- The Washington Times - Thursday, December 21, 2023

The Supreme Court’s ruling this year striking down affirmative action is impacting industries outside of education, with even a medical group looking to end diversity practices within a state podiatry board.

Do No Harm, a Virginia nonprofit aimed at protecting the health care industry from “a radical, divisive, and discriminatory ideology,” filed a federal lawsuit citing the 14th Amendment and arguing that Tennessee’s practice of considering race when making appointments to medical boards runs afoul of the Constitution’s equal protection clause.

Though the group doesn’t specifically cite the Supreme Court’s June ruling in Students for Fair Admissions v. UNC in its brief, it rests its case on the same premise: that the 14th Amendment doesn’t allow the government to classify people based on race without a compelling interest. According to court papers, one of the six members on the Tennessee Board of Podiatric Medical Examiners has to be from a racial minority.

“Such blatant racial discrimination against individuals who could sit on Tennessee’s Board of Podiatric Medical Examiners serves no legitimate government purpose. It is demeaning, patronizing, un-American, and unconstitutional,” reads the lawsuit, which was filed in November.

“State medical boards are given important responsibilities to oversee the quality of care in their state and the safety of patients. It is crucial that they be the most qualified physicians available. Like all aspects of health care, patient safety and patient concerns should be primary, not the skin color or the racial makeup of any oversight committee,” said Dr. Stanley Goldfarb, board chair of Do No Harm.

“If someone is excluded because of their race, that’s terrible. But if someone is included because of their race, that is terrible also,” he said. “The point is, they should pick people based on their merit.”

In the UNC case, a 6-3 Supreme Court ruled that the university’s practice of considering race as a factor in admissions ran afoul of the 14th Amendment. In a companion case, Students for Fair Admissions v. Harvard, the court ruled the same, reasoning the 14th Amendment is meant to ensure that laws apply to everyone equally regardless of race.

Ilya Shapiro, a senior fellow and director of constitutional studies at the Manhattan Institute, said many lower courts won’t want to extend the high court’s reasoning in the affirmative action cases to areas outside of education without a further ruling from the justices.

But he said more cases over racial preferences for recipients of federal funds could create circuit-court splits that return the issue to the justices for consideration.

“There will certainly be more battles,” Mr. Shapiro said. “The writing is on the wall.”

Edward Blum, who leads Students for Fair Admissions, filed the affirmative action lawsuits. He also sued several big law firms over their diversity, equity and inclusion practices in programs offered to law students and prospective hires after the high court victory. Some of the firms removed the race and gender eligibility requirements.

In addition, Mr. Blum filed a lawsuit against the U.S. Military Academy at West Point, New York, since the Supreme Court’s ruling excluded military schools.

The high court noted in its fourth footnote in the Harvard ruling that there are unique interests for the military regarding race — and its admissions qualifications differ from the holding against Harvard and UNC.

“No military academy is a party to these cases, however, and none of the courts below addressed the propriety of race-based admissions systems in that context. This opinion also does not address the issue, in light of the potentially distinct interests that military academies may present,” the footnote read.

Elliot Mincberg, senior fellow for People For the American Way, said he thinks the diversity, equity and inclusion challenges in the corporate world try to go beyond the high court’s affirmative action decision.

“The Court’s decision focuses specifically on affirmative action in college admissions, which are subject to Title VI and/or the equal protection clause. Private corporations have long been subject instead to Title VII, which bars discrimination but, according to court decisions over decades, does permit properly designed and implemented DEI programs. Several right-wing groups are pushing these lawsuits and likely will continue to do so,” Mr. Mincberg said.

“It’s difficult to predict what will happen, but I hope that private industry will carefully examine but continue DEI programs and that courts generally reject such lawsuits,” he added.

Government contractors also could be affected by the affirmative action holding.

Gene Hamilton, a lawyer with American First Legal, has been leading an effort to challenge race-based programs in various sectors, including lawsuits against Amazon and Meta for preferred hiring initiatives for minorities.

He predicts the issue of racial preferences being challenged in the employment context across sectors will be a growing point of litigation.

“The issue I think that we will start seeing more lawsuits, actual public facing lawsuits, in this space in the near future in the employment context,” Mr. Hamilton said. “The Supreme Court’s decision in Harvard was about six months ago and hopefully folks will be emboldened and recognize the fact that the landscape has changed and you can’t tolerate these types of discriminatory programs.”

“This stuff is everywhere,” he said. “It has infected every single part of society, and it is going to be rooted out.”

Meanwhile, a federal judge in July struck down a program in the Small Business Administration for disadvantaged business owners due to the presumption that race or ethnicity was a weakness.

And the colleges’ prohibition on using race for admissions criteria could trickle down to secondary education.

Parents and students at Thomas Jefferson High School for Science and Technology in Alexandria, Virginia, asked the Supreme Court to overrule the magnet school’s new admissions policy as unfair discrimination against Asian Americans. The 4th U.S. Circuit Court of Appeals ruled against the families.

The advocacy group Coalition for TJ says the policy, which reserves some slots at the highly selective school based on geography, was intended to promote Black and Hispanic students while limiting the number of Asian Americans, who had come to dominate the admissions process.

The group’s request for the Supreme Court to review the case is pending, and it would take four justices to vote in favor of hearing it for oral arguments to be scheduled.

Just this month, the First U.S. Circuit Court of Appeals ruled against a group of parents in Boston who argued that a public schools admission policy based on ZIP codes was biased against some White and Asian American students.

“It’s disappointing that just six months after the Supreme Court’s landmark affirmative action ruling — where it held that ‘eliminating racial discrimination means eliminating all of it’ — the First Circuit held today that it’s perfectly legal for Boston to use racial proxies to determine who is admitted to some of its best public schools,” said Erin Wilcox, an attorney with Pacific Legal Foundation.

“Pacific Legal Foundation has already asked the Supreme Court to strike down this kind of racial discrimination for good in the Coalition for TJ case, and the First Circuit’s ruling today is a perfect example of why it’s so important for the high court to take up this serious civil rights issue,” Ms. Wilcox said.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

Copyright © 2024 The Washington Times, LLC. Click here for reprint permission.

Please read our comment policy before commenting.

Click to Read More and View Comments

Click to Hide