ASN President's Update: Affirming Action, Demanding Fairness, and Maintaining Unity

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Last month, I wrote about how divided the United States has become, and the editorial was immediately prescient (1). Responses to the Supreme Court of the United States' (SCOTUS') decision in the Students for Fair Admissions, Inc. (SFFA) v. President and Fellows of Harvard College highlight this polarization. In a six to three decision, the SCOTUS ruled that race should not be used as a consideration in college admissions, essentially eliminating 62 years of affirmative action (2).

In 1961, U.S. President John F. Kennedy signed Executive Order 10925, requiring government contractors to “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin” (3). The executive order also established a commission “to consider and recommend additional affirmative steps which should be taken by executive departments and agencies to realize more fully the national policy of nondiscrimination within the executive branch of the Government.”

The SCOTUS' decision has major implications for individuals applying to U.S. universities, colleges, and medical schools, as well as for health care in the United States. Diversity in nephrology is critical because it strengthens the specialty and results in better care for the more than 37 million Americans with kidney diseases, a disproportionate number of whom are Black or African American. As history has proven, diversity will not happen without our being intentional about achieving it.

The American Society of Nephrology (ASN) issued a statement disagreeing with the SCOTUS' decision on Thursday, June 29, 2023 (4). In its statement, ASN asserted:

• Diverse organizations “are more innovative, more empathetic, more inclusive, and perform at a higher level,” as well as “experience less turnover, are considered more satisfying workplaces, are financially more profitable, and impact the business sector more positively.”

• “[R]ace concordance between patients and their physicians results in higher levels of communication, trust, and adherence to medical advice.”

• “Unfortunately, [long-standing] inequities within the educational system in the United States disproportionately disadvantage minoritized groups, especially Black Americans.”

• The decision “will hamper long-standing efforts to diversify the health care workforce, including physicians, in the United States”; “make it even more difficult for applicants from minoritized and historically disadvantaged racial groups to enter undergraduate programs from which candidates are accepted into US medical schools”; and “have wide ranging effects across undergraduate and graduate medical education as well as science, medicine, and health care.”

SFFA is an outgrowth of the Project on Fair Representation, established in 2005 as “a not-for-profit legal defense foundation that is designed to support litigation that challenges racial and ethnic classifications and preferences in state and federal courts” (5). Established in 2014, SFFA “is a nonprofit membership group of more than 20,000 students, parents, and others who believe that racial classifications and preferences in college admissions are unfair, unnecessary, and unconstitutional” (6). SFFA supports and participates in “litigation that will restore the original principles of our nation's civil rights movement: A student's race and ethnicity should not be factors that either harm or help that student to gain admission to a competitive university.” Both organizations are led by Edward Blum, a legal strategist who is also a visiting fellow at the American Enterprise Institute, a think tank based in Washington, D.C.

In 2014, SFFA filed a petition against Harvard College, claiming that the university discriminates against Asian Americans by holding them to higher admissions standards than any other racial or ethnic group, including White individuals. While this petition may have appeared to be a case advocating for more fair admissions standards for Asian Americans, Blum actually built a case against affirmative action. By addressing the issue of discrimination of Asian Americans and removing race considerations to “level the playing field,” he pitted Asian Americans against Black Americans, one minoritized group against another.

Colleges and universities consider other applicant characteristics, such as athletic abilities and musical talent, students attending high schools with a track record of high acceptance rates at certain colleges or universities, geography, and family members having attended the school (legacy). Forty-three percent of White undergraduates admitted to Harvard are legacy, athletes, or related to donors or staff compared with less than 16% of African American, Hispanic and Latinx, and Asian American undergraduates (7). A few days after the SCOTUS decision, three groups in Boston, MA, requested that the U.S. Department of Education review “Harvard's special admissions treatment for students whose parents are alumni, or whose relatives donated money,” claiming that the practice discriminates against Black, Hispanic and Latinx, and Asian applicants (8).

As most applicants who receive admissions priority from being legacy, from a specific geographical area, from a specific high school, or for being musically talented are White Americans (7), removing race will not level the playing field. In athletics, the “travel sports culture” in the United States is creating a pipeline for wealthy Americans (most of whom are White) to help their children pursue scholarships (or admissions or both) in “non-revenue sports” at the most competitive colleges (9). This is an effective strategy, as acceptance rates can be very high. At Harvard, for example, nearly 90% of recruited athletes are ultimately admitted (7).

Even if racism is less overt than it once was, it continues 160 years after the Emancipation Proclamation. I suspect that if we each think about our lives, we can recall personal experiences of how society treats people differently along racial lines or how admissions decisions are fraught. I would like to share a few personal experiences that provided me with insights into some of the issues raised by SFFA v. Harvard. These perspectives left me thinking that there is no equity without race as an admissions consideration.

When my brother and his wife worked in northern Kenya, they met and provided medical care for a sister and brother who were Ethiopian refugees. Before my brother and sister-in-law had biological children, they reared the two orphaned siblings as international foster children in the United States. While the children were visiting New York City, my parents took them to see a Broadway play. Waiting outside the theater to see their first show, the children were standing next to my mother. A police officer approached the 14-year-old boy and started questioning him as to why he was standing there. The officer did not ask other people waiting outside the theater, only the refugee from Ethiopia.

By contrast, I did not face biases based on the color of my skin. Growing up in Brooklyn, I attended public school until after the New York City teacher's strike in 1968, which prompted my parents to reassess educational opportunities for their children. In 1969, I started attending a private school. The small class size enabled more personalized attention. Our headmaster met with college admissions officers and advocated for us. When I applied to college, I may not have been a legacy candidate, an athlete, or a musician, but I had some advantage over students with similar test scores who did not attend private schools with faculty who advocated for their students.

Even though Columbia University is fewer than 20 miles from my childhood home in Brooklyn, I could not apply for admission because it did not allow women as students until 1983 (10). Had I been a bit older, even more colleges would have been unavailable to me. Luckily, I had plenty of options, a headmaster who was advocating for me, and a family who could, along with a few loans, support the cost of my higher education.

When I applied to medical school, every school was available to me. Jefferson Medical College in Philadelphia was the last U.S. medical school to admit women, in 1961, the same year that President Kennedy advocated for affirmative action (11). Most medical schools did not increase their class sizes when women were admitted. As such, men who would have previously been admitted to these schools were not admitted because there were not sufficient spots for them with the admission of women. A limited resource, which college or medical school spots are, creates a zero-sum game, and those individuals who benefit are going to vary over time, like my being accepted to medical school as a woman.

I understand that other perspectives on this issue exist. Asian Americans are understandably concerned that they may be held to a higher standard for college admissions. I cannot disagree with this perspective, their feelings about it, or that Asian Americans have faced discrimination in the United States. They have.

Too often, people are lumped together, although they are distinct from different regions and with different cultures. The diversity among Asian Americans is extensive: Chinese Americans, Filipino Americans, Indian Americans, Japanese Americans, Korean Americans, and Vietnamese Americans, to name a few. It is not surprising, therefore, that a wide range of opinions about affirmative action exist, as do perspectives about whether race should be considered in college admissions across Asian demographic subgroups (12).

My sister-in-law is of Chinese descent, and thus my nieces and nephew are one-half Asian. Over the years, my brother mentioned that he was glad they carried his last name, as he thought it would help them not be discriminated against based on their names. Also disagreeing with the SCOTUS decision, my brother supports the inclusion of race in admissions considerations because he believes that diversity in higher education is a worthwhile goal. “Highly competitive colleges and universities are gateways to leadership positions in society, and we need to make a commitment to diversity in education to ensure that there is diversity in leadership,” he told me. “Furthermore, all students benefit from exposure to people with different perspectives [who] have been shaped by a variety of life experiences.”

My brother also believes that Asian American applicants to college should not be held to a higher standard than applicants who are White Americans. That is the problem, and it extends beyond the correlation of acceptance rates with standardized test scores and high school grade-point averages. Why did Harvard's admission committee members consistently rate Asian American applicants lower than other applicants on subjective personal qualities, such as “likeability,” “courage,” and “kindness” (13)? This reality speaks to a more troubling issue of implicit bias that the SCOTUS decision does not address.

The SCOTUS decision also fails to account for the fact that the United States is increasingly multiracial. Between 2010 and 2020, the number of Americans who identified as “multiracial” increased by 276%, making it the fastest growing racial category (14).

Black Americans also hold a wide spectrum of opinions regarding affirmative action. For example, some have voiced concerns that these efforts have unintended consequences of lower expectations and standards. Speaking to this point, John H. McWhorter, PhD, a linguistics scholar at Columbia University, wrote, “an unintended byproduct of what we could call academia's racial preference culture: that it is somehow ungracious to expect as much of Black students—and future teachers—as we do of others. That kind of assumption has been institutionalized within academic culture for a long time. It is, in my view, improper. It may have been a necessary compromise for a time, but it was never truly proper in terms of justice, stability or general social acceptance” (15).

As nephrologists, we are no strangers to the difficult and unintended consequences of dealing with limited and scarce resources. In the 1960s, “death panels” decided who would receive lifesaving dialysis and who would not. Although dialysis is no longer as scarce a resource in the United States, nearly 90,000 patients are now on the kidney transplant waitlist. Black patients do not fare as well as non-Black patients in this system. They are less likely to receive a preemptive transplant referral, complete the transplant evaluation, or have a living donor. They are also more likely to receive lower-quality kidneys.

Because the inclusion of race in the estimated glomerular filtration rate (eGFR) previously delayed the eligibility of Black Americans to being on the transplant waitlist, the removal of race from the eGFR means they will become eligible for kidney transplantation sooner. To address this historical inequity, transplant programs are retroactively providing the additional time lost, precipitating some Black Americans to move up the list. There are not sufficient organs for everyone who needs one, however, so providing equity to Black patients will likely decrease offers for others on the list.

To respond to this challenge, the transplant community, including ASN, is working on several fronts to increase the number of available kidneys for transplant and taking steps to increase equity in access to transplantation. These measures help, but they will not fully undo the shortage. That can only be achieved when there are sufficient organs. For that to happen, we will likely have to wait until xenografts are a reality.

As history has proven, diversity will not happen without our being intentional about achieving it.

In his closing statement of the SCOTUS decision, Chief Justice John G. Roberts, Jr., wrote, “At the same time, nothing prohibits universities from considering an applicant's discussion of how race affected the applicant's life, so long as that discussion is concretely tied to a quality of character or unique ability that the applicant can contribute to the university” (2). For the past decade, the University of California, Davis, School of Medicine has “become one of the most diverse medical schools in the country” by following the approach suggested by Chief Justice Roberts (16). Using a “socioeconomic disadvantage scale, or S.E.D.” to rate “every applicant from zero to 99, taking into account their life circumstances, such as family income and parental education,” UC Davis makes decisions on admissions based on S.E.D. “combined with the usual portfolio of grades, test scores, recommendations, essays and interviews.” Other medical schools are adopting this sort of approach, which addresses many of the concerns about the SCOTUS decision that I have raised here.

Finally, it is striking that the SCOTUS justices who concurred with the decision included a footnote that “[n]o military academy is a party to these cases, however, and none of the courts below addressed the propriety of race-based admissions systems in that context” (2). Why is affirmative action appropriate for the military but not for the rest of society? As Associate Justice Ketanji Brown Jackson wrote: “The Court has come to rest on the bottom-line conclusion that racial diversity in higher education is only worth potentially preserving insofar as it might be needed to prepare Black Americans and other underrepresented minorities for success in the bunker, not the boardroom” (2, 17).