Editor’s note: The opinions expressed by the author do not necessarily reflect the opinions of the AAMC or its members.
Friday, April 12, 2019
For more than a decade, the AAMC has worked to provide guidance that should inform the design and execution of admissions and other enrollment policies where issues of race and ethnicity are present. The Roadmap to Diversity and Excellence Series (Law and Policy, 2014; Evaluation, 2013; Holistic Review, 2010) provides practical, actionable guidance to help medical schools understand and act in light of the relevant legal, research, and practice landscape.
This week we learned that the U.S. Department of Education Office for Civil Rights (OCR) had resolved a complaint filed almost 14 years ago against Texas Tech University Health Sciences Center (TTUHSC). TTUHSC School of Medicine signed a resolution agreement ending the practice of considering race in admissions unless and until such time that it determines such consideration to be appropriate under the federal legal standards outlined by the OCR — and on the condition that it provides advance notice of that change to the OCR.
Many advocates for diversity in medicine have raised concerns that this resolution may mean a major retreat from — or worse, foreshadow a reversal of — settled law. These are legitimate questions and concerns, but they should not cloud the lens through which we view this resolution — what it stands for and what it doesn’t.
Three key points regarding the TTUHSC School of Medicine resolution are worth noting:
- This February 20, 2019, resolution agreement involves a single case with particular facts and circumstances. It is one among thousands that the OCR resolves annually. Moreover, unlike appellate court decisions, it is not precedential or binding (except with respect to the parties to the agreement).
- The March 7, 2019, letter that followed the resolution outlines the basics of the case investigation, cites governing federal case law, and synthesizes existing federal nondiscrimination legal standards. The letter does not express an intent to go beyond presently settled law, which permits the consideration of race in admissions in cases in which such consideration serves a compelling interest and is, in design, “narrowly tailored” to meet those ends. Importantly, the OCR did not question the legitimacy of the TTUHSC School of Medicine’s compelling interest in using race to meet its diversity goals.
- In its notably short (one paragraph) analysis, the OCR articulates concerns based on TTUHSC School of Medicine’s process relating to its consideration of race in admissions. It does not make actual findings, nor does it reach definitive conclusions of law regarding underlying facts.
Specifically, the OCR indicates that there was insufficient evidence of TTUHSC School of Medicine’s periodic review of its policies as required by federal law, including consideration of “whether its use of race-neutral alternative measures were sufficient, standing alone, to obtain the educational benefits that flow from student body diversity.” OCR also expressed concerns that TTUHSC School of Medicine was not able to articulate “how/when race [was] used” in admissions.
What, then, does this mean for admissions? The OCR’s summary of the law should serve as a reminder of what the courts since at least 2003 (in Grutter v. Bollinger) have advised: Institutions may sustain race-conscious admissions decisions under federal nondiscrimination law, but must pursue a process of periodic review of their policies, based on evidence, to assure (among other things) that any consideration of race in admissions is necessary in order to achieve compelling interests like the benefits of diversity.
Pursuing diversity is imperative for medical schools, and achievement of that goal is possible, often involving considerations of race in the design of various enrollment policies and programs.
Pursuing diversity is imperative for medical schools, and achievement of that goal is possible, often involving considerations of race in the design of various enrollment policies and programs. Medical schools must undertake the important work of following the principles of law that have been developed by the federal courts and agencies since the Regents of the University of California v. Bakke decision in 1978 — with a careful assessment of the applicability of those principles to institution-specific evidence. Facts do matter. The rigor required for a race-conscious admissions policy can be daunting, especially where challenges to these policies have always been a part of the environment in which schools operate. But schools can and do successfully withstand these challenges, as most recently evidenced by the University of Texas at Austin in the 2016 Fisher v. University of Texas decision.
In the end, legal sustainability is a key element in policy success. As in any arena, asking the right questions, engaging around the right principles, and assuring a process of rigor in review and evaluation of evidence over time are essential elements in effective, long-lasting policy-making.
Art Coleman, JD, is a managing partner and co-founder of EducationCounsel, LLC. He previously served as Deputy Assistant Secretary in the U.S. Department of Education’s Office for Civil Rights.
Jamie Lewis Keith, JD, is a partner at EducationCounsel. She previously served as Vice President, General Counsel, and University Secretary at the University of Florida and as the first primary inside counsel for MIT.
EducationCounsel has provided policy, strategy, and legal consulting services to AAMC’s Advisory Committee on Advancing Holistic Review (and its predecessors) since 2008.