This article was originally published in the Healthcare Law Insights blog on the Husch Blackwell website, and is published here with the author's permission. Blog has been edited for publication on WisBar, with author approval.​

A medical school applicant recently filed suit, alleging that several Texas medical schools improperly rejected him by basing their admissions decisions on race and gender. The complaint asserts that these schools (along with “nearly every school and university in the United States”) participate in the practice known as affirmative action, giving preference to women and non-Asian minorities rather than candidates with more impressive academic accomplishments.

According to the complaint, the plaintiff intends to reapply for medical school, but alleges that these race and sex “biases” make it impossible for him to fairly compete with other applicants. The plaintiff seeks declaratory and injunctive relief that prohibits these schools from making their admissions decisions on the basis of race or sex. The plaintiff also seeks to permanently enjoin these schools from “asking or allowing an applicant for admissions to reveal their race or sex.”

This lawsuit has been filed as the conservative majority of the US. Supreme Court is poised to decide two affirmative action cases, which many believe will result in affirmative action being a thing of the past.

The current wave of pending litigation around the issue of race in admissions provides an opportunity to medical schools to take stock of current practices and assess the impact of potentially shifting case law on diversity practices and initiatives.

History of Affirmative Action

In 1961, President John F. Kennedy issued Executive Order 10925, establishing the President’s Committee on Equal Employment Opportunity and requiring federal contractors to:

take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color or national origin.

Shortly thereafter, the concept of affirmative action found its way into the education sector, with more and more universities focusing on increasing the admission of historically underrepresented individuals to their institutions in an attempt to combat systemic racism.

Over the decades, affirmative action has been molded and shaped by legal decisions, resulting in what we now know to be a lawful practice: considering race and ethnicity as one factor among many for purposes of selecting a varied student body.

Current Demographics of Medical Schools

According to the Association of American Medical College MD-Granting Medical School Enrollment report, white men and women account for more than 44% of medical school admittees for the 2022-2023 school year. The percentages of racially and ethnically diverse candidates pale in comparison. For example, for the school year 2022-23, 8% of admittees are Black, 6.7% are Hispanic or Latino, 0.2% are Indigenous, and 24% are Asian.

Although the number of historically underrepresented minorities in medical schools within the United States has increased over the years, the racial and ethnic differences between medical school graduates and the overall population persists. This often results in health care inequities for underserved communities, as patient populations are being treated by health care providers who may not understand patients’ needs, either from a religious or cultural standpoint, and patients may feel a lack of trust and be less inclined to seek care.

Understandably, many medical schools and residency programs are attempting to tackle these disparities in admissions by considering applicants’ race and/or ethnicity, among many other factors, to evaluate an applicant as a whole. Accreditation standards (e.g., with the Liaison Committee on Medical Education and the American Osteopathic Association) demand that medical schools consider diversity categories relevant to their missions and implement programs to promote diversity. These efforts are supported by the National Institutes of Health, which released a Notice of Interest in Diversity in 2019, encouraging institutions to:

diversify their student and faculty populations to enhance the participation of individuals from groups identified as underrepresented (including, for example, racial/ethnic minorities, individuals with disabilities, and those from disadvantaged backgrounds, such as individuals who were unhoused, in the foster system, or grew up in rural areas) in the biomedical, clinical, behavioral, and social sciences.

What This Means for Medical Schools

So, what does the potential end of affirmative action mean for these medical schools? The Supreme Court’s ruling on the merits likely will either affirm, alter, or reverse longstanding Supreme Court precedent that currently allows race-conscious practices if they satisfy strict scrutiny (that is, if they are narrowly tailored to serve a compelling governmental interest, including remedying identified past discrimination or promoting the educational benefits of diversity).

Until the Supreme Court releases its decision on affirmative action, medical schools can continue to use their current practices with respect to admissions (assuming those practices are lawful), while preparing for a potential change in policy. For example, we recommend that medical schools inventory their policies related to recruitment, admissions, and financial aid to determine whether race or ethnicity are factors considered and whether significant revisions would be required based on a change in Supreme Court precedent.

Medical schools may also want to consider preparing and/or releasing a statement to their stakeholders and/or the public, reaffirming the institution’s commitment to diversity, equity, and inclusion.

As a final note, medical schools should remember that there are many dimensions of diversity – including socioeconomic status, familial status, location in which the applicant lives or lived, first generation scholars, languages spoken, and prior work experience, for example – all of which can help admissions committees select the most qualified students without considering race.

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