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AHLA's Speaking of Health Law
Top Ten 2024: The Diversity Program Landscape After Students for Fair Admissions v. Harvard/UNC
Based on AHLA’s annual Health Law Connections article, this special series brings together thought leaders from across the health law field to discuss the top ten issues of 2024. In the fifth episode, Deborah Biggs, Principal, PYA, speaks with Tiffany Buckley-Norwood, Associate Counsel, Trinity Health Corporation, about the impact of the Supreme Court’s decision in Students for Fair Admissions v. Harvard/UNC on diversity programs across the country. They discuss the impacts at the federal and state levels, how diversity programs can navigate this new environment, and best practices for creating a pipeline of diversity in health care. From AHLA’s Labor and Employment Practice Group. Sponsored by PYA.
Watch the conversation here.
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A HLA is pleased to present this special series highlighting the top 10 health law issues of 2024, where we bring together thought leaders from across the health law field to discuss the major trends and developments of the year. Support for A HLA in this series is provided by PYA, which helps clients find value in the complex challenges related to mergers and acquisitions, clinical integrations, regulatory compliance, business valuations , and fair market value assessments, and tax and assurance. For more information, visit PYA pc.com.
Speaker 2:Hi, I'm Deborah Biggs, and I'm with PYA at Principal and the director of the Academic Medicine Practice. And I'm here today with Tiffany Buckley Norwood. We're gonna talk about the recent decision , uh, related to the students for fair admissions versus Harvard and UNC and any impact to diversity programs and thinking about that landscape as we move forward. Hi, Tiffany, I'll let you introduce yourself as well.
Speaker 3:Hello. Hi, Deborah . Thanks for having me, and thank you HLA for having me. So I am Tiffany Buckley Norwood. I'm Associate Counsel for Trinity Health Corporation. Um, I'm also a freelance corporate trainer.
Speaker 2:Wonderful. Well, why don't you give us an overview of the article so we can kind of start from that for our listeners today.
Speaker 3:Sure. So the article , um, really talks about, as you mentioned , um, the US Supreme Court's decisions in, well decision in Supreme students v fair admissions, the Harvard and Student for Fair Admissions, VUNC . They were two cases that were merged into one two hundred and thirty seven page opinion. Um, in the opinion, the court held that race-based admissions programs at the institutions violated Title vi , um, of the Civil Rights Act, and also the Equal Protection Clause of the 14th Amendment. And so coming out of that decision, there was a lot of discussion around what does this mean for diversity programs, right? Uh , so this article that I wrote , um, walks through a brief overview of that decision and then talks about diversity programs. One of the key takeaways I would say is that diversity programs can still exist, but keeping in mind the decision we need to be focused on the parameters of those, those diversity programs.
Speaker 2:So I , I found it really interesting the segue from the kind of admissions decision to employment. Can you tell me kind of how we get there?
Speaker 3:Sure. And I should , uh, I didn't mention this, but let me , um, back up just a little bit to mention that. In the Supreme Court decision, as I said, the, the court held that those, the race-based admissions programs at both Harvard and UNC were in violation of the law. Um, specifically, just to give a little bit of background, Harvard, you know, as many people listening would know as a private institution, UNC as a public institution, they were both using race as a decisional factor in each step of their admissions process. And the Supreme Court in finding that they were unlawful , um, specifically said that those programs were unlawful because they lacked sufficiently focused and measurable objectives warranting the use of race, unavoidably employed race in a negative manner involving racial stereotyping and lacked meaningful endpoints . And we could talk a little bit about what each of those things means, but this decision is , uh, comes in a long line of Supreme Court cases. If you look back in history , um, let's start, for example, with the Bki case. That was a Supreme Court decision. Uh, that was also an admissions case. That was in 1978 aft and in Bki , um, the Supreme Court held that quota systems were unconstitutional, but race could be a plus factor . Shortly after that bki decision, we had an employment decision in 1979. That was a Weber decision , uh, where specifically the Supreme Court held that you could have voluntary affirmative action programs that took race in , um, into account , um, if it satisfied a three part test. So you had an admissions case with B then you had , uh, employment case with Weber. And then if you went down further in history in 2003, we had the grads and Gruder Va Bollinger cases, those University of Michigan cases. Those were admissions cases , um, where it was a question of how we utilize or if we could utilize , um, race and admissions decisions. And we were looking at , uh, individually individualized holistic approach. That's really what the Supreme Court was encouraging at that point in time. Um, and so it was a revisit of Bakke When we got to that University of Michigan decision in 2003, shortly after that gr Gruder Supreme Court opinion, we had Petit v City of Chicago, which was an employment case. So if you notice there's a pattern here, admissions case, an employment case, admissions case, then employment case, and the , uh, Petit v City of Chicago case applied Grutter in the employment context. So now we've had this , um, new Supreme Court decision in 2023, which is another admissions case. And if history is any indicator, we'll likely have employ an employment case that's kind of working its way through the pipeline. And we've already heard some rumors of that occurring.
Speaker 2:So this is on the federal level, and then we also have state cases as well. Um, what's your perspective on that? I mean, in terms of the implications to what states may do, we've seen some of that recently, right? With some of the decisions that we're getting across various states in the IRS, you know, I , I mean, I know that this gets really kind of complicated here, but gimme your thoughts on that .
Speaker 3:Yeah. So with the, in addition to what we're seeing happening, working its way, as you mentioned through the federal context on the state side, we're seeing a lot of state action. Um, you know, when the Supreme Court decision first came out, there were, I'll say, competing letters from Attorney Generals of the different states interpreting that decision. Uh , so that's one aspect that we've seen. Separate from that, we have seen the states apply the decision in other contexts, such as , um, boards of directors, mm-hmm, <affirmative> , um, you know, analyzing how this might be applicable to the board of director context, or we've seen state legislate, for example, Florida, even before this decision, the Supreme Court decision Florida was already , um, enacting legisl that prohibits certain types of DEI training. So we will see the states continue to be active in this realm , um, separate from what the Supreme Court does. While they'll rely on the Supreme Court decision, in some ways, they are able to move even faster in issuing or making law, both case law and statutory law around this area.
Speaker 2:So as we think about this from the federal perspective, and then the impact to the diversity and , uh, equity programs, kind of pulling back out of the state for a second, what, what would you say to folks that are thinking about their diversity and , and , uh, equity programs and what they should do in terms of thinking about what may come next?
Speaker 3:<laugh> , aside from reading the article, <laugh> right . <laugh> , um, so in the , as you'll see in the article, I , I lay out some analysis of that Supreme Court decision and what the Supreme Court was really saying in terms of words of caution, right? So for example, if we think about , um, uh, using race as context, and we're seeing this both in admissions and on the employment side. Um, and, and let me back up before I address that racist context. So one of the big differences on the employment side is that , um, with the Title VII of the Civil Rights Act, there was already an exp explicit prohibition on using race as a , a factor in hiring decisions. Title VII prohibits the use of race as a factor. So in the employment context, to a certain extent, we've always had this , um, use of racist context, right? We might use it to set aspirational goals. We might use it to evaluate and measure the effectiveness of some of the diversity programs, but hiring decisions weren't being made based on race. Mm-hmm, <affirmative> , um, where that is, where education was a little different. In the higher education arena, race was being used explicitly as a factor, as I mentioned, with both the Harvard and UNC programs. They were explicitly using race as a factor at each step of their admissions program. So there is , there are some differences between the education and the employment context from that perspective. Um , but we will see, particularly on the education side, more focused on race as a context. And we've already seen that to a certain extent with, for example, the common app essay props for 20 23, 20 24. They have questions like some students have a background identity, interest or talent that is so meaningful, they believe their application would be incomplete without it. If this sounds like you, then please share your story. Or if you look at the university , um, uh, the universities in California, you know, they've had California Pro Proposition nine since 1996, and they also had those similar questions where race is used as context rather than as a factor. So for example , um, and if you're really interested, you can listen to , uh, a webinar that was done by HLA August 31st of last year, I believe , uh, which had individuals from the University of California speakers. But one of the questions that they ask on their admissions application is , um, the admissions committee is interested in gaining more insight into you as a person. Please describe a significant personal challenge you have faced one which you feel has helped shape you as a person. Examples may include moral or ethical dilemmas, a situation of personal adversity or a hurdle in your life that you worked hard to overcome. Please include how you got through the experience and what you learned about yourself as a result. So we're really going to see that focus on race or gender. Um , we we're talking about race because that's what the Supreme Court decision was about, but this can be extended to any of those categories that are protected under the law. So race, gender, national origin, religion , um, you know, we're really going to see that focus on those categories as context for who you are as an individual. And that comes directly from the , uh, Supreme Court's decision itself, because the Supreme Court was very explicit in saying that , um, diversity programs can still look at how race has impacted the individual. The court said, a benefit to a student who overcame racial discrimination, for example, must be tied to that student's courage or determination or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student's unique ability to contribute to the university. So in both of those examples, it's racist context. How has that student's race affected them as an individual, their lived in experience as an individual or their perspective as an individual. So we're really going to see a focus on racist context or protected category as context. The other place, if I were to look into crystal ball , um, using employment as an example, because again, we couldn't use race as a factor on the employment side anyway , um, for hiring and other , um, types of employment actions, we're going to see more outreach, recruitment, particularly in the pipeline , um, space , um, and retention. We're going to see more of those efforts to make sure that people feel like they belong in the environment. So there will be more of a focus on inclusion and on equity and belonging , uh, to make sure that we're still having diverse organizations, whether it be higher education, whether it be in the employment context or whether it be in the boardroom. So
Speaker 2:You've brought up the pipeline context. So starting probably as we mentioned, the common app for undergraduate admissions. And so starting back further, and in previously when you were talking about the criteria that you have to adhere to, then it would have to be , um, narrowly tailored essentially to what your , your issues are or what you're trying to address your business issues. Can you speak to that a little bit? Um, I know we're talking about context, but the other component is it's gotta be measurable, right? Mm-Hmm.
Speaker 3:<affirmative> , yes. And so when you are creating a diversity program, first you need to think about your purpose. If we think about diversity programs, a little bit like a project plan, right? And I'm sure a number of the listeners have put together project plans before, right? So the first thing we do is we figure out what's our goal? What's the purpose of the diversity program? What are we trying to achieve? And then after we dis determine that purpose, then we come up with those specific, measurable, aspirational and time bound goals, those smart goals to achieve that purpose as part of our project plan. So what is going to get us to what we're trying or the goal we're trying to achieve? What is going to further the purpose that we're trying to achieve? Um, and sometimes when it's , particularly if you're someone who reads a lot of the literature around diversity, equity, and inclusion, it talks about how important those pipeline efforts are. Um, we can't just look at the medical schools either when it comes to, or higher education when it comes to pipeline. We need to go back even further. Mm-Hmm . <affirmative> , because even when it comes to the medical schools, there is de demonstrated underrepresentation , um, are from a racial ethnic perspective, less so with gender. Um, but there is demonstrated underrepresentation when it co in the healthcare field around higher education. So we know need to go back even further. We need to be feeding into higher <laugh> at higher education. We need to start with the elementary schools. We need to start with the middle schools. And I know there are a lot of programs that do that. Um, uh, but that's where some of our focus needs to be, even more so now than before, given that some of the higher education institutions are still sorting their way through what the Supreme Court decision means for the diversity programs they have.
Speaker 2:Right. And then that would be the same for your workforce too, thinking about that piece of it. I mean, and of course the education goes along with it, but there are a lot of other positions that are not, as you mentioned, that are not , uh, physician driven that need to need that diversity element , uh, in them and it , um, that are shortages as well.
Speaker 3:Yes.
Speaker 2:Well, thank you so much for your time today. I'm , are there any other , uh, comments you'd like to make for our listeners?
Speaker 3:One of the things I I, I've kind of talked around it a little bit, but I do wanna touch on board diversity just a little bit , um, and where we might see some other areas where we need to stay tuned. Um, so while we haven't seen any activity in this area at the Supreme Court level on board diversity, we have seen some at the state level. Um , in fact, there was a case <laugh> , ironically, regarding lawyers <laugh> and the State Bar Associa or the State Bar Association. Um, they had , um, uh, reserved seats for individuals that were within certain racial and ethnic categories. Uh, that quota thinking can be , um, dangerous sometimes when it comes to boards. But a big distinction, and I know inside of the Supreme Court deci decision , um, there was some discussion around , um, the universities trying to match their demographics to the communities they serve. And the Supreme Court took issue with that in the board context, that analysis may not be the same, especially if you're talking about a nonprofit board. One of the , um, elements that the IRS looks at when analyzing a nonprofit board is, is it comprised of individuals from the community it serves, right? That language is coming right from the IRS guidelines. So utilizing demographics from the surrounding communities in the board context for a nonprofit board actually has some justification, whereas the Supreme Court took issue with it when it came to higher education. So this is still an area that's being developed, and we need to keep an eye on it. Um, we're also seeing some activity at the state level and federal level around federal funding, certain public programs, public assistance programs. So keep an eye out. This area is going to continue to develop. Um, I know PYA actually has, you didn't ask me to do this, but I'm gonna put a plug in anyway, because I really liked an article that you have on the PYA website that talks about the history of diversity and talks about , um, the flexor study , uh, or excuse me, the Yes, the FLEXNER study and some other things that you've seen through PYA , uh, from A DEI context. So I would say utilize the resources within A HLA and supporters and members of A HLA , such as PYA to keep on top of what's happening in this area. And lastly, I'll put in one, one last plug. Um, I'm also a vice chair for our of education for a HL a's Labor and Employment Group, and we have , um, a webinar coming up as well on this topic. So there are a lot of resources available to A HLA members and to the public on these DEI issues as this continues to evolve.
Speaker 2:Well, that's very helpful, Tiffany. I mean, this is just such a complex area, and it has wide , uh, you know, sweeping impact to , um, all of these pipeline programs to employment to , uh, health outcomes , because we know that diversity in healthcare impacts health equity and health disparities. And so , uh, it's really helpful. I think your article frames this as a way that we can get ahead of thinking about what's likely to come and how to , uh, plan for that. And you mentioned California, might you just close for a moment on the , on what California's done since they're a little bit ahead of some of the other states and some of the impact that we've seen. I know you mentioned the , uh, HLA , uh, program. That was the end of August, but for those that haven't seen it and that are to our listeners, maybe you could talk just for a minute or so closing on that.
Speaker 3:Right. So , um, California had Proposition 2 0 9, which was passed in 1996, and it prohibits the state from discriminating against or granting any preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, national origin in public employment, public education, and public contracting. And like I said, this has been around since 1996, Michigan, which is where I'm located. They passed a similar , um, law and the year just escaped me, but much more recently than 1996, I'll tell you that. So in California, and you see this with the University of California, they've done a lot of work to really , um, think about race as context and to really think about experiences and attributes , um, when doing selection and when doing their interviews. And I clearly, I don't work for the University of California, so I I am having a little bit of difficulty speaking on their behalf. But as somebody who attended that webinar, I was really impressed with a lot of the work that they've done to , um, get back to where they were before Prop 2 0 9. So one of the slides that they showed in that webinar , um, they were at 7.5% underrepresented in medicine in 2000, and it took 20 years , but they're at 52% now in 20. As of 2020, they were at 52%. So they did a lot of work around belonging and around thinking about context, and I just, I just remembered Michigan's proposal to , which was passed, was passed in 2006, so much more recently than that California Prop 2 0 9 in , in 1996. So if you're looking to see what some of the universities have done , um, I would say the University of California is a great , um, model , uh, for getting some ideas on what to do. Also, after the Supreme Court decision came out, the Department of Justice and Department of Education put out some guidance as well on what could and could not be done in light of this , uh, Supreme Court decision .
Speaker 2:Well, that's wonderful. Thank you for this. I think it's great information for our listeners and we thank you all our listeners in A HLA and Tiffany for your time today, and I hope you enjoyed this podcast.
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