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II.      Background

Legal Context

The Texas A&M University System Health Science Center has long endeavored to increase the diversity of its entering classes. In Regents of the University of California vs. Bakke, 438 U.S. 265, 98 S.Ct. 2773 (1979), the U.S. Supreme Court ruled that race and ethnicity could be used as a "plus" along with numerous other factors in selecting students for admission to medical school. For many years following Bakke, the A&M System HSC, and all other Texas Health Related Institutions (HRI's), utilized race and ethnicity to some degree in considering applicants for health professions programs. However, in Hopwood vs. Texas, 78 F.3d 932 (C.A. 5 1996), the Fifth Circuit Court of Appeals held that diversity was not a compelling state interest sufficient to support the use of race and ethnicity in admissions decisions. In 2003, however, the Supreme Court in Grutter v. Bollinger, 539 U.S. 306, 123 S.Ct. 2325 (2003), the Court held that achieving diversity in the student body of a public law school was a compelling state interest, and that the school's use of race as a "plus factor" in making admissions decisions was a proper means to achieve it.

It is established law in the U.S. that all racial classifications imposed by government must be analyzed by a reviewing court under "strict scrutiny." Such classifications are constitutional only if they are "narrowly tailored" to further "compelling governmental interests." See Grutter v. Bollinger, 123 S.Ct. 2325, 2328. The Supreme Court reviewed the law school's program to determine if it was narrowly tailored to achieve the interest of diversity. In finding that the program was narrowly tailored, the Court noted that there is a legal tradition of "giving a degree of deference to a university's academic decisions, within constitutionally prescribed limits." Grutter at 2339.

One of the most important factors supporting the law school's case was that it had "determined, based on its experience and expertise, that a "critical mass" of underrepresented minorities is necessary to further its compelling interest in securing educational benefits of a diverse student body." Grutter, at 2341. The critical mass concept was defined by reference to the educational benefits of diversity. The court noted the benefits of diversity and quoted with approval Justice Powell's opinion in Bakke, saying that the university, by claiming the "right to select those students who will contribute the most to the "robust exchange of ideas . . . seek[s] to achieve a goal that is of paramount importance in the fulfillment of its mission." Grutter at 2339. The Court agreed that the compelling state interest of diversity was well-supported by numerous studies showing that it promotes learning outcomes, and "better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals." Grutter at 2340, quoting Brief for American Educational Research Association et al. The law school's program was narrowly tailored because it used race and ethnicity as a "plus' in an applicant's file but did not insulate the individual from comparison with all other candidates. It did not use a quota system or race-balancing.

The Court specifically stated that universities may legally establish permissible goals for enrollment of minorities and that these are distinct from quotas. In describing what it considers to be a legally sound race-conscious admissions program, the court stated that admissions programs must be "flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant's race or ethnicity the defining feature of his or her application. The importance of this individualized consideration in the context of a race-conscious admissions program is paramount." Grutter at 2343.

In determining if the program was narrowly tailored, the Court noted that the law school was required to consider race-neutral alternatives before it resorted to using race as a factor. However, it was not required to exhaust every conceivable race-neutral alternative, and, most importantly, it was not required to "choose between maintaining a reputation for excellence or fulfilling a commitment to provide educational opportunities to members of all racial groups." Grutter at 2324. It also noted that narrow tailoring requires that any race-conscious admissions program not unduly harm members of any racial group. The law school's plan accomplished this by considering numerous elements of diversity, i.e., far more than just race or ethnicity, and by its individualized assessment of applicants.

Finally, the Court emphasized that any race-based program must be limited in time. In the words of the Court, "This requirement reflects that racial classifications, however compelling their goals, are potentially so dangerous that they may be employed no more broadly than the interest demands." Grutter at 2346. The court noted that durational requirements can be met by sunset provisions in the policies and periodic review to determine if such programs are still necessary to achieve a diverse student body.

Health Professions Educational Context

The use of race and ethnicity in admissions decisions is of such crucial importance to the future of health professions education and the elimination of health disparities in the United States, that the Association of American Medical Colleges (AAMC) submitted an amicus curiae brief in support of the law school's position in Grutter. The AAMC was joined in the brief by the major professional organizations representing the academic and professional programs within the A&M System Health Science Center. These included the American Dental Education Association, the Association of Academic Health Centers, Association of Schools of Public Health, and the American Public Health Association.

Jordan J. Cohen, M.D., President of the Association of American Medical Colleges spoke for all of American medical education, including the A&M System Health Science Center, when he stated:

The facts are clear. In the near term, there is simply no alternative to the use of race-conscious decision making in medical school admission if our society is to have the benefit of a reasonably diverse physician workforce. No amount of rhetoric can avoid the demographic reality of a burgeoning, underrepresented minority population that, for a variety of reasons, has, on average, significantly lower levels of academic achievement. If we are precluded from using race-conscience decision making in medical school admission, then the nation must accept the reality of still more decades in which the physician workforce is incapable of providing an otherwise achievable quality healthcare for large segments of the American people.

Dr. Cohen's article "The Consequence of Premature Abandonment of Affirmative Action in American Medical School Admissions," was published in the March 2003 issue of the Journal of the American Medical Association (JAMA) and quoted in the brief filed with the Court. While Dr. Cohen spoke specifically of medical education, the inclusion of the academic associations representing dentistry, public health and specialty organizations as signatories on the brief makes clear that he spoke for all health profession disciplines.

In recognition of the severity of the problem which underrepresentation of minorities in higher education, including health professions, presents for Texas, and of the vital importance to Texas of achieving an ethnic and racially diverse workforce, the Texas Higher Education Coordinating Board (THECB) formulated the Closing the Gaps initiative to increase the number of underrepresented minorities in Texas higher education. In support of this goal, then-THECB Commissioner Don Brown, recommended the Texas Legislature fund an additional $31.1 million for Health Related Institutions in Texas. These funds will be allocated specifically to those Health Related Institutions which demonstrate "participation and success of Hispanic and African American students." This represents a tangible commitment on the part of the THECB to recognizing and rewarding the efforts of HRI's in accomplishing this goal.

For a health professions class to achieve cultural competence, there must a "critical mass" of diverse students. "Critical mass" is that number of students necessary to assure broad and complete discussion and consideration of racial and ethnic differences in health care. While it is difficult to quantify, it is obvious that it is not achieved when no or scarcely any racial or ethnic minority students are present in the educational environment. The Health Science Center's determination of the "critical mass" for any of its components will be made based on institutional and professional experience and expertise. As stated by the court in the Grutter case:

The Law School does not premise its need for critical mass on "any belief that minority students always (or even consistently) express some characteristic minority viewpoint on any issue." Brief for Respondent Bollinger et al. 30. To the contrary, diminishing the force of such stereotypes is both a crucial part of the Law School's mission, and one that it cannot accomplish with only token numbers of minority students. Just as growing up in a particular region or having particular professional experiences is likely to affect an individual's views, so too is one's own, unique experience of being a racial minority in a society, like our own, in which race unfortunately still matters. The Law School has determined, based on its experience and expertise, that a "critical mass" of underrepresented minorities is necessary to further its compelling state interest in securing the educational benefits of a diverse student body. Grutter at 2341.

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