The Supreme Court’s review this term of the role of race in higher education should have implications far beyond college admissions. More and more government-funded organizations use racial classifications in their programs. Take, for example, a mentoring program started by Health Affairs, the highly prestigious, peer-reviewed healthcare journal. The journal’s publisher, Project HOPE, receives millions of dollars in federal funds every year from the U.S. Department of Health and Human Services, the USAID, and the Department of State. In 2021, the two groups launched the Health Equity Fellowship for Trainees (HEFT) “to advance racial equity in health policy and health services scholarly publishing.” Racial equality is of course both a moral and a legal imperative. The term “equity,” however, which increasingly displaces “equality” nowadays, is sometimes construed as a license to discriminate. This is one example: acceptance into HEFT is limited to minority applicants.
Do No Harm, a Virginia-based, nationwide membership organization of physicians, healthcare professionals, medical students, patients, and policymakers, filed suit in the U.S. district court for the District of Columbia alleging violations of the Civil Rights Act of 1866 (42 U.S.C. § 1981), Title VI of the Civil Rights Act of 1964, Section 1557 of the Affordable Care Act, and the D.C. Human Rights Law. Its lawsuit asks the court to declare unlawful HEFT’s racially exclusionary criteria, prevent its use, and order HEFT to adopt new eligibility criteria that is race-neutral. The group has at least one member—“Member A”—it claims has “addressed regulatory barriers that disproportionately affect and disadvantage racial minorities,” has “ongoing (and years-long) research projects relating to race-equity issues” and “wishes to pursue research and publish in a journal on topics related to race equity.” Member A meets all the HEFT criteria except for race.
On December 5, Health Affairs and Project HOPE filed a motion to dismiss Do No Harm’s amended complaint, arguing that the plaintiff lacks standing. Specifically, they argue that the “anonymous member on whose behalf Plaintiff sues, ‘Member A,’ has never applied for HEFT, has never been prevented from applying for HEFT, has never been rejected from HEFT, has never been deemed ineligible for the program, has never suffered an injury attributable to Defendants, and is not under threat of suffering any such injury.”
None of these claims defeats the plaintiff’s associational standing. In its opposition to the motion to dismiss, filed last week, Do No Harm explained that Member A is ready and able to apply, and prior case law does not require such an application to be made as a prerequisite to standing. Member A has the “‘intent to apply’ once the discriminatory policy ends,” and the defendants had prevented Member A from competing on an equal footing. Indeed, Section 1981’s text explicitly protects the right to “the same opportunity to enter into contracts” regardless of race. Of course, none of the challenges to standing justify HEFT’s racially discriminatory eligibility requirements.
In their motion to dismiss, Health Affairs and Project HOPE clumsily attempt to gaslight the court by arguing that HEFT’s online posting, which is no longer available, only recommended that applicants “should identify as members of underrepresented racial groups. However, applicants are not required to identify their race during the application process and may select ‘prefer not to respond’ on the application.” If that seems too much of a stretch, these defendants also argue that a racially exclusive program really is just benign discrimination. “Opportunity is not a zero-sum game. An effort to increase underrepresented voices in health services scholarly publishing is not an effort to suppress any other voices.”
So they are not suppressing other voices, only shutting the door of this fellowship to certain races. This reasoning is difficult to take seriously and should not prevail in court.