Supreme Court of the United States.

What the Supreme Court’s Expected Ruling on Affirmative Action Might Mean for US Health Care

By Gregory Curfman

Affirmative action in higher education may soon be abolished by the Supreme Court, resulting from its review of Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina.

The consequences for the physician workforce may be dire. Diversity among physicians is a compelling interest in our increasingly diverse society. Without affirmative action in higher education, our physician workforce may become less diverse, and the quality of health care may suffer.

This article explains the history of affirmative action in the U.S., past Supreme Court decisions, and the key arguments being considered in the two cases currently under review.

The Diversity Rationale and the First Amendment

For 45 years, U.S. universities have practiced affirmative action as an admissions policy, granting tips to underrepresented minority applicants as part of a holistic admissions process. Affirmative action has provided educational opportunities for minority students and has diversified university campuses. Nevertheless, it has frequently been challenged in court.

The first affirmative action case to be decided by the Supreme Court, Regents of the University of California v. Allan Bakke (1978), involved an admissions program at the UC Davis School of Medicine. The school’s practice of allocating 16 of its 100 seats to underrepresented minority applicants was ruled unconstitutional by Justice Lewis Powell, who wrote the controlling opinion. The Justice allowed that even though quotas, such as at UC Davis, were not constitutionally acceptable, race could be considered as one factor in a holistic admissions program that considered many factors. Justice Powell pointed to Harvard’s admissions program as a model.

Justice Powell’s description in Bakke of Harvard’s holistic admissions plan has been closely examined by legal scholars and determined not to be a part of the central holding in Bakke, but commentary associated with the opinion, referred to as “dicta.” Dicta do not establish precedent for future cases. Further, Justice Powell endorsed Harvard’s holistic admissions plan based on a diversity rationale, in which, he claimed, diversity in a student body is believed to benefit the education of all students, not just those given admission tips based on race or ethnicity. The diversity rationale, he argued, was defensible based on academic freedom, which has its roots in the First Amendment. Academic freedom provides deference to universities to decide the curriculum that is taught, the professors who teach, and the students who are educated. Despite wide deference granted to universities on these matters, the First Amendment does not specifically address the issue of university admissions, and it would be a stretch to argue that the First Amendment grants deference to universities to admit students based on their race.

Grutter v. Bollinger and the Fourteenth Amendment

In this 2003 case involving the holistic admissions program at the University of Michigan Law School, which was patterned after Harvard’s, the Supreme Court revisited its decision in Bakke. Justice Sandra Day O’Connor wrote the opinion for the Court, in which she affirmed Justice Powell’s opinion in Bakke. In her opinion, she often referred to Justice Powell’s First Amendment justification for the diversity rationale, and she also contended that Michigan’s holistic admissions policy passed strict scrutiny and was constitutional based on the Equal Protection Clause of the Fourteenth Amendment.

The central question in both Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina is whether Grutter should be overruled. Given uncertainties surrounding the First Amendment argument for the diversity rationale and Justice O’Connor’s strict scrutiny analysis, the Court could find grounds for overruling Grutter and ending affirmative action in university admissions.

Title VI of the Civil Rights Act of 1964

While the Fourteenth Amendment applies to the University of North Carolina, a public university, it does not apply to Harvard, a private university. Title VI of the Civil Rights Act of 1964 (42 U.S.D. § 2000d), however, applies to both universities. Title VI states:

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

In his opinion in Bakke, Justice Stevens (concurring in part and dissenting in part) believed that the case could be decided solely based on Title VI without the need to address the Constitution. He believed that the language of Title VI was unambiguous and sufficient to overturn UC Davis’ set-aside admissions program. An amicus curiae brief submitted by the America First Legal Foundation on behalf of neither party in Students for Fair Admissions v. Harvard makes a similar argument. The brief states:

The language of Title VI makes no allowance for racial considerations in university admissions. It prohibits all forms of racial discrimination at universities that accept federal funds, with no exceptions for “compelling interests,” “diversity,” or “strict scrutiny.”

The amici believe, like Justice Stevens in Bakke, that Title VI excludes consideration of race by institutions receiving federal funds, as both Harvard and University of North Carolina do.

It is uncertain whether the Court will decide the two affirmative action cases based solely on Title VI, but the amici make a strong case for such a ruling. For its part, Harvard argues that Title VI is coextensive with, and essentially equivalent to, the Equal Protection Clause of the Fourteenth Amendment and should be applied in the same manner. Harvard’s interpretation of Title VI, if accepted by the Court, could allow affirmative action to survive based on an anti-subordination understanding of the Fourteenth Amendment. The anti-subordination principle would, according to Harvard’s view, also apply to Title VI.


Affirmative action in university and medical school admissions has been important public policy for our nation. Although affirmative action in medical school admissions has not been completely successful in achieving the goal of diversity (e.g., admission of Black male medical students remains suboptimal), the practice of affirmative action has still brought greater diversity to medical schools and the physician workforce.

People select their physician based on a variety of criteria, but some prefer a physician of their own race or ethnicity. This preference may reflect greater trust and improved communication with a physician of the same race or ethnicity. Surely, diversity among our nation’s physicians is a compelling societal interest, but without affirmative action, physician diversity will be difficult to achieve and sustain.

Gregory Curfman, M.D. is a visiting researcher at the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School. He is also the Deputy Editor of JAMA.

The Petrie-Flom Center Staff

The Petrie-Flom Center staff often posts updates, announcements, and guests posts on behalf of others.

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