What SCOTUS’s Affirmative Action Ruling Reveals

Health Equity Health Law
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The Supreme Court’s June 29, 2023, ruling that affirmative action in the admissions processes at Harvard College and the University of North Carolina (UNC) is unconstitutional sent shock waves through much of higher education and beyond. The Justices voted along ideological lines, with the six conservative Justices holding sway. What Chief Justice Roberts’ majority opinion1 reveals is how certain ideas run counter to the pursuit of racial equity. While we leave it to the reader to decide whether the six conservative Justices’ adherence to those ideas was willful, we illustrate four of them with a view to informing movements for health and racial equity.

The evidence that diversity in medical school education matters is well-established.1 Medical students educated in a diverse student body are more willing and better able to work with patients of diverse backgrounds.2,3 This is essential given that underserved populations tend to be minority4 — and it is also associated with better health outcomes.5 For instance, greater Black workforce representation is associated with longer life expectancy and inversely associated with all-cause mortality in Black communities.6

Although Chief Justice Roberts acknowledges the importance of “preparing graduates to adapt to an increasingly pluralistic society,” his view of what that constitutes is “challenges bested, skills built, or lessons learned.”1 This speaks to the idea of ”rugged individualism,” the notion that an individual should be self-reliant, a view widely held in the United States.7 However, the availability of opportunities also matters, and Black children experience fewer opportunities — and greater barriers — than white children do.9 So much so that Black children born to parents in the top quintile of earnings are almost as likely to fall to the bottom quintile as they are to remain in the top. By contrast, white children born in the top quintile are nearly five times as likely to stay there as they are to fall to the bottom.

The idea that opportunities matter is, of course, not new to health professionals. It is well-known that health is influenced by the conditions in which “people are born, live, learn, work, play, worship, and age”—the so-called social determinants of health.8 But this commonly used definition is divorced from the fact that conditions don’t just occur; they are the result of policies that, in turn, are the result of political choices.9 By calling the determinants of health ”social,” we obscure their policy and political roots.10 Similarly, by calling affirmative action unconstitutional, the Supreme Court is denying the political roots of racial inequity — the fact that unfairness was, and often still is, a political choice.

Chief Justice Roberts criticized Harvard and UNC for not being able to measure accurately the benefits of affirmative action.1 Harvard stated that one of its aims was to train future leaders to which the Justice asked how the Court would know when leaders had been adequately trained. UNC said that one of its aims was to promote the robust exchange of ideas to which the Justice asked how the Court would know when exchanges had become adequately robust. This pursuit of accuracy is not, however, a consistent feature of the Supreme Court’s thinking. For instance, in 2013’s Shelby County v. Holder the Court decided that the Voting Rights Act of 1965, a law enacted to address racial discrimination in voting in some states, will end in 2031.11 In making that decision, it did not explain how it deduced that discrimination in voting would be eradicated by 2031 or that the impact of previous discrimination would no longer be felt.

The arbitrary nature of the Court’s decision-making may be overlooked given the difficulty of measuring systemic racism and racial equity.12 However, in the face of such uncertainty, the appropriate response would be to raise the issue and defer it back to society (a process known as judicial deference). Whether racial equity has been achieved is a decision for the people. Similarly, whether our health care workforce is adequately diverse is a decision for the people. Of course, it could be argued that the Supreme Court serves the people — its members are appointed by the government, which is elected by the people. However, that process is clearly not working when the decisions of the Court are swayed by the ideologies of the majority of the Justices. To put it bluntly, the Court is in no position to preside over equity.

We believe the pursuit of racial equity will only gain ground when certain ideas are openly contested. Believing in rugged individualism, denying the political roots of social circumstances, making arbitrary decisions about when the effects of racial discrimination will have passed, and relying on the rationale of appointed officials in times of uncertainty are all unhelpful, if not dangerous, ideas. Of particular note to health professionals is the second point. While excellent work has been done to elucidate how health outcomes are socially influenced, too little has been done to tie that to politics and policies. We are aware that some leaders in public health and health care believe they should stay out of politics. This makes no sense. Health is political, and leaders have no choice but to engage. Whether that means getting involved in local, state, or national democracy, encouraging patients to register to vote and to exercise that right, or showing peers and students that the true roots of health and racial inequity are political, the Supreme Court has made clear that now is the time to be proactive and creative in the pursuit of health and racial equity.

Acknowledgements: We thank Pritpal S Tamber, Nelson Dunlap, and Christian Amador for their assistance in drafting this article.


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Dawes D, Iton A. What SCOTUS’s Affirmative Action Ruling Reveals. Milbank Quarterly Opinion. April 1, 2024.