A rising tide of pushback against diversity, equity, and inclusion (DEI) initiatives by state policymakers and two soon-to-be-decided rulings regarding affirmative action in undergraduate admissions could threaten health equity by reducing diversity initiatives in higher education.

Twenty years ago, the landmark report Unequal Treatment: Confronting Racial and Ethnic Disparities in Healthcare documented health care disparities across racial and ethnic groups and nearly all medical specialties. The researchers found that these systemic inequities result in significantly higher death rates for patients of color. And a 2022 Urban report found that a diverse, representative health care workforce is key to improving health care access, patient satisfaction, and health outcomes, particularly for patients of color.

Those researchers concluded that “although the diversification of the health care workforce alone will not eliminate health inequities, it is a vital piece of the puzzle.” Promoting DEI in the health care workforce is also a matter of justice for communities of color who’ve been persistently excluded or underrepresented in health professions, especially in an increasingly diverse nation. According to the amicus brief filed by the Association of American Medical Colleges last year, if the US Supreme Court disallows holistically accounting for race and ethnicity in admissions, it would “result in a  compounding loss of diversity and threaten patients’ health” (PDF).

At the recent Unequal Treatment at 20: Accelerating Progress toward Health Care Equity symposium hosted by Urban, experts came together to discuss the political and legal forces impeding health equity. They described how the health equity movement, which surged after the release of Unequal Treatment, faces increased pushback against promoting the diversity and cultural humility urgently needed in health profession education. The scholars also shared legal strategies to achieve equity in health care access, treatment, and outcomes and to inform research efforts designed to advance equity in health care delivery amid hostility.

Center the social policy evidence to change the political and legal landscape

Tom Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund, said health equity advocates can use data to support narratives that counter political opposition to diversity initiatives. In the landmark case Regents of the University of California v. Bakke, the Supreme Court invalidated the use of racial quotas but declared that affirmative action policies holistically accounting for race can be constitutional based on the compelling interest of promoting diversity in medical education. This process showed that by building an evidence base and centering that work, health equity advocates can lift narratives that directly link the race or ethnicity of health care providers to patient outcomes and provide a compelling interest for protection.

Juliet K. Choi, president and CEO of the Asian & Pacific Islander American Health Forum, added that researchers can use disaggregated data to demonstrate differential outcomes for racial and ethnic subgroups. According to Urban researchers, many analyses gloss over the distinctive experiences of different Asian American and Pacific Islander subgroups, such as Native Hawaiian and Pacific Islander communities and the Vietnamese, Hmong, and Indonesian populations, which can create a major barrier to understanding disparities across those communities.

Enforce existing legal protections

Title VI of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, or national origin in any program or activity that receives federal financial assistance. But in 2001, the Supreme Court ruled that Title VI “reaches only instances of intentional discrimination,” thereby setting a high bar for challenging systemic inequities in health care, as discrimination can occur with or without intent. But Dayna Bowen Matthew, dean at George Washington University Law School, proposed strategies for navigating this legal constraint.

Section 1557 of the Affordable Care Act, which prohibits discrimination in covered health programs or activities, offers one avenue, Matthew said. Despite being “one of the most important pieces of civil rights legislation that focuses particularly on health,” the Office for Civil Rights of the Department of Health and Human Services has been “completely negligent” in enforcing Section 1557 to combat racial and ethnic disparities in health care, Matthew said.

The Fair Housing Act of 1968, which prohibits housing discrimination based on a person’s race and national origin (among other categories), could be used as a model for prohibiting discrimination in health care. Along with stronger enforcement under Section 1557, creating fair health care legislation modeled on the Fair Housing Act could strengthen legal antidiscrimination protections.

Lastly, under the False Claims Act enacted in 1863, health equity advocates could pursue legal action against health care systems that receive federal funding—and that’ve had to certify their compliance with antidiscrimination statutes as a result—but whose patient care outcomes demonstrate patterns of noncompliance. Social policy researchers could track and measure these strategies’ effectiveness in leveraging the law to promote health care equity.

Enlarge the legal strategy to address the social determinants of health

Societal drivers, such as socioeconomic status, education, and neighborhood conditions—and, more fundamentally, structural racism—contribute significantly to racial and ethnic disparities in health. In addition to supporting creative legal strategies for navigating pushback against diversity efforts, Matthew called for more comprehensive solutions, such as reparations, that can address the deeper roots of racial inequality.

Recently, Urban published a brief exploring how social policy research can inform a national reparations agenda. The researchers proposed that an evidence-based reparations policy could improve key outcomes across multiple domains, including health, wealth, and education.

As the rising pushback against DEI efforts continues to threaten progress in advancing health equity, the human toll keeps climbing. To capture the sheer human cost of health disparities in the US, Harvard sociologist David Williams asks us to imagine a fully loaded jumbo jet, including 220 Black passengers and crew, taking off, crashing, and killing everyone on board, day after day after day.

Adopting bold, social policy approaches—driven by evidence and informed by proven legal strategies—may overcome the rising pushback and help ensure all people, regardless of race or ethnicity, are afforded high-quality health care and the opportunity to live a healthy life.