Myopic SCOTUS ruling on race-neutrality threatens our collective future

Last week, the Supreme Court ruled that it would no longer be permissible for colleges and universities to consider race as a criterion for admission.

Although the decision focuses on education, its myopic and twisted views on race and racism also pose major risks of worsening inequities across all societal sectors, including health.  

The ruling strikes down affirmative action programs at Harvard University and the University of North Carolina, which until the 1950s did not admit Black students. Both universities consider applicants’ race among many characteristics to build a diverse class. In principle, the justices’ embrace of race-neutrality is desirable. But it is one thing to set aside race in a society with genuinely equal opportunity, and quite another in a society with stark disparities in opportunities and outcomes, fueled by centuries of systemic racism that persist to the present day.  

The ruling makes a travesty of the lived experiences of people of color in America — a lived experience that is not subjective, but that shows up in the heartbreaking chasms between Black and white in wealth, health, education, opportunity and political power. 

Civil rights legislation was enacted in the 1960s to acknowledge and address rampant and deeply rooted discrimination and racism, particularly (but not exclusively) affecting Black people. It was a response to a society in crisis, in which the oppressed demanded equality, and a critical mass of the dominant group felt they could no longer be complicit in structures that conveyed benefits to them at the continued expense of people who had been pushed to the margins of society for 350 years.

Tragically, the court’s myopic approach could make all those disparities worse.  

Consider the legacy of redlining. Starting in the 1930s, the federal government created color-coded maps that marked neighborhoods with large populations of Black residents in red, meaning they did not qualify for federally backed mortgages. It was not until the Fair Housing Act of 1968 that this corrosive practice was outlawed, and yet discrimination in lending continues to this day. 

Generations after those maps were first drawn, redlining still has enormous impacts on the lives of people of color.  

Most obviously, Black families segregated into less-desirable neighborhoods have not been able to rely on rising property values to accumulate wealth, leading to huge disparities in financial status. But the impact is far deeper. The lower property values in predominantly Black neighborhoods lead to persistent underfunding of K-12 schools. This, in turn, perpetuates the centuries-old legacy of unequal access to quality education.  

Likewise, study after study has shown that redlined neighborhoods are more polluted and have fewer amenities than predominantly white neighborhoods — and that as a result, residents are far more likely to face serious health challenges ranging from asthma to premature birth to heart disease to early mortality. 

All this is the legacy of just one discriminatory government policy to restrict mortgage lending on the basis of race. Over the decades, of course, there have been many such policies. That is what we mean by structural racism — a codified program of segregation and subjugation that suppressed and continues to suppress, minority achievement. 

And that explains why colleges that want to build a diverse class have found it important to take affirmative action to identify meritorious students from disadvantaged groups.  

We all would like to live in a future society where everyone has equal opportunity to live up to their full potential — a truly race-neutral society. But we are not there yet. To get there, we must adopt laws, policies and practices that explicitly address and redress the harms of systemic racism in education, health care and beyond.  

The court’s ruling could pose major challenges to achieving social justice and could actively worsen health disparities in the process.

Here’s one way that could play out: A recent study found that Black people living in counties with more Black primary care physicians have lower mortality rates. It follows that increasing the number of Black physicians could help address the tragic health disparities in the U.S. But medical schools that might want to consider race as one factor in their admissions will now be barred from doing so.

Without an affirmative push to admit more students of color, it’s hard to see how we will ever significantly raise the number of Black physicians, who currently account for only about only 5 percent of the medical workforce. And that failure will have an ongoing and devastating impact on Black health.  

The Supreme Court’s ruling gives the nation virtually no chance to end the harmful legacy of the notorious Flexner Report of 1910, which forced the closure of all but two Black medical schools and set us on this path of inadequate numbers of Black physicians and inadequately protected Black health. 

A wide range of policies by the National Institutes of Health and the Centers for Disease Control and Prevention, along with other policies and programs aiming to address racial disparities in health may now also be subject to challenge.   

Likewise, during the height of the COVID-19 pandemic, most states sought to recognize in their vaccine allocation policies that most minority populations experienced a disproportionate burden in infections and deaths. Some prioritized racial groups, with meaningful public support. The majority used disadvantage indices, metrics that recognize the link of health, place and race, and can serve as helpful proxies for addressing racism.

Such approaches have the support of the majority of the public, yet they could also come under fire, whether in future emergencies or routine healthcare.  

One way of testing the safety of water is to use mussels: When water is too polluted, they die. A similar test could involve the recognition that health disparities disproportionately afflict the bodies and minds of people of color. As long as disparities exist, our nation’s fundamental structures are polluted by racism. We will not be ready for the “race-neutral” policies the court holds dear until we truly have equal opportunities and equal outcomes. 

In education, health care and public health, the Supreme Court’s ruling is set to have devastating effects. We must create programs and policies that actively address structural racism and ameliorate cavernous inequities. A conservative supermajority on the court has made all that much harder, but we cannot stop fighting for social justice. The alternative is to watch our society slip further into shameful inequity, which is unconscionable.

Lawrence O. Gostin is a university professor of law at Georgetown University and director of the O’Neill Institute for National and Global Health Law and a World Health Organization Collaborating Center. Michelle A. Williams is the Joan L. and Julius H. Jacobson Professor of Epidemiology and Public Health and former dean of the Harvard T.H. Chan School of Public Health. Harald Schmidt is an assistant professor of medical ethics and health policy at the University of Pennsylvania.