The nonprofit organization Do No Harm is challenging a 35-year-old law in Tennessee that requires the governor to appoint members to state licensing boards based on racial quotas in a lawsuit filed in the U.S. District Court for the Middle District of Tennessee, Nashville Division.
The complaint claims Tenn. Code 8-1-111 and 63-3-103 (b) violate the equal protection clause of the Fourteenth Amendment to the U.S. Constitution. The plaintiffs are seeking a declaratory judgment, a permanent injunction on the racial mandates and reimbursement for legal fees.
“Using race to make appointments to government boards is not only demeaning and unconstitutional, but it undermines the distinctive spirit of the Volunteer State by precluding opportunities for Tennesseans to serve their local communities,” said Laura D’Agostino, an attorney with Pacific Legal Foundation (PLF) representing Do No Harm, in a press release.
“State medical boards are given important responsibilities to oversee the quality of care in their state and the safety of patients,” said Stanley Goldfarb, M.D. chairman of Do Not Harm, in the press release. “It is crucial that they be the most qualified physicians available. Like all aspects of healthcare, patient safety and patient concerns should be primary, not the skin color or the racial makeup of any oversight committee.”
Eleven of the state’s 70 licensing boards supervise health care professions in the state. Licensed podiatrists who are members of Do Not Harm are seeking to fill two vacancies on Tennessee’s six-member Board of Podiatric Medical Examiners. The seats have not been filled despite more than 200 podiatrists in the state.
“Tennessee is one of several states nationwide that mandate the governor to engage in racial balancing when making appointments to public boards and commissions,” D’Agostino told Health Care News in an email. “Apart from the Board of Podiatric Medical Examiners, the governor must ensure that he complies with a specific racial quota for nearly 70 other boards, including a catch-all statute that requires the governor to engage in racial balancing whenever making appointments to any public board or commission.
New Precedent on Race Quotas
Last summer, the U.S. Supreme Court ended racial preferences among college applicants in Students for Fair Admissions v. University of North Carolina.
The same rationale applies in the Tennessee case, said D’Agostino. “After Students for Fair Admissions, only two compelling interests justify race-based government action: (1) “remediating specific, identified instances of past discrimination that violated the Constitution or a statute” or (2) avoiding imminent risk of riots in prison,” said D’Agostino. “The government may try to argue that it is attempting to remediate past discrimination with its racial quotas, but the legislative record strongly indicates otherwise.”
PLF reviewed the 1988 legislative recordings and discovered there were no discussions about any past discrimination.
“On the contrary, there were questions on whether these quotas were ‘constitutional’ or ‘legal,’” said D’Agostino. “Unfortunately, these concerns did not halt the passage of these statutes, and countless people across the Volunteer State have been precluded from serving their local communities ever since—we hope to change that. The governor’s office filed a motion to dismiss our complaint yesterday (January 8), and we are drafting our response.”
According to a PLF report which D’Agostino co-wrote, at least 25 states have race-or sex-conscious mandates for public licensing boards. In the medical field, those include boards that oversee chiropractors, dental hygienists, dentists, nurses, occupational therapists, optometrists, pharmacists, psychologists, physical therapists, physicians, podiatrists, social workers, and veterinarians.
Licensing boards interpret laws, rules, and regulations, investigate complaints, and have the authority to discipline licensed professionals.
AnneMarie Schieber (amschieber@heartland.org) is the managing editor of Health Care News.
Internet info:
DO NO HARM, v. William Lee, U.S. District Court for the Middle District of Tennessee, Nashville Division, November 8, 2023: https://pacificlegal.org/wp-content/uploads/2023/11/11.08.23-Do-No-Harm-v.-William-Lee-PLF-Complaint.pdf
