Med.1985;313:1519-1525.

39. Nickens HW. The rationale for minority-targetprograms in medicine in the 1990s. JAMA.1992;267:2390-2391.

40. Penn NE, Russell PJ, Simon HJ, et al. Affirmativeaction at work: a survey of graduates of the Uni-versity ofCalifornia, San Diego, Medical School.Am JPublic Health. 1986;76:1144-1146.

41. Detroit Police OfficersAssociation v Young, 608F2d 671, 695-696 (6th Cir 1979), cert denied,452 US 938 (1981).

42. Lum CK, Korenman SG. Cultural sensitivitytraining in US medical schools. Acad Med.1994;69:239-241.

43. Dula A. African American suspicion of thehealthcare system is justified: what do we doabout it? Cambridge Q Healthcare Ethics.1994;3:347-357.

44. Savitt TL. Medicine and Slavery: The Diseasesand Health Care ofBlacks in Antebellum Vir-ginia. Urbana: University of Illinois Press;1974:282.

45. Savitt TL. The use ofblacks for medical experi-mentation and demonstration in the Old South.JSouth Hist. 1982;48:331-348.

46. Haller J. Outcasts From Evolution: ScientificAttitudes ofRacial Inferiority, 1859-1900.Urbana: University of Illinois Press; 1971.

47. Pernick MS. Eugenics and public health inAmerican history. Am JPublic Health. 1997;87:1767-1772.

48. Jones JH. Bad Blood: The Tuskegee SyphilisExperiment. New York, NY: The Free Press;1993.

49. Gamble VN. Under the shadow of Tuskegee:African Americans and health care. Am JPublicHealth. 1997;87: 1773-1778.

50. Beardsley EH. Making separate, equal: blackphysicians and the problems of medical segre-gation in the pre-World War II South. Bull HistMed. 1983;57:382-396.

51. Beardsley EH. A History ofNeglect: HealthCarefor Blacks and Mill Workers in the Twenti-eth Century South. Knoxville: University ofTennessee Press; 1987.

52. Love S. One Blood: The Death and Resurrec-tion ofCharles R. Drew. Chapel Hill: UniversityofNorth Carolina Press; 1996.

53. Garb M. Like doctor like patient: more andmore patients choose physicians of same ethnicgroup, sexual preference. Am Med News. Sep-tember 1992:15, 17.

54. Geiger HJ. Racism resurgent-building abridge to the 19th century. Am JPublic Health.1997;87:1765-1766.

55. Gemson DH, Elinson J, Messeri P. Differencesin physician prevention practice for white andminority patients. J Community Health. 1988;13:53-64.

56. Kahn KL, Pearson ML, Harrison ER, et al.Health care for black and poor hospitalizedMedicare patients. JAMA. 1994;271:1169-1174.

57. Blendon RJ, Aiken LH, Freeman HE, CoreyCR. Access to medical care for black and whiteAmericans: a matter of continuing concern.JAMA. 1989;261:278-281.

58. Kogan MD, Kotelchuck M, Alexander GR,Johnson WE. Racial disparities in reported pre-natal care advice from health care providers.Am JPublic Health. 1994;84:82-88.

59. Chang SW, Kerlikowske K, Napoles-SpringerA, Posner SF, Sickles EA, Perez-Stable EJ.Racial differences in timeliness of follow-upafter abnormal screening mammography. Can-cer 1996;78:1395-1405.

60. Pappas G, Hadden WC, Kozak LJ, Fisher G.Potentially avoidable hospitalizations: inequali-ties in rates between US socioeconomic groups.Am JPublic Health. 1997;87:811-816.

61. Yergan J, Flood AB, LoGerfo JP, Diehr P. Rela-tionship between patient race and the intensityof hospital services. Med Care. 1987;25:592-603.

62. Harris WH, Sledge CB. Total hip and kneereplacement. NEngl JMed. 1990;323:801-807.

63. Wilson MG, May DS, Kelly JJ. Racial differ-ences in the use of total knee arthroplasty forosteoarthritis among older Americans. EthnDis. 1994;4:57-67.

64. Moore RD, Stanton D, Gopalan R, ChaissonRE. Racial differences in the use of drug ther-apy for HIV disease in an urban community.NEnglJMed. 1994;330:763-768.

65. Cooper GS, Yuan Z, Landefeld CS, Rimm AA.Surgery for colorectal cancer: race-related dif-ferences in rates and survival among Medicarebeneficiaries. Am J Public Health. 1996;86:582-586.

66. Gornick ME, Eggers PW, Reilly TW, et al.Effects of race and income on mortality anduse of services among Medicare beneficiaries.NEnglJMed. 1996;335:791-799.

67. Braveman P, Egerter S, Edmonston F, VerdonM. Racial/ethnic differences in the likelihood ofcesarean delivery, California. Am J PublicHealth. 1995;85:625-630.

68. Golberg KC, Hartz AJ, Jacobsen SJ, KrakauerH, Rimm AA. Racial and community factorsinfluencing coronary artery bypass graft sur-gery rates for all 1986 Medicare patients.JAMA. 1992;267:1473-1477.

69. Hannan EL, Kilburn H, O'Donnell JF, LukacikG, Shields EP Interracial access to selected car-diac procedures for patients hospitalized withcoronary artery disease in NewYork State. MedCare. 1991;29:430-434.

70. Peterson ED, Wright SM, Daley J, Thibault GE.Racial variation in cardiac procedure use andsurvival following acute myocardial infarctionin the Department of Veterans Affairs. JAMA.1994;271:1175-1180.

71. Escarce JJ, Epstein KR, Colby DC, SchwartzJS. Racial differences in the elderly's use ofinvasive cardiovascular procedures and diag-nostic tests. Am J Public Health. 1993;83:948-954.

72. Whittle J, Conigliaro J, Good CB, Lofgren RP.Racial differences in the use of invasive cardio-vascular procedures in the Department ofVeter-ans Affairs medical system. N Engl J Med.1993;329:621-627.

73. Carlisle DM, Leake BD, Shapiro MF. Racialand ethnic disparities in the use of cardio-vascular procedures: associations with type ofhealth insurance. Am JPublic Health. 1997;87:263-267.

74. Peterson ED, Shaw LK, DeLong ER, et al.Racial variation in the use of coronary revas-cularization procedures. Are the differencesreal? Do they matter? NEngl JMed. 1997;336:480-486.

75. Caralis PM Davis B, Wright K, Marcial E. Theinfluence of ethnicity and race on attitudestoward advance directives, life-prolongingtreatnents, and euthanasia. J Clin Ethics. 1993;4: 155-165.

76. Sullivan L. Up close and personal with LouisW. Sullivan, M.D. Am Physician Scientist.March/April 1997:6-7.

77. Fiss OM. Affirmative action as a strategy ofjustice. Philos Public Policy. 1997;17:37-38.

78. Grassian V Moral Reasoning: Ethical Theoryand Some Contemporary Moral Problems.Englewood Cliffs, NJ: Prentice-Hall Inc;1981:318-327.

August 1999, Vol. 89, No. 8 American Journal of Public Health 1261