We’re returning to the affirmative action case that sent liberal America into a tailspin. The late June ruling by the Supreme Court struck down the practice in higher education applications as unconstitutional, leading to a couple of days of rage from progressive commentators. It quickly died because not even black Americans supported the protocol; many Black Americans were not keen on the practice.
Overall, 63 percent of Americans oppose affirmative action procedures, with Asian Americans being one of the most vocal communities voicing their opposition. The liberal media hilariously tried to manufacture the narrative that Asians support affirmative action, despite 76 percent saying they don’t think race or ethnicity should be considered in the college application process.
...Yet, the media is still citing the first error as proof that race-blind admissions will kill Black patients. Time's Janelle Ross declared "Some of us are probably going to die." She then cited both the original flawed claim and then the new challenged claim as dispositive.
— Jonathan Turley (@JonathanTurley) July 31, 2023
...The controversy highlights the danger of "Brandeis briefs" in making statistical claims that the Court is poorly equipped to evaluate or scrutinize. Notably, both alleged errors came from the same brief by the Association of American Medical Colleges. https://t.co/vXQSTx2HaP
— Jonathan Turley (@JonathanTurley) July 31, 2023
Yet, Justice Ketanji Brown Jackson’s dissent in the companion case— Students for Fair Admissions, Inc. v. University of North Carolina—raised some eyebrows when she cited shoddy data to justify the affirmative action process. In short, namely that black babies will die if this policy for college applications is scuttled:
“It saves lives. For marginalized communities in North Carolina, it is critically important that UNC and other area institutions produce highly educated professionals of color. Research shows that Black physicians are more likely to accurately assess Black patients’ pain tolerance and treat them accordingly (including, for example, prescribing them appropriate amounts of pain medication). For high-risk Black newborns, having a Black physician more than doubles the likelihood that the baby will live, and not die.”
Association of American Medical Colleges, who filed an amicus brief in this matter, asked that a correction be issued because, mathematically, what Jackson said is impossible. Law professor Jonathan Turley added today that there’s another issue with the dissent: she cites how black doctors can better diagnose black patients regarding pain management. The research shows it, says the jurist. The problem is that the data is scarce in supporting that position. Turley cited what Time’s Janelle Ross wrote about how race-blind workplaces could lead to the deaths of more non-whites. Ross highlighted the second academic boo-boo committed by Justice Jackson in the process:
Ross then cited the second claim as dispositive proof that race blindness will kill blacks. In her dissent to Students for Fair Admissions, Jackson wrote, “research shows that Black physicians are more likely to accurately assess Black patients’ pain tolerance and treat them accordingly.” This included “prescribing them appropriate amounts of pain medication.”
However, critics object that none of the four studies cited by AAMC support that claim. They reportedly explore problems of Black patients in dealing with pain management, but do not examine the relative efficacy of doctors of different races. They further note that AAMC has pushed DEI policies, including the use of race in faculty appointments and admissions to medical schools. These claims are used to justify the use of race as a criterion.
A review of the studies seems to confirm the objections. For example, the first study cited was Kelly M. Hoffman et al., Racial Bias in Pain Assessment and Treatment Recommendations, and False Beliefs about Biological Differences Between Blacks and Whites, 113 Proc. Nat’l Acad. Scis. 4296, 4298-30 (2016). However, that study focused on how “false beliefs” can impact the community, though it did find that half of a sample of white medical students and residents endorsed some of these false beliefs.
The second study is Monika K. Goyal et al., Racial Disparities in Pain Management of Children with Appendicitis in Emergency Departments, 169 JAMA Pediatr. 996, 998-999 (2015). However, that study deals with racial disparities in use of analgesia in emergency departments and does not focus on the race of the doctors.
The third study is Karn O. Anderson et al., Racial and Ethnic Disparities in Pain: Causes and Consequences of Unequal Care, 10 J. Pain 1187, 1198 (2009). This study, however, is a review of recent literature on racial and ethnic disparities in pain on reducing and eliminating disparities in pain. Again, the focus is on the treatment levels, not the race of the treating physicians.
The final study is C.S. Cleeland et al., Pain and Treatment of Pain in Minority Patients With Cancer, Eastern Cooperative Oncology Group Minority Outpatient Pain Study, 127 Annals Intern. Med. 813, 815 (1997). Again, the study focuses on the continued failure to offer adequate pain control and suggested new approaches to the control of cancer-related pain in this patient population.
As shown by these studies, there are obviously serious concerns over the health care for the Black community with higher rates of mortality in some areas and concerns over access to medical treatment. However, these statistical claims suggest that the race of doctors in driving some of these differences. The selective use of such studies can often play to confirmation bias in crafting opinions.
It's about to be August, and no one is taking to the streets because, on its face, race-blind admissions and hiring practices aren’t controversial. For this to work, the Left must make people jump onboard a crazy train, and most of us who must work don’t have time to dither on these academic exercises that go nowhere and serve no purpose other than stroke the liberal ego. No one wants this practice around anymore. And for the time being, it is dead. Get over it. For the Left, their legal energies should be focused on Joe and Hunter Biden, with the former heading toward impeachment inquiries and the latter looking at prison.
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