The U.S. Supreme Court's seminal 1978 Bakke decision, now 25 years old, has an ambiguous and endangered legacy. Justice Lewis Powell's opinion provided a justification that allowed leaders in medical education to pursue some affirmative action policies while at the same time undermining many other potential defenses. Powell asserted that medical schools might have a "compelling interest" in the creation of a diverse student body. But Powell's compromise jeopardized affirmative action since it blocked many justifications for responding to increases in political opposition and legal challenges. The Bakke decision and its moral background and legal legacy are traced and analyzed. Despite recent legal setbacks, the framework sketched by Powell can be used to defend diversity in medical education both morally and legally as a "compelling state interest." Because trust is a central component of the physician-patient relationship and a prerequisite to the profession's ability to provide effective medical care, the state has a compelling interest in training physicians with whom patients can feel comfortable and safe if the population is (1) distrustful; (2) underserved; (3) faces significant discrimination in the allocation of benefits, goods and services and (4) affirmative action programs would be likely to promote their trust in the system. Similar narrowly-tailored arguments could be used in other professions and for other groups. Bakke is an important background for the pending Grutter case.
Affirmative action programs of all types are under attack legally and politically. Although medical schools have not been specifically targeted, their affirmative action programs, like others in higher education, are potentially in danger. This article examines the current legal status of affirmative action in medical education and concludes that a refurbished defense of such programs is essential if they are to survive impending judicial and political scrutiny. An analysis of existing case law and available evidence suggests that a carefully reinvigorated diversity argument is the tactic most likely to pass constitutional muster, as well as the justification most likely to blunt growing public and political opposition to admissions policies that take race and ethnicity into consideration.
Novick, MD, MPH r r r r r r r r r r r r r r r r r r r r r r r r r r r r r r r r r r r r r r r r r r r r r r r r r r r r r r r r r r r r r r r r r r r r r r r r r r r r r r r r r r r r r
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