Just Medicine: A Cure for Racial Inequality in American Health Care

Chapter 9 of Just Medicine proposes reforms to Title VI of the Civil Rights Act to address racial and ethnic health disparities caused by implicit bias. These reforms include prohibiting policies with disparate racial impacts, restoring private litigation rights, and introducing negligence-based claims.

In the section, “The Original Title IV,” Matthew analyzes Title VI of the Civil Rights Act of 1964, which prohibits racial, ethnic, and national origin discrimination by federally funded organizations including healthcare institutions. Matthew suggests that Title VI should be reformed to address implicit bias, similar to the ongoing efforts to reform employment discrimination law. Both laws, Matthew argues, have been interpreted by courts to primarily address intentional discrimination, thus failing to account for modern, implicit bias, which causes unintentional but harmful disparities.

Matthew draws from legal scholarship on employment discrimination law reform to argue for changes in Title VI. She discusses the work of legal scholars like David Oppenheimer, Marc Poirier, and Tristin Green, who propose using a “negligence standard of care” (197) in discrimination cases to hold organizations accountable for unconscious biases that result in discriminatory outcomes. Providing a legal penalty for a failure to meet the standard of care due to negligence, these scholars argue, will shift focus from proving intent to preventing discriminatory effects, encouraging organizations to take proactive measures to mitigate biases.

Matthew discusses the potential benefits of such reforms, including reducing discrimination without needing to prove moral fault and fostering institutional responsibility to manage bias. Matthew notes that some scholars challenge these reforms, arguing that implicit biases are too pervasive and difficult to eliminate through legal means. However, Matthew counters that courts already influence behavior in other kinds of discrimination cases—such as those dealing with sexual harassment—without strong empirical evidence of program effectiveness. She advocates for courts to use social science research to better understand and address bias.

The chapter also traces the legislative and judicial history of Title VI, beginning with the landmark case of Simkins v. Moses H. Cone Memorial Hospital (1964), which played a pivotal role in Title VI’s passage by declaring that publicly funded hospitals could not segregate based on race. Despite this intent, the US Supreme Court has severely limited Title VI’s reach in recent years. In Alexander v. Sandoval (2001), the Court ruled that Title VI only covers intentional discrimination, removing disparate impact claims from private lawsuits and leaving such claims to administrative enforcement. Matthew points out that this ruling ignores the long-standing precedent in cases like Lau v. Nichols (1974), which interpreted Title VI as addressing both intentional and unintentional discrimination.

The section “Implicit Bias Claims under Current Law” argues that the Supreme Court could interpret Title VI to address implicit bias. Justice Marshall and Justice Ginsburg recognized in the past that unconscious racism can have harmful impacts. However, Matthew notes that the courts hesitate to punish unintentional discrimination due to concerns about fairness. Matthew argues that Title VI could be reformed by reintroducing private enforcement for unintentional discrimination, explicitly prohibiting racial discrimination due to implicit bias, and applying a negligence standard of care for unconscious racism claims.

In section “Fixing Title IV,” Matthew argues that the reform of Title VI would expand enforcement by allowing private citizens to sue for unintentional discrimination, helping to address subtle forms of bias that government resources alone cannot address. Matthew draws from legal scholarship, advocating that Title VI should reflect a negligence standard of care, where federally funded organizations would need to demonstrate they took reasonable steps to reduce discriminatory harms from implicit bias. This approach aligns with scientific research on how unconscious racism influences decision-making and health outcomes.

Matthew envisions a legal framework in which healthcare providers and other federal aid recipients are required to implement evidence-based interventions to mitigate bias or face legal consequences. Such reforms will incentivize organizations to adopt practices that reduce disparities.

The final section of Chapter 9, titled “Anticipating Objections,” addresses possible criticism regarding reforming and applying Title VI to address implicit bias—for example, that such an effort is unrealistic and prejudiced. However, Matthew asserts that the scientific evidence of malleability justifies accountability for implicit bias. She emphasizes that reforming Title VI will inspire systemic changes in healthcare delivery, align policies with social science findings, and enhance civil rights enforcement across federal funding recipients.

In the Conclusion of Just Medicine, Matthew emphasizes the importance of Section 1557 of the Affordable Care Act, which bans discriminatory behavior in healthcare. While this new civil rights provision offers new protections, Matthew argues that it is not a complete solution. While Section 1557 is in its early stages and lacks fully developed regulations and procedural clarity for enforcement, initial cases have shown that the law can drive changes in discriminatory practices.

Matthew stresses that achieving racial and ethnic justice in healthcare requires more than just legal reform. She calls for systemic change in the ways healthcare institutions operate and for deeper social science research that addresses the underlying structures of racism. Matthew challenges policymakers, researchers, and healthcare providers to broaden their efforts beyond individual bias and recognize the systemic inequalities that perpetuate disparities in health outcomes. She advocates for a multi-sectoral approach to combat the socioeconomic factors that contribute to health disparities.