MIRENGOFF: Insuring racial discrimination

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By Paul Mirengoff

COMMENTARY:

President Obama made a good first impression late last year when he declined to select hard leftists for key positions such as secretary of defense and national-security adviser.

Even Eric H. Holder Jr., Mr. Obama's choice for attorney general, did not have a reputation as an ideologue, though his involvement in President Clinton's presidential pardons raised other concerns.

Conservatives warned, however, that the real test would occur when the administration filled the top jobs just below the Cabinet level, where key policy decisions typically are made. As feared, the Obama administration has populated key sub-Cabinet positions with left-wing ideologues.

Consider Mr. Holder's Justice Department. The radicalism of Dawn E. Johnsen, the nominee to head the vital Office of Legal Counsel, has been well-documented and may result in a filibuster. Ms. Johnsen once compared the curtailment of a woman's ability to obtain an abortion to slavery. She also has been at the forefront of the movement to limit the president's ability to wage war on terrorism.

Thomas Saenz, Mr. Obama's initial choice to head the Justice Department's Office of Civil Rights, made his name trying to limit the government's ability to enforce laws against illegal immigration. Perhaps fearing a backlash, the White House shied away from Mr. Saenz and instead nominated Thomas E. Perez.

Mr. Perez also has been an advocate for illegal immigrants. However, he is best-known for his efforts to develop cutting-edge theories with which to defend discrimination in favor of blacks and other minority groups.

In a 2006 article in the University of Maryland's Journal of Health Care Law and Policy, Mr. Perez argued for the preferential treatment of minority applicants for medical school admission on the theory that minority medical school graduates are significantly more likely than their white counterparts to provide care to the poor.

In the 2003 case Grutter v. Bollinger, the Supreme Court already had upheld racial preferences in university admissions because they advance a supposedly compelling interest in producing a diverse student body. Mr. Perez concocted his alternative argument to provide what he called an "insurance policy" in case the Supreme Court overturns the "diversity" rationale now that Justice Sandra Day O'Connor has retired. He also called for an examination of whether the use of race-based preferences by other professional schools could be supported as necessary to ensure that poor people are served.

Mr. Perez's article is an effective piece of advocacy, full of evidence that minority medical graduates do, indeed, serve the poor in disproportionately high numbers. However, Mr. Perez's analysis is not intellectually honest because it fails to acknowledge that those admitted through racial preferences also are disproportionately likely to do poorly in medical school and, thereafter, disproportionately less likely to obtain important board certifications. In other words, lowering admission standards for minority applicants reduces the number of well-qualified doctors.

This result is hardly surprising. The normal medical school admissions process has been crafted, after years of experience, to identify the candidates most likely to succeed in medical school and the profession. Overriding that process to favor one group entails intentionally selecting individuals with worse prospects for such success than some of those who are rejected. This is true whether the favored group consists of whites or non-Jews, as it did in the distant past, or blacks and Hispanics, as it does today.

Given the professional shortcomings of many affirmative-action admittees, their tendency to serve poor patients means that such patients tend to be treated by underqualified doctors. As commentator Linda Chavez puts it, this amounts to a form of "medical apartheid."

Proponents of race-based preferences might counter that being served by underqualified doctors is better than not being served at all. But this assumes that skin color, rather than a lack of options because of weak credentials, explains why the beneficiaries of racial preferences find themselves serving the poor. Mr. Perez offers no meaningful data to support such an assumption.

Accordingly, Mr. Perez is in no position to deny that, in a purely merit-based admissions system, those at the bottom of their class will serve the poor to roughly the same extent they do under a racial quota system. The only difference (other than skin color) would be that, in a merit-based system, this cohort will consist of better doctors.

Moreover, even if Mr. Perez were correct in assuming that, everything else being equal, minority doctors will gravitate toward poor patients, he ignores the option of combining colorblind admissions with a system of incentives for doctors to serve the poor.

Such a system would promote equal access to medical providers while maximizing the quality of the treatment provided to low-income patients. Even more important, it also would accomplish this without subjecting medical school applicants to racial discrimination.

Preventing discrimination, not developing "insurance policies" to sustain it, should be the mission of the chief of the Justice Department's Civil Rights Division.

Paul Mirengoff is a lawyer in Washington and a co-author of Powerlineblog.com.