DOJ says UC Davis is violating the law and giving racial preferences in defiance of the Supreme Court

The worst kept, open secret in medicine is: universities are breaking the law

UC Davis is the latest school that the DOJ says it has caught violating the law.

Elsewhere on Sensible Medicine, Cifu, Mandrola and I gave 3 takes on Yale. Now UC Davis is under the DOJ spotlight.

Per the press release: “Davis Med’s actions reflect both unabashed contempt for the rule of law and plain disregard for the potential public health consequences of putting race over merit, skill, and competence,” said Assistant Attorney General Harmeet K. Dhillon of the Justice Department’s Civil Rights Division. “The Department will not allow schools to violate federal law without consequence.”

I offer 4 points.

1. As a matter of the law. I have no doubt that Yale and UC Davis are breaking the law, and doing it brazenly: admitting they are breaking the law and encouraging other universities to join them.

The strongest argument against Yale is that Yale submitted an amicus brief to the Supreme Court saying that if they did away with Bollinger, and did not allow Yale to consider race explicitly, Yale would have far fewer black and hispanic students. The court did exactly this— ruled against Yale— but the percentages did not change at all.

It’s like the UberEats driver telling you the only way I can get you order in 20 mins is by reckless driving— going 75 miles an hour, and cruising through stop signs. No, don’t do that, you caution, and then he arrives in 19 minutes.

The UC Davis case might be even more damning. DOJ provides many documents where administrators admit to flaunting the law. UC Davis published this in a peer reviewed journal.

The DOJ argues that you cannot use variables that are colinear to race to merely decode race. Collinearity means saying we don’t consider if someone is a man or woman when hiring, but we ask all applicants if they pee standing up. DOJ claims that UC Davis essentially admits they do exactly this, again in peer reviewed literature.

So it is more like the UberEats driver arriving in 19 mins looking flustered, saying my radar detector was on the fritz. The bumper of his car is busted. And you see lights and sirens in the distance. Were you speeding? you ask. No, that’s against the law, the driver says, I was just going really fast. What’s that paper on the pizza box, you ask. Its a brochure called how to beat speed traps.

As an aside, the DOJ finds this UC Davis slide, which it determines uses reasoning outlawed by the court. I have just 2 points on this.

1. The racial concordance = better outcomes literature abounds with low quality research. I am not aware of a single credible paper. Famously in 2020, a paper claimed that racial concordance led to fewer black babies dying. At the time, I noted severe flaws of the paper like misattributed patient care and other problems. Since then, the paper has been completely debunked—as the authors did not adjust for extremely low birth weight— a risk factor for death. Look at who black and white doctors care for (Figure below).

   The rest of the literature is similarly poor. It is inappropriate for a university to state as fact something that lacks evidence. If someone is aware of a good paper, please send it to me, so I can review it here.

   

2. Being more or less likely to work with underserved patients is a surrogate. If you accept a utilitarian mindset (inherent in this argument) the policy question is what type of admissions decisions leads to the best outcomes for the underserved and for everyone. There is no credible study on this topic. There may be complex phenomenon like the babies example: white doctors are disproportionately more likely to care for low birth weight black infants.

Back to the main points

2. Anyone who works at a university and is privy to internal discussions, would have to admit that Yale and UC Davis are just more brazen than most, but yes, of course, administrators are breaking the law. It is an open secret that universities do not support the policies of this administration, are #resisting in so far as possible, are actively defying those policies, believe the supreme court lacks legitimacy, etc, etc. Universities have lost the political center. Everyone laughs about how we will continue to use race as a factor for admissions, as we walk to the noon talk called: climate change and chemotherapy, which drugs have the highest CO2 emissions. Followed by misinformation: why the Biden administration’s policies were written by Moses. And 2+2 = 5: How Misinformation became the leading cause of death, by Bob Calif. Next week is: why are you cutting my government funding?: we were apolitical the whole time.

3. There is a difference between taking class into account, and tuning the variables to optimally predict race. DOJ notes UC Davis sure looks like it doing the latter. First they break down these variables by race, and look at the gap

   

   Then they create models and benchmark it against racial outputs

   

   Finally, they admit they are worried about being sued.

   

4. In my opinion, it appears Harmeet Dhillon is a formidable attorney, and the DOJ will likely get a settlement. If even a fraction of faculty at universities provide DOJ with information about their processes, I suspect many more universities will face DOJ scrutiny.