By Govind Persad
Recently, Missouri expanded phase 2 vaccination eligibility with the goal of addressing disproportionate COVID-19 impacts.
Specifically, Missouri’s policy applies to “Disproportionately Affected Populations,” which is further defined as: “Populations at increased risk of acquiring or transmitting COVID-19, with emphasis on racial/ethnic minorities not otherwise included in 1B.”
This presents a much-debated and often misunderstood question I explore in a forthcoming University of Illinois Law Review article: can COVID-19 vaccine allocation legally recognize the outsized burden of cases and deaths that racial/ethnic minority communities have borne during the pandemic?
Individual Identities versus Neighborhood Variables
Understanding when race/ethnicity information may legally be used requires recognizing a distinction that has been most developed in education law: policies considering race as a neighborhood variable are typically legal, while those considering it as an individual identity are frequently not.
Some states, such as California, have long maintained strict limits on the use of individual students’ race in school assignments. In 2007, the Supreme Court decided Parents Involved, which struck down Seattle’s use of individual race in school assignments, and reaffirmed that any use of individual race — including to address racial disparities — would face strict judicial scrutiny.
In response to Parents Involved and even further-reaching state laws, many cities adopted school assignment plans that instead consider race as a neighborhood variable. The 6th Circuit drew on caselaw upholding such a school assignment plan, which did “not classify students by race and was not adopted with a segregative intent,” in order to uphold COVID-19 testing requirements for farmworkers against a charge that they discriminated against Latino Michiganders. The plaintiffs had pointed to Michigan’s statements supporting health equity as evidence of racial motivations.
For COVID-19 vaccine allocation, states can legally consider race as a neighborhood variable. For instance, they can base the number of vaccines a county receives, or whether residents of a given age are eligible for vaccination, on the CDC’s Social Vulnerability Index (“SVI”), which includes many factors including neighborhood-level racial demographics. The National Academies recommended this approach, and many states are using it. Despite political pushback, the use of the SVI and similar indices is legally sound.
Is a Pandemic Unique?
Some suggest that the National Academies, ACIP, and other groups have erred by not recommending the explicit use of individual race for vaccine eligibility. For instance, some argue that because Black Americans have died earlier in life from COVID-19, states should lower vaccine eligibility ages for them.
Varying eligibility ages based on individual race would improve on a one-size-fits-all eligibility cutoff, both in terms of overall public health and of narrowing inequities. But current law almost certainly forecloses a policy that bases eligibility on race. In 1995, the Supreme Court held in Adarand Constructors v. Pena, over a vigorous dissent by Justice Stevens, that
any person, of whatever race, has the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest judicial scrutiny.
Since then, in Parents Involved and other cases, the Supreme Court has placed ever-tighter restrictions on the use of individual race, even to address disparities. Courts evaluating pandemic policies have reaffirmed that strict scrutiny would apply to any use of individual racial classifications. While college admissions policies that use individual race have survived strict scrutiny, those policies — which may return to the Supreme Court — depend legally on a distinctive “diversity rationale” that would not apply to vaccine distribution.
Basing vaccine priority on individual race would be unlikely to satisfy strict scrutiny. Courts would require a showing that individual racial classifications were the only way to achieve an important objective, and that individually race-neutral policies, such as those using race as a neighborhood variable, had been tried and proven unsuccessful.
Both the National Academies and state policymakers have recommended, in recognition of these precedents, against basing vaccine allocation or eligibility on individual race. Experts on health disparities have also worried that basing eligibility on individual race would exacerbate stigma or misidentify disparities in risk as stemming from racial identity rather than structural manifestations of racism. Instead, policymakers have addressed disparities by lowering or eliminating eligibility age cutoffs in hard-hit ZIP codes and communities.
Best Practices for Improving Public Health and Addressing Disparities
So what to make of Missouri? Its policy is not clearly worded. If Missouri uses the Social Vulnerability Index or a similar approach to prioritize minority communities that have faced higher COVID-19 burdens, its policy is likely to pass legal muster.
But if Missouri bases vaccine eligibility on individual recipients’ racial identity, a successful legal challenge is likely — and even before that, it risks having its process derailed by litigation.
Ultimately, states designing vaccine allocation policies to improve public health and address stark disparities should recognize three key points:
- Policies that address racial disparities at a neighborhood level are legally distinct from, and legally favored over, policies that allocate vaccines based on individual race.
- Policies based on Native American status are viewed differently, and more favorably, by courts than those based on individual race.
- Ensuring that addressing racial disparities is not the sole or “predominant” motive for a vaccine allocation policy, but is instead mutually reinforcing with other policy goals, such as addressing economic and geographic disparities or reducing deaths and hospitalizations, further buttresses a policy’s legality.