Forty years after the landmark Supreme Court decision in U.C. Regents v. Bakke, medical schools remain predominantly white institutions. In Bakke, Justice Powell infamously rejected the concept of societal discrimination, which was offered as a justification for the U.C. Davis medical school’s race-conscious admissions program, as “an amorphous concept of injury that may be ageless in its reach into the past.” In affirming the application of strict scrutiny analysis to policies involving benign racial classifications, the Court ushered in a strict scrutiny regime under which public universities must develop and defend their consideration of race in higher education admissions. With the Bakke decision, the Court effectively endorsed a false equivalency between laws intended to subordinate Black people and laws intended to remedy the effects of anti-Black discrimination. Consequently, since 1978 courts and universities have diverted their attention from mitigating the impact of past and present racial discrimination to safeguarding the diversity rationale, which has proven vulnerable to ongoing litigation and faces the possibility of being eliminated entirely with the revamp of the federal courts into a solidly conservative judiciary under President Trump.
As the reality of the end of affirmative action looms, empirically derived justifications for race- conscious remedies pose a direct challenge to the arguments advanced by its most staunch opponents. The persistence of racial disparities in various areas of wellbeing such as education, criminal justice, and health militates against notions of racism as amorphous or an evil of the past. Racial health disparities in particular have recently become the subject of widespread media attention, due in part to the health challenges faced by tennis star Serena Williams during her pregnancy, and related reports highlighting the crisis of maternal mortality which disparately impacts Black women. This crisis in Black maternal health illustrates only part of a broader health crisis facing Black Americans, and compels a closer look at the history of racism within our medical institutions and the medical profession.
In this Comment, I argue that the persistence of racial health disparities today is not only a relic of a long history of anti-Black racism in healthcare, but a consequence of the Court’s colorblind approach to affirmative action jurisprudence since Bakke and the restrictions in access to predominantly white institutions that have resulted. In recounting the history of racism in medical experimentation and healthcare policy since the antebellum period, this analysis seeks to locate racism in a particular form and illustrate how notions of racism as amorphous—and therefore outside the scope of a constitutional remedy—elide the state’s role in perpetuating racial disparities that persist to this day.
66 UCLA L. Rev. 522 (2019)
In reevaluating the justifications for race-conscious medical school admissions that were ultimately rejected in Bakke, this Comment explores the empirical research related to physician racial bias and Black patients’ mistrust of the medical institution, and the efficacy of race- concordant healthcare as an intervention. Collectively, the data proffered suggests that there is an interactional racial dynamic that significantly affects medical service delivery, which should inform race-conscious admissions practices in medical schools. Finally, the legal analysis brings both of these strands together by reexamining the Court’s seminal affirmative action cases from the past four decades in light of the history and the empirical evidence documented here. The end result makes a compelling case for affirmative action that harkens back to its original intent—to ameliorate the effects of racial discrimination—precisely at a moment where it is on its last legs. It clarifies why affirmative action was always necessary, and why affirmative action must stay.