Smith, Part 2, 2009, Pipeline Programs in the Health Professions

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852 JOURNAL OF THE NATIONAL MEDICAL ASSOCIATION VOL. 101, NO. 9, SEPTEMBER 2009

O R I G I N A L C O M M U N I C A T I O N

BACKGROUND

The laws of the United States and correspondinglegislative action, such as affirmative action,have always played an integral role in expandingequal opportunity and access in education, health care,housing, and in opening doors within the democraticinstitutions of American society. 1 However, in the last2 decades, the need for the continuation of affirmativeaction programs, particularly in education, has beenunder intense scrutiny in the courts and the topic of statevoter initiatives or legislative action in Florida, Texas,California, Michigan, and Washington. 2 In conjunctionwith the November 2008 elections, efforts to outlaw theuse of race, ethnicity, sex, and national origin in pub-lic education programs have been the subject of intensedebate and antiaffirmative action campaigns targetedat Arizona, Oklahoma, Missouri, Nebraska, and Colo-rado. 3 Referred to as the Super Tuesday of equality bystate voter-sponsored initiative proponents lobbying toremove affirmative action in public education program-ming, including student pipeline programs, these ballotinitiatives managed to only make their way onto the bal-lots in Colorado and Nebraska. 4,5

On November 4, 2008, Colorado became the rststate to defeat the state-sponsored antiafrmativeaction voter initiative known as Amendment 46. How-ever, with passage of Initiative 424 in Nebraska, theability to ensure diversity in the public workforce andeducational sectors faces new challenges. 6,7 In particular,the University of Nebraska Medical Center, other cam-

puses in the University of Nebraska System, heavily

Author Affiliations: Health Services Research & Administration (Dr Smith,associate vice chancellor for academic affairs, chief student affairs officer,associate professor), Internal Medicine-Pediatrics (Dr Nsiah-Kumi, assistant

Background: Despite recent challenges to educationalpipeline programs, these academic enrichment programsare still an integral component in diversifying the health pro-fessions and reducing health disparities. This is part 2 of a 2-

part series on the role of pipeline programs in increasing thenumber of racial and ethnic minorities in the health profes-sions and addressing related health disparities. Part 1 of thisseries looked at the role of pipeline programs in achieving adiverse health professional workforce and provided strate-gies to expand pipeline programs.

Methods: This paper presents an historical overview of affir-mative action case law, antiaffirmative action legislation,and race-conscious and race-neutral admission programs ineducation. Additionally, part 2 reviews current legal theoryand related law that impact the diversity and cultural com-petence pipeline programming at higher-education institu-

tions. Finally, based on recommendations from a review oflegal and other literature, the authors offer recommenda-tions for reviewing and preserving diverse pipeline programsfor health professional schools.

Conclusion: Affirmative action is an essential legal meansto ensure the diversity-related educational programs in thehealth profession educational programs. Antiaffirmativeaction legislation and state-sponsored antiaffirmative voterinitiatives have the potential to limit the number of under-represented minorities in the health professions and createeven greater opportunity gaps and educational disparities.Therefore, we must shift the paradigm and reframe the dia-

logue involving affirmative action and move from debate toa collaborative discussion in order to address the historicaland contemporary disparities that make affirmative actionnecessary today.

Keywords: health disparities n children/adolescents nminoritiesn education

J Natl Med Assoc. 2009;101:852-863

Pipeline Programs in the Health Professions,Part 2: The Impact of Recent Legal Challengesto Affirmative ActionSonya G. Smith, EdD, JD; Phyllis A. Nsiah-Kumi, MD, MPH; Pamela R. Jones, PhD, MPH, RN;Rubens J. Pamies, MD, FACP

professor), Community-Based HealthCollege of Nursing, Health Promo-tion, Social and Behavioral HealthCollege of Public Health (Dr Jones,assistant professor), University of Nebraska Medical Center (Dr Pamies, vicechancellor for academic affairs, dean of graduate studies, professor ofmedicine), Omaha, Nebraska.Corresponding Author: Sonya G. Smith, EdD, JD, Associate Vice Chancel-lor for Academic Affairs, Chief Student Affairs Officer, Associate Profes-sor, Health Services Research & Administration, University of NebraskaMedical Center, 984250 Nebraska Medical Center, Omaha, NE 68198-4250([email protected]).


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JOURNAL OF THE NATIONAL MEDICAL ASSOCIATION VOL. 101, NO. 9, SEPTEMBER 2009 853

PIPELINE PROGRAMS AND RECENT LEGAL CHALLENGES

populated underrepresented minority (URM) communi-ties, and concerned citizens, eager to address the dispro-

portionate number of students of color entering medicalschools and the health care professions, are looking toother states where similar antiafrmative action legis-lation has passed in order to discern the possible impactand develop lawful diversity initiatives. 8

In light of such current political action and ongoingassaults on equal-access P-16 pipeline programs, it isimperative to review the history of afrmative actionlaw in America and discuss the impact of recent chal-lenges aimed at diversity programs to increase URMs inthe health professions. As asserted in part 1, pipeline

programs are an effective strategy for increasing the rep-resentation of racial and ethnic minorities in the health

professions and reducing health disparities. A discus-sion of pipeline programs, particularly those dedicatedto improving the number of URMs in medicine, is pro-vided in greater detail in the rst part of this series.

To fully appreciate the impact of this type of legisla-tion on P-16 pipeline programs and other projectsdesigned to increase diversity in the health professions,we begin with a review of afrmative action legislationand subsequent antiafrmative action laws in America.These laws are discussed in the context of equal oppor-tunity legislation, US Supreme Court education, andafrmative action case law, state postsecondary percent-age plans, and state-sponsored voter initiatives affecting

public education. Additionally, because data are readilyavailable in California, a review of the impact of theantiafrmative action ballot initiative on Californiascollege and universities higher-education admissions is

provided. Finally, despite the dissension surroundingantiafrmative programming, recommendations relatedto furthering diversity pipeline programs in the health

professions are also included. However, these recom-mendations should not be construed as legal advice on

behalf of any of the authors. Additionally, as stated in part 1, afrmative action , for purposes of this article, isdened as programs, policies, laws, and strategic plansdesigned to increase the number of historically under-represented and disadvantaged groups who have con-fronted unlawful societal discrimination in education,employment, government, and other areas.

AN OVERVIEW OFAFFIRMATIVE ACTION ANDEQUAL-OPPORTUNITY LAW

Many of the issues of educational access and increas-ing the health professional pipeline have evolved fromantidiscrimination and afrmative action case lawand legislation in the employment context, federal con-tracting, and educational arena. Antidiscrimination lawsstressed the importance of nondiscrimination employ-ment and federal government contracting, particularly inrelation to race, color, and national origin. 9 Closely tied

to antidiscrimination laws is afrmative action legisla-tion, which requires employers and businesses to takeafrmative steps with the regard to race, sex, nationalorigin, and color in federal contracting and the fair hir-ing and creation of equal employment opportunity. 9

However, the rst use of the term afrmative action was in the 1960s by President John F. Kennedy in sev-

eral executive orders focusing on antidiscriminationlaws and calling for equality 10 in reference to an equalopportunity policy designed to improve integration infederally nanced work projects. 11 Although in 1941President Franklin D. Roosevelt issued the rst execu-tive order8802 12 outlawing antidiscrimination mea-sures in employment by private employers contractingwith the federal government above a specic monetaryamount, almost every US president has reissued orrevised these orders.

In 1965, President Lyndon B. Johnson issued Execu-tive Order 11246, 13 forbidding discrimination on the

basis of race, color, national origin, and religion. It waslater amended in 1967 to outlaw sex discrimination. 14 Additionally, President Richard Nixon issued ExecutiveOrder 11478, prohibiting discrimination in federalemployment on the basis of race, color, religion, sex, ornational origin. 15 Other amending executive orders wereissued by Presidents Jimmy Carter and Bill Clinton.President Carter added handicap and age as protectedclasses in terms of employment discrimination and, in1998, President Clinton, under Executive Order 13087,made sexual orientation discrimination unlawful in fed-eral employment. 16,17 During the 1970s, antidiscrimina-tion laws and afrmative action policy were expanded toinclude postsecondary admission programs. 11 Equally,afrmative action plans were put in place as race- and/orsex-specic plans designed to provide a remedy for pres-ent and persistent effects of historical discriminationagainst African Americans and women, along with anyeffects of discrimination motivated by unconscious

biases and stereotypes 18 (Figure 1).Title VII of the Civil Rights Act of 1964, which for-

bids public and private employers, labor organizations,and employment agencies from discriminating in theworkplace on the basis of race, color, sex, religion, andnational origin, is among the most signicant civil rightsand antidiscrimination legislation. However, it does notuse the phrase afrmative action .10,18,19 The most impor-tant amendments to Title VII came in 1972, extendingcoverage to not only federal and state governments, butalso to local governments. 18 The Fourteenth Amendment 20 of the US Constitution also provides protection under thedue process and equal protection clauses, which makes itunlawful for states and municipalities to discriminate. 18

In the same way, Title VI of the Civil Rights Act of1964 makes it unlawful to discriminate on the basis ofrace, color, or national origin in any program or activitywhich receives federal nancial assistance. 21 This


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includes K-12 and postsecondary institutions receivingfederal grants, participating in federal student loan pro-grams, and obtaining federal contracts. 18 Additionally,states receiving federal Medicaid and Medicare dollarsare covered by antidiscrimination legislation such asTitle VI. 22 Likewise, Title IX of the Educational Amend-ments of 1972 prohibits sex discrimination in any edu-

cational program or activity receiving federal nancialassistance. 18,23 Therefore, if any student or faculty mem- ber receives federal grants or loans, public and private postsecondary institutions must comply with Titles VI,VII, and IX civil rights legislation (Figure 1).

Both antidiscrimination laws and afrmative actionlegislation have major implications for the implementa-tion, design, and maintenance of academic readiness,outreach, and medical school pipeline programs. Mostafrmative action litigation and policy development has

been specically directed at the legality of race-speciccollege admissions criteria. 24-26 Nevertheless, an out-growth of antidiscrimination and afrmative action lawshas been the use of afrmative action in the context ofcollege admissions and higher-education diversity. Astime progressed, more colleges and universities startedto apply afrmative action in new ways in order to notonly diversify faculty and staff but the student body.

Nevertheless, afrmative action continued to be contro-versial and criticized as watering down the application

pool, and opponents of afrmative action charged thatless-qualied minorities and women were admitted in

place of more-qualied white students. 27-29

In response to this criticism, higher-education insti-tutions devised new pipeline and preprofessional pro-grams as a further outgrowth of afrmative action prin-ciples to increase the success of racial and ethnicminorities and women in the admissions process, andimprove academic readiness for graduate and medicalschools. Traditionally, due to lack of social capital, seg-regation and discrimination, and inequality in nancialresources, these groups were denied access to educa-tional opportunities and equal protection under thelaw. 1,30 These new pipeline and preprofessional programs

provide minorities and women with improved academic preparation and skill sets required for success.

THE US SUPREME COURTEQUAL OPPORTUNITY EDUCATIONCASE LAW

The quest for educational equality began with thelandmark ruling, Brown v Board of Education in 1954,declaring that separate but equal was no longer thelaw of the land in terms of segregated black and white

public schools. 30 Following this landmark case was Regents of the University of California v Bakke ( Bakke),striking down the University of California medicalschools 2-tiered admissions policies, including settingaside admission spots for African Americans and

enabling the white applicant who brought the case to beadmitted. 31 Because the medical school had 16 set-asidesfor minority students in the entering class, Bakke, awhite candidate for admission, claimed that the univer-sitys medical school had unlawfully denied him admis-sion under the Equal Protection Clause and Title VI ofthe Civil Rights Act of 1964. 31

Most notably, Bakke stands for the proposition thatachieving a diverse student body in academia is a suf-ciently compelling state interest; thus, the consider-ation of race and ethnicity, among many other factors, isa constitutionally legitimate means of achieving thisgoal. 31 Other possible diverse admission factors asserted

by the Court were talents, economic background, inter-est, and geographical region. 31

Bakke further outlawed specic set-asides, quotas,and separate admission tracks for racial and ethnic groupsin admissions but permitted universities under the Four-teenth Amendment to voluntarily establish admissions

programs based on racial preferences to remedy past dis-crimination. 31,32 Under the Courts ruling, all race-con-scious admissions programs were subject to the most rig-orous legal test, strict scrutiny. 31 The strict scrutiny testrequires that the state show (1) it has a compelling inter-est in its race/ethnicity-based program or policy deci-sion in order to achieve a mission such as the educational

benets of diversity; (2) the race/ethnicity-conscious program and/or policy decision is necessary to addressissues of equal opportunity consistent with the universitymission and education focus, after having evaluated raceneutral alternatives; (3) the race-conscious program or

policy is reasonably limited in time and scope; and (4) anarrowly tailored means is used to achieve the statescompelling interest. 2,31,33,34

The compelling state interest portion of the strictscrutiny legal standard has 2 prongs. The governmentmust be able to show that its reason for considering raceas a factor is not based on prejudice or racial animosity

but is intended to serve a legitimate and highly substan-tial government interest. Finally, the race-based policyand/or decision must also be necessary to either achieveor protect the compelling interest such as the educa-tional benets of diversity 32,34 (Figure 2).

In looking at whether a race/ethnic-based admissions program is narrowly tailored, the Court will look at a public universitys diversity program, which is the meansit is using to achieve a compelling state interest, such asthe educational benets of a diverse student body, to see(1) if there is a precise t in which race and ethnicity areconsidered in a limited manner; (2) the necessity of usingrace/ethnicity to achieve an end goal, such as the educa-tional benet of a diverse student body; (3) the exibilityof the race-based program; (4) the burden placed on theracial/ethnic nonbeneciaries of the program; and (5) ifthere is an end point to the race/ethnic-based program. 2,33-35 Although Bakke remains one of the major cases by


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Figure 1. Key Affirmative Action Events and Antidiscrimination Laws


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which the constitutionality of race-conscious admissions programs is judged, even after 1978, the lower federal andstate courts continued to be divided regarding the consti-tutional viability and the meaning of the legal standard forthe use of race set forth in Bakke.31,36-39

In 2003, the US Supreme Court joined 2 cases andhanded down a set of historical rulings that would also

forever shape the landscape of diversity in higher educa-tion. Factually, in the 2 cases, Grutter v Bollinger et al (Grutter ) and Gratz et al v Bollinger et al (Gratz ), 2 whitestudents alleged that they, respectively, had been deniedadmission to the University of MichiganAnn Arbor lawschool and undergraduate program in violation of the

equal protection clause of the Fourteenth Amendment ofthe US Constitution, Title VI of the Civil Rights Act of1964, and 42 USC 1981. 40,41 The Court upheld the law-fulness of the University of Michigan law schools admis-sions policy, but because the undergraduate policy wasnot sufciently narrowly tailored, 6 of the justicesfound the undergraduate admissions policy unlawful. 40,41

Writing for the majority in Grutter, Justice OConnor,relying on the strict scrutiny test triggered by race/eth-nicity-based programs, reafrmed that public educationalinstitutions seeking diversity must do so in a narrowlytailored form but also agreed with Bakke that the rele-vant context mattered and not every decision inuenced

Figure 2. Strict Scrutiny Legal Standard and Race-Conscious Policies and Programs


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by race was equally objectionable. 37,41 Importantly, theUS Supreme Court deferred to the University of Michi-gans assessment that diversity was essential to its missionand that, as Justice Powell had written in the Bakke opin-ion, student body diversity is a compelling state interestthat could justify the use of race in university admis-sions. 37,41 The Court also held that the law school did not

violate the law by seeking to enroll a critical mass ofminority students and that some attention to numberscould be paid without constituting a quota system. 37,41

Specically, the Court in Grutter not only agreed thathigher-education diversity could serve as a compellingstate interest but agreed that the University of Michiganlaw schools admissions policy, which included race as a

plus in its holistic and individualized review of appli-cants based on many factors, was narrowly tailored understrict scrutiny, as Justice Powell had laid out in Bakke.40,41 In contrast, the Court, in Gratz , struck down the Univer-sity of Michigans undergraduate admissions point-basedafrmative action policy selection index due to itsinability to provide an individualized evaluation of theapplicants les, which violated narrowly tailoring andoperated very similar to the quota system in Bakke.40,41

The major implication for the Gratz and Grutter casesis that whether a race/ethnicity-based public education

policy or program will be held lawful depends upon howit is applied (Figure 1). Therefore, some confusion stillexists about the application of race/ethnicity-based poli-cies and programs in public education and how to suc-cessfully implement them in a lawful context. 37

Two new cases focusing on race-based admissions programs came before the US Supreme Court in 2007.These cases were Parents Involved in Community Schoolsv Seattle School District No. 1 (Seattle ) and Meredith v

Jefferson County Board of Education ( Louisville )42,43 (Figure 1). The Seattle and Louisville cases were decidedin June 2007 and were not cases involving remedies ofdejure or past desegregation. The Louisville case involveda white plaintiff in Louisville, Kentucky, whose son had

been denied a transfer to attend kindergarten in the Jef-ferson County Public Schools, which had adopted a race-conscious school assignment plan. Under this plan,schools were to seek black student enrollments between15% and 50%, a target based on the demographics of the

public schools in the county. 42-44In the Seattle case, the Seattle school district embraced

an open choice plan for 10 high schools, and 5 of the 10high schools were usually overly requested. Studentswishing to attend overly requested high schools wereassigned to these schools based on 4 tiebreakers: (1) a

preference for keeping siblings in the same school, (2) anintegration tiebreaker, (3) distance from home to school,and (4) a lottery system. 42-44 If 1 of the 5 oversubscribedhigh schools had a racial imbalance, dened as white andnonwhite enrollments, not within 10 percentage points ofthe school districts demographics, the integration tie-

breaker was utilized. 42-44 Specically, African Americanstudents were classied as blacks and all other non-white students were placed together in a category calledother. Comparing racial variances within the schoolsstudent body composition and percentages of all studentsin the district as part of their decision making process, theSeattle school district focused on racial imbalances in

order to attempt to bring high schools closer to a 60%nonwhite and a 40% white balance. 42-44

Because both the school districts in the Louisvilleand the Seattle cases employed race-conscious policies,this triggered evaluation under the strict scrutiny stan-dard, thereby requiring each district to demonstrate thatthe policies were narrowly tailored to promote a compel-ling governmental interest. 44 Specically, race-conscious

policies: 1) explicitly use racial classications as a fac-tor in evaluating a candidates admission to an educa-tional program, and 2) may be policies that appear to beracially neutral on their face, but the motive for utilizingthe policy is indeed discriminatory. 45

Importantly, it must be noted that the two school dis-tricts in the Louisville and Seattle cases were not pursuingthese race-based or race-conscious plans to further the edu-cational benets of diversity, nor did the plans involve aholistic review of factors for admission such as studentstalents or socio-economic background. In other words,diversity was dened solely by race and ethnicity. 42-44

Because the districts did not prove that the use ofrace was necessary to achieve their prescribed goals andthat each had not considered race-neutral alternatives,the Court ruled that neither of the districts had satisedthe strict scrutiny legal standard. However, based onthese cases, race and ethnicity can still be used as 1 ofmultiple factors in admissions. 42

Nevertheless, the Louisville and Seattle cases demon-strate that despite Grutter, in public educational institu-tions and related pipeline programming, caution must beexercised in attempts to establish a critical mass ofminority students. 46 It is important to note that most legalscholars agree the achievement of a critical mass isstill somewhat illusive terminology and needs furtherclarication from the Court. 32,33 For example, a criticalmass of URM can include a clearly stated objective butnot operate as a rigid quota system. The Grutter Courtsreference to critical mass theory incorporated studentsof color in terms of (1) meaningful numbers, (2)meaningful representation, (3) a number that encour-ages underrepresented minority students to participate inthe classroom and not feel isolated, (4) students fromgroups which have been historically discriminatedagainst, (5) individuals who are likely to have experi-ences and perspectives of special importance to the [edu-cational institutions] mission, and (6) minority studentswho do not feel like they must be spokespersons for theirrace or ethnic group nor feel uncomfortable discussingexperiences that may differ from the majority. 2,33,34,41


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Furthermore, critical mass must be linked directlyto the educational benets of diversity that the educa-tional institution or medical school has as its mission. 2,41 Additionally, race-neutral alternatives must be consid-ered, and educational institutions must solidly denetheir missions and educational objectives in relationshipto the role that diversity and/or cultural competence

plays in achieving their goals and missions.44

Race can-not be a deciding factor in admission to public educa-tional programs. A holistic review of all applicationsthat incorporates other factors must occur. 41,46

It should be noted that there is not a specic body ofequal opportunity or afrmative action case law thataddresses the admission/selection of racial and ethnicminorities to precollege, outreach, pipeline, or preprofes-sional admissions programs. The US Department of Edu-cation refers to these Bakke-like programs as develop-mental approaches or approaches designed to diversifystudent enrollments by enriching the pipeline of appli-cants equipped to meet entry requirements and achieveacademic success. 47 However, higher-education ofcialsand attorneys have long assumed that Gratz and Grutter apply to many different kinds of race-based admission

policies and programs, such as pipeline and precollege,that consider Bakke-like race and ethnicity factors. 48,49

For example, as Calleros notes

Race-neutral developmental approaches couldencompass any race-neutral measures designedto increase the number and quality of diverseapplicants who make their way into the applica-tion pipeline. These might include governmentalmeasures to improve K-12 education, especiallyin schools or districts that have fallen behind inacademic success, as well as private or govern-mental outreach measures to encourage a broad

spectrum of students to aspire to higher educa-tion and to apply for admission. 49

Calleros further states that

Even if schools more consciously target minority groups with their outreach efforts, race-consciousefforts to enhance diversity in the applicant poollikely will be subject to less searching review thanrace-conscious decisions that result in actualadmission. Moreover, developmental programsare an important supplement to race-consciousadmissions programs as well as a means of fur-thering race-neutral admissions. 49

STATE-SPONSORED ANTIAFFIRMATIVEACTION VOTER INITIATIVES

Since 1996, state-sponsored voter initiatives havesought to ban afrmative action in public education, pub-lic contracting, and public employment in California,

Washington, Michigan, Nebraska, Oklahoma, Missouri,Colorado, and Arizona. 3 Freedom from unlawful racialand sexual discrimination requires measurable progressgoals and monitoring to alleviate historical unfair anddiscriminatory treatment and opportunity gaps experi-enced by women and minorities. 50 Therefore, state-spon-sored voter initiatives seeking to displace afrmative

action programs and pipeline programs for URM stu-dents have been placed in jeopardy by such measures.Prior to 2008, antiafrmative action and/or anti

equal opportunity state voter initiatives had passed in 3states: California (Proposition 209), Washington (Initia-tive 200), and Michigan (Proposal 2). 51 The language ofthese state-sponsored ballot initiatives is basically uni-form in nature and very similar in that they seek toremove what their proponents view as racial, ethnic,national origin, and gender preferences from any pro-grams associated with public education, public employ-ment, or public contracting. 51 Sample language fromthese state-sponsored ballot initiatives typically proposea constitutional amendment or enactment of a statutevirtually banning most forms of afrmative action. Anexample of the language is:

The state shall not discriminate against, or grant preferential treatment to, any individual or groupon the basis of race, sex, color, ethnicity, ornational origin in the operation of public employ-ment, public education, or public contracting. 51

Leading the charge for these state-sponsored ballotinitiatives is Ward Connerly, a businessman and formerregent of the University of California system and head ofthe American Civil Rights Institute (ACRI). 52 The ACRIsponsored November 2008 antiafrmative action ballotinitiatives in Arizona, Oklahoma, Missouri, Colorado,and Nebraska. 3,7,51 Ballot initiatives only successfullyappeared on the Colorado and Nebraska 2008 ballots.The ballot initiative failed in Colorado, thus ending its

political course, but passed in Nebraska. 7 The state with the longest history and most available

published data related to the poststate ballot initiativeimpact is California. Due to the recent passage of theantiafrmative action ballot initiatives in Michigan and

Nebraska, more time is needed in order to discern the possible ramications in these 2 states. Additionally,there are limited published and longitudinal data on theimpact of the antiafrmative action ballot on the health

professional schools for the state of Washington. 53 In California, substantial decreases in the number of

URM students in higher education have been devastat-ing and have required innovative approaches to diversi-fying the student body and maintaining educational

pipeline and enrichment programs. For example, afterthe passage of Prop 209, the University of California Berkeley saw a decline of 65% in minority student


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enrollment, and the University of CaliforniaLos Ange-les experienced a 45% decline in the matriculation ofstudents of color. 7

Additionally, data from the Association of AmericanMedical Colleges on minority admissions and matricu-lation at California medical schools before and afterProp 209 show decreases in the number of URMs who

are California in-state residents enrolling in MD pro-grams. 54 California residents approved Prop 209 in 1996, banning the use of race/ethnicity as factors in admis-sions. Pre-Prop 209 medical school acceptance revealsan acceptance of 233 minority residents to Californiamedical schools in 1993, compared to 157 in 1997, andonly 156 in 2001. 54

Likewise, the percentage of minority medical schoolCalifornia residents studying in the state dropped from23.1% in 1993 to 14.3% in 1997. 54 Consequently, the

percentage of Californias in-state minority residentsstudying at state medical schools has averaged between16.4%, a decrease of 6.7% as of the last decade. 54 Mostnotably, since 1995, more than half of Californiasminority residents accepted to medical schools outsidethe state have chosen to matriculate at non-Californiamedical schools. 54

One year after the passage of Washingtons I-200 in1998, the University of Washington reported a one-thirddrop in minority enrollment with African Americans con-stituting 1.84%; American Indians, 0.91%; and Hispan-ics/Latinos, only 2.9% of the entering class. 55 However, in2004, minority enrollment at the University of Washing-ton rose again to preI-200 levels, with African Ameri-cans making up 3.04% of the freshmen class; AmericanIndians, 1.27%; and Hispanics/Latinos, 4.64%. 55 Duringthe passage of Proposal 2 in 2006, the University of Mich-igan was in the middle of its admissions cycle; therefore,the longitudinal impact of Prop 2 in Michigan is stillunclear. However, after its rst full admissions cycle sinceapproval of the ban, the University of Michigan has onlyseen a 2% drop in minority enrollment. 7

STATE-SPONSORED PERCENTAGE PLANSAlthough voter ballot initiative antiafrmative plans

have not been enacted in these states, both Florida andTexas have implemented controversial percentage plansas part of their efforts to move toward admissions race-neutral. In November 1999, Jeb Bush, Floridas gover-nor, issued Executive Order Number 99-281, eliminat-ing the use of race, national origin, or sex in universityadmissions, employment, and contracting, thereby abol-ishing afrmative action in higher education and otherstate agencies. 51,56 Former Governor Bushs executiveorder was in response to Ward Connerlys attempt inFlorida at a state voter referendum that would end afr-mative action policies, similar to Proposition 209 in Cal-ifornia. 56 The Florida executive order was an extenuationof the One Florida plan or the Talented 20, which guar-

anteed admission of the top 20% of all Florida highschool graduating students to 1 of Floridas 11 publicuniversities 57 (Figure 1).

As part of the Talented 20 plan, need-based nancialaid was increased by 43%, or $20 million, in hopes ofincreasing access for underrepresented students andexpanding diversity in the State University System

(SUS).56

However, Florida high school graduates whoqualied received no guarantee of admission to the SUSinstitution of choice.

Taking into consideration the entire Talented 20applicant pool in 2001, fewer than half enrolled at a SUSinstitution. Specically, 3 years after the implementationof the Talented 20 plan, only 43.1% of eligible Hispanicsand 49.4% of eligible African American studentsenrolled in the system in 2001. 56 Nevertheless, at theUniversity of Florida in 2000, the number of rst-timecollege African Americans did increase from 9.8% in1998 to 12.9%. 56 However, the number of rst-time Afri-can Americans dropped signicantly to 9.4% at the Uni-versity of Florida in 2001, while the proportion of His-

panics rose from 10.9% in 1998 to 12.1 in 2000 and heldsteady in 2003. 56

Data from 2000 demonstrated that of the eligible Tal-ented 20 students applying to SUS institutions, 95.5%were accepted, but in 2001 only 81.9% were admitted. Inlooking at African American Talented 20 applicants in2000, 92.5% were accepted to SUS campuses butaccounted for only 72.1% in 2001.

After the 1996 Fifth Circuit Court of Appeals rulingin Hopwood v Texas ,39 ending the use of race-consciousadmissions, Texas adopted a Top 10 plan. The Top 10

plan automatically admitted the top 10% of graduatingseniors in Texas, regardless of standardized test scores, toany public college or university in the state. This planwas signed into law by then Governor George W. Bush. 58

The Hopwood case involved 4 white students whoalleged that they were not admitted to the University ofTexas law school in violation of the Fourteenth Amend-ments Equal Protection Clause. At the time, the Univer-sity of Texas law school used an admissions process that

placed students into relative categories such as presump-tive admit, discretionary, or presumptive denial. Thesecategories were based on a weighted index score consist-ing of the candidates undergraduate grade point averageand Law School Admission Test (LSAT) score. 39

Under this procedure, Mexican American and Afri-can American applicants could have lower index scoresand be presumptively admitted. The US Fifth CircuitCourt of Appeals ruled the law schools policy violatedthe Equal Protection Clause of the Fourteenth Amend-ment and could not withstand strict scrutiny. 39 Signi-cantly, this lower court, the Fifth Circuit Court ofAppeals, went even further and outlawed all race-con-scious admissions policies, thus, rejecting the USSupreme Courts ruling in Bakke.39,58


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In an attempt to offset Hopwood , the Texas Top 10 plan was implemented. Prior to Hopwood , whites madeup 64% of the total enrollment at the University ofTexasAustin (UT-Austin). Minorities represented 36%of the universitys enrolment; African Americans, 5%;and Hispanics, a little less than 15%. 59 However, in 1997,minority enrollment at UT-Austin reached its lowest

decline since 1994, with African Americans accountingfor only 3% and Hispanics 13%. 59

Although the undergraduate minority enrollment con-tinues to increase at UT-Austin, the percent of AfricanAmerican admits and matriculants still needs muchimprovement. In 2001, the number of African Americansapplying to UT-Austin increased by 24%, but the percentadmitted decreased by 19%. 59 In 2003 Grutter would over-rule Hopwood and, as a result, allow the voluntary use ofrace as a factor in a holistic admissions procedure. 41

It should be noted that in 1960 California adopted a percentage plan for its colleges and universities. 60 The plan, A Master Plan for Higher Education in California,recommended that California State Colleges (currentlyCalifornia State University) select rst-time freshmenfrom the top one-third (33.3%) and the University ofCalifornia from the top one-eighth (12.5%) of all gradu-ating California public high school students. 60

Additionally, as part of the University of California policy on undergraduate admissions, California wouldreafrm the importance of enrolling a culturally, racially,geographically, and socioeconomically diverse student

body in May 1988. 60 Furthermore, during the 1980s,University of California admission guidelines estab-lished a 2-tier process in admissions, allowing campusesto admit the top 40% to 60% of their rst-year freshmenclass solely on academic criteria and the remainder ofthe class based upon a combination of academic andsupplemental criteria (nonacademic) such as commu-nity service or special talents. 60

However, in 1995, and 1 year prior to the passage ofProp 209 in California, the University of CaliforniaBoard of Regents passed Special Regental Action Num-

ber 1 (SP-1) prohibiting the use of race, ethnicity, andgender in admissions 61 (Figure 1). Additionally, SP-1included a percentage plan allegedly aimed at ensuringequal treatment by requiring that not less than 50% andnot more than 75% of any entering class on any campus

be admitted solely on the basis of academic achieve-ment. In this case, academic achievement referred togrades and standardized tests only. 61

After the passage of SP-1 in 1995, the number ofminority applicants applying to University of Californiadeclined. 60 Specically, 22.1% of freshmen applicantswere minority students in 1995; however, these numbersfell to 18.8% in 1998. SP-1 would be overturned by the

passage of Prop 209 in 1996, with the proposition takinglegal effect in 1998. 60

In February of 2009 the University of California

adopted another major change to its undergraduateadmissions policy. 62 The policy is likely to decrease the

percentage of California high school graduates who areguaranteed places on at least 1 of the University of Cali-fornia campuses, from approximately the top 12.5% tothe top 10%. 62 The policy also eliminates the 2 SAT sub-

ject tests. The goal of the University of California is to

move toward a more comprehensive admissions reviewand enlarge its applicant pool. 62 University projection, based on 2007 data, indicates that the new policy may potentially decrease the number of admitted Asian Amer-ican students while increasing the number of whites.

Nevertheless, university ofcials state that the new pol-icy will improve the educational access of minority andstudents from low socioeconomic backgrounds. 62

MAINTAINING THE PIPELINE:STRATEGIES FOR OVERCOMINGCHALLENGES TO AFFIRMATIVE ACTION

As public colleges and universities struggle with liti-gation and legislative initiatives challenging afrmativeaction, it is essential that institutions do not abandontheir missions and goals related to diversifying the stu-dent body and their commitment to developing pipeline

programs that will provide opportunities for URMs in postsecondary education. As indicated in part 1 of thisseries, medical professionals of color will be instrumen-tal in resolving many of the economic and healthcaredisparities which challenge America.

Below are recommendations that K-16 educationalinstitutions, graduate and professional schools, healthcare organizations, and policy makers should considerin developing diversity pipeline programs to increaseURM students in the health professions as they undergoafrmative action scrutiny.

Clearly affirm or reaffirm the institutional missionand objectives to insure that diversity and culturalcompetence are incorporated as core institutionalvalues. 2,35

Ensure there is a strong connection between the benefits of educational diversity as a part of theinstitutional core mission and universitywidestrategic plan objectives. 2

Incorporate strategic enrollment management,which includes recruitment, retention, outreach,marketing, alumni/advancement, as an integral partof any diversity plan and align all strategies andgoals across departments and colleges.If race-conscious or race-based admissions

procedures are utilized, make sure they are part of aholistic plan which considers other factors such astalents, interests, socioeconomic background, andovercoming adversity.Whether a diversity pipeline program is consideredrace neutral has to do with the actual intent or


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motive behind the program and/or admissions policy. Therefore, consider inclusive outreachmarketing and race-neutral recruitment programswhich focus on:

academic qualificationsgrade point average,test scores, evaluations, and rigor of coursework and academic major for candidates to

postsecondary institutions.45

talents, interests, abilitiesgeographical background, socioeconomic status, parentaleducation, first-generation college studentsand/or professional students, culturalcompetence/awareness, commitment toworking in underserved communities orreducing health disparities, high school/community demographics (both rural andurban), participation in study abroad programs,athletics, artistic ability or other talents, andvolunteer and employment experiences inunderserved communities and/or countries. 45

Align definitions of underrepresented minorities with federal government language such as the USDepartment of Health and Human Services indescribing shortages in medicine, biomedical field,nursing, etc.In designing P-16 pipeline programs to increaseURM students in the health professions, link

program and policy goals/mission to federalobjective programs such as those in the federalOffice of Minority Health objective.Review race-based programs regularly and in doingso, consider viable nonrace-based or race-neutralalternatives. 2,34 Make sure that documentationof ongoing reviews is kept on file and consultwith academic affairs, enrollment management,legal counsel, and student services as part of acollaborative process.Ensure that the definition of diversity as it relates to

pipeline programs is inclusive and represents morethan race and ethnicity. 2

In stating objectives and institutional mission, tiethe goal of the educational benefits of diversity tomeasurable strategies that promote access and equalopportunity. 2

Consider adopting precise goals of racial literacy,multicultural literacy, and cultural competence thatcan be measured and monitored in connection withthe educational benefits of diversity. 63

In conducting regular reviews of diversity-related programs and policies, incorporate specificinstitutional evidence and outside sources thatsupport the connection between the universitymission and the educational benefits of a diversestudent body. 35

GUIDELINES FOR ANTIAFFIRMATIVEACTION BALLOT INITIATIVE STATES

In an effort to further diversity, the University of Nebraska Board of Regents Ofce of the General Coun-sel issued guidelines for its campuses to assist them incomplying with the I-424 ballot initiative in January2009. 64 These guidelines serve as a resource in promot-

ing the compelling interest of diversity in higher edu-cation within the legal parameters allowable by state andfederal law. The University of Nebraska guidelines drawupon the experience and guidelines published by theUniversity of California in their efforts to ensure diver-sity and comply with the Prop-209 ballot intiative. 65

Both the University of Nebraska and University ofCalifornia guidelines state that outreach programs tar-geted exclusively for 1 gender, race, or ethnicity are notallowed. However, as part of their comprehensive out-reach programs, universities may sponsor programs that,

because of their content, are of particular interest tomembers of a particular racial groups or 1 gender, ifthey are open to all persons. 64,65 The University of

Nebraska guidelines use a conference on womensissues in higher education that may attract more women,as an example. 64

Furthermore, the University of California Regentsguidelines state:

Outreach . Proposi tion 209 prohibits outreach programs that are targeted exclusively to or avail-able exclusively for one gender or one or more

particular racial group, when such efforts pro-vide informational or other advantages to can-didates who have access to them. Nevertheless,the University may, as part of a comprehensive

program of outreach, target or increase specif icefforts within that program to reach particular

groups where the programs benefits are availablebroadly to other groups, and the special effortsare necessary to reach the targeted groups mem-bers effectively and therefore to level the infor-mational playing field. Such activities mightinclude, for example, workshops or materials ori-ented toward specific communities or groups. Thebenefits of the program must be available on anon-selective basis such that interested individu-als from all racial groups and both genders haveaccess to the same benefits. 65

In terms of admissions criteria, the University of Nebraska guidelines specically state:

Use of Neutral Selection Criteria. The Universi-ty may choose to advance its educational goals,including diversity, by considering gender/race/ ethnicity neutral selection criteria in both admis-

sions and employment decisions. Economic dis-


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advantages, first generation college attenders,neighborhood or community circumstances, low-

performing secondary schools, and the impact ofan applicants experiences are permissible crite-ria, which may promote greater diversity. (Note:the Universitys long tradition of admitting any

Nebraska undergraduate student who meets cam-

pus academic requirements generally eliminatesquestions of preferential admission.) 64

The guidelines also allow campuses to continue tak-ing steps to comply with their federal afrmative action

programs and plans. States with similar antiafrmativeaction laws may wish to further consult the University ofCalifornia and University of Nebraska guidelines interms of assessing neutral selection criteria and review-ing race- and gender-specic admissions, outreach, andhiring programs. 64,65

CONCLUSIONWhile pipeline programs are designed to prepare dis-

advantaged students for health professions education,starting as early as kindergarten, the dismantling of afr-mative action has the potential to end these programsand signicantly reduce the number of URM studentswho enter the pipeline early and are prepared for careersin the health professions. It is essential that the diverse

pipeline programs are preserved through creativeapproaches designed to close opportunity gaps andimprove academic readiness.

To preserve these diversity pipeline programs in lightof continuous afrmative action challenges, there must

be a paradigm shift and a reframing of the issues sur-rounding afrmative action. As Frank Wu, law professorand former dean of the Wayne State University Schoolof Law, observed at a Michigan Journal of Race and

Law symposium in 2008, we must move from debateto dialogue among individuals and communities andask a different question. 63 According to Wu, the questionshould be, What will we do to make good on the idealswe claim to sharewhat will we do as a diverse democ-racy so that all of us are able to write the scripts of ourown lives? 63

As Wu points out, such questions force us to movefrom a debate of the pros and cons of afrmative actionto the historical reasons and the contemporary dispari-ties that make afrmative action still necessary. 63 Theyimplore us as a collective to tackle the difcult and lin-gering inequalities in socioeconomic status, educationalnance reform, postsecondary access, and true admis-sions indicators as predictors of actual degree comple-tion. In doing so, we collaborate in our dialogue andexplore new and novel ways to improve enrichment pro-grams that act as a bridge for URM students in the health

profession.

ACKNOWLEDGMENTSSpecial thanks to Mary Jo Price Esq, Carmen Maurer

Esq, and Lois Colburn for their feedback and commentsrelated to this manuscript. Thanks also to Teresa Hart-man, K. Diane Ullrich, Carly R. Crim, Margaret T. Rob-inson, Dr Mary McNamee, Stacie Ortmeier, Anne Con-stantino, and Jo Giles Galbreath for their assistance with

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Documents

Smith, Part 2, 2009, Pipeline Programs in the Health Professions