When doctors consider whether to administer a particular medical treatment, they have to balance the treatment’s efficacy (that is, how likely the treatment is to help the patient, and by how much) against negative side effects (that is, how likely the treatment is to harm the patient, and how badly). Sometimes the patient’s race can affect the calculus, because some treatments have been scientifically and biologically shown to be less effective (or to generate worse side effects) for individuals of certain races. It would be bizarre, and perhaps malpractice, if a doctor were to ignore such physiological data demonstrating racially disparate treatment outcomes or side effects. But government doctors must be particularly careful: on the one hand, they are professionally and morally obligated to provide the best practicable medical care to their patients; on the other hand, because they are public actors, decisions they make based on racial classifications are subject to strict judicial scrutiny—among the most skeptical and unforgiving forms of judicial second guessing known to American law. Under the modern Supreme Court’s equal protection jurisprudence, any governmental use of race as a means of sorting individuals for differential treatment—even if race is just one factor among many in the individualized decisionmaking process—is constitutionally permitted only if using race is the most narrowly tailored way to achieve a compelling governmental interest. Given our country’s long and shameful history of invidious racial discrimination by governmental actors, this rule generally makes sense. But last week the Ninth Circuit decided a case that shows how tricky government consideration of race can be, and how lower court judges sometimes make missteps in this complex area.
The case is Mitchell v. Washington. George Mitchell was civilly committed as a sexually violent predator in 2003. He suffers from hepatitis C, and he is African American. In 2009, concerned that his hepatitis was getting worse and worried about infecting his new wife, Mitchell asked Dr. Thomas Bell, the medical director of the government facility in which he was incarcerated, to give him interferon and ribavirin, which was then a leading treatment for hepatitis C. Dr. Bell reviewed Mitchell’s liver biopsy and determined that the disease had not progressed to the point where interferon and ribavirin treatment, which carries severe side effects, made sense for Mitchell. Dr. Bell also told Mitchell, as part of the explanation for the treatment decision, that this particular treatment was generally unsuccessful for African-American males like Mitchell. Accordingly, Dr. Bell declined to prescribe the interferon and ribavirin in 2009. (Mitchell did get the treatment in 2012, and it was not successful at that time.)
Mitchell sued, claiming, among other things, that Dr. Bell’s decision to deny him interferon and ribavirin in 2009 violated his rights under the Equal Protection Clause. The district court granted the defendants’ motion for summary judgment seeking dismissal of the claims, and Mitchell appealed.
Last week, a three-judge panel of the Ninth Circuit published an interesting decision in the case (with all three judges agreeing as to an outcome in favor of the defendants, but not as to the proper rationale). The two-judge majority, comprised of Dorothy Nelson and Wallace Tashima, found that Dr. Bell, in taking account of Mitchell’s race in deciding what treatment to provide him, had employed a racial classification, and that strict scrutiny therefore applied. The majority then ruled that Dr. Bell did not meet his burden under strict scrutiny to show that his use of race was narrowly tailored to achieve a compelling government interest. Indeed, the Ninth Circuit found that Dr. Bell didn’t explain why his consideration of Mitchell’s race was justified under valid medical principles at all, but instead Bell “argu[ed] only that” strict scrutiny ought not to apply, an argument the Ninth Circuit found legally wrong.
The Ninth Circuit majority seems on firm ground up to this point—Dr. Bell, so far as the opinions reveal, really did fail to point to evidence in the record (even if such evidence might exist) that would provide the strong basis required under strict scrutiny for taking Mr. Mitchell’s race into account. But then the Ninth Circuit majority went astray, in two respects.
First, they did more than simply reject defendant’s claim to summary judgment—they held (wrongly) that the defendant was guilty of a constitutional (equal protection) violation, saying directly: “we hold that the violation of a constitutional right occurred.” Why was this a mistake? Because a defendant’s request for summary judgment (which was the only matter pending before the Ninth Circuit—the plaintiff himself apparently had not sought summary judgment) asks only whether the evidence in the record is so one-sided that defendant must necessarily win. Even if the record is not strong enough for the defendant to obtain summary judgment, the proper result is to remand the case for a trial, not to rule in favor of the plaintiff on the merits. That is, even if Dr. Bell hadn’t put enough evidence into the record to obtain summary judgment on the question of the scientific wisdom and the medical necessity of his use of race, he should have been allowed to go back and do so in the trial court before he was adjudged to have violated the plaintiff’s equal protection rights.
This mistake has consequences because, as the third judge (Richard Clifton) pointed out, the Ninth Circuit’s holding that Dr. Bell actually violated Mitchell’s constitutional rights (even though Dr. Bell may in fact have had ample scientific basis for taking race into account and simply failed to adequately support his motion for summary judgment by including it) might put pressure on other government doctors not simply to justify their use of race more substantially when they seek to deflect litigation, but to refrain from taking a patient’s race into account altogether, even when it would be good medicine (and perhaps ethically required) to do so.
One reason the Ninth Circuit majority may have failed to see its mistake (and we think law schools bear a small part of the blame here, for not adequately training law clerks in technical civil procedure) is that the Ninth Circuit judges had an alternative ground for ruling in the defendant’s favor—qualified immunity. Alas, the Ninth Circuit’s reasoning on qualified immunity was mistaken too.
Qualified immunity is a legal doctrine that allows governmental defendants who have or may have violated a plaintiff’s constitutional rights to nonetheless be free from having to pay damages because the legal wrongness of the defendants’ conduct, at the time of the conduct, was not sufficiently clear that reasonable defendants would have known better and acted differently. The Ninth Circuit conferred immunity on Dr. Bell in Mitchell because there seems to be no previous case “involving the particular circumstances presented by this case”—namely, “the use of race-related success-of-treatment data as a factor in a medical treatment decision”—to have put Dr. Bell on notice that his use of race could be unconstitutional. But the Ninth Circuit asks the wrong question here; certainly a prior case involving extremely similar facts might suffice to put a defendant on notice, but it is hardly necessary. There may be no case that involves boiling someone in oil, but surely jailors are on notice that such a punishment would be considered cruel and unusual. Or, closer to the setting of Mitchell, there may no case discussing how wrong it would be for the cops to round up all black persons in the vicinity of a recent crime if an eyewitness gave a description that lacked any information about age, gender, height, weight, body type, attire, hair, etc., and said only that “the perpetrator looked black to me.” Yet a cop who acted on such a description to detain African Americans should not be entitled to qualified immunity. The key question in any qualified immunity setting is whether the defendant should have known that what he did violated the Constitution, a question which can often be answered in the affirmative even in the absence of a factually similar prior case.
In the Mitchell lawsuit, the legal rule requiring that government actors justify every use of race by reference to a compelling interest to which the use of race is narrowly tailored (i.e., the applicability of strict scrutiny) was clearly established. And so holds the Ninth Circuit in Mitchell, observing that “[a]t the time of Dr. Bell’s actions, it was clear that the Fourteenth Amendment requires all racial classifications to survive strict scrutiny.” (We believe the Ninth Circuit is correct in this regard; the Supreme Court has repeatedly said all governmental racial classifications are subject to strict scrutiny, in affirmative action cases, in cases involving ostensible attempts to avoid prison gang violence, and others.) Given the clear mandate of strict scrutiny and the need for a strong government explanation for its use of race at all, and given the Ninth Circuit’s conclusion that (in the lawsuit so far, at least) Dr. Bell has not explained what scientific data led him to take Mr. Mitchell’s race into account, it is hard to see why Dr. Bell would be entitled to qualified immunity right now. (Judge Clifton, the third judge, did believe that “Dr. Bell’s consideration of race was based on credible, peer-reviewed studies,” but, importantly, Judge Clifton never points to anything in the record showing what Dr. Bell relied on and why that science was credible.)
Surely, any government doctor should know that before he takes a patient’s race into account, he must have some credible scientific reason for doing so—a doctor who uses a patient’s race in a treatment decision (even as a small factor) for no scientific reason at all would be violating clearly established constitutional law, even if the doctor subjectively believed he was doing the right thing (perhaps based on his own pet theories). And, according to the Ninth Circuit, Dr. Bell did not in his briefs point to the specific scientific support behind his race-based reasoning. He may be able to do so on remand, which, again, is why he should not be found guilty of a violation yet. But until we know what his scientific basis was, it is impossible to know whether his actions were legally reasonable at the time he took them.
Perhaps one could argue that the applicability of strict scrutiny to this kind of setting—patient treatment decisions—is itself not clearly established. But the Ninth Circuit majority rejected that argument, and rightly so. As we noted above, the Supreme Court has in numerous cases said that all government use of race is subject to strict scrutiny, whether or not there is obvious reason to suspect overt racism by government officials. Strict scrutiny is the tool we use to help us decide whether there was racial animus behind a government action that classifies based on race, and animus isn’t the only constitutional problem that can make the use of race illegal; stereotypes about race, inadequate regard for the harms done by the use of race, careless analysis regarding differences between racial groups, etc. are all reasons—in addition to old-fashioned racial hatred—that the government’s use of race as a sorting tool is frowned upon. We may be more accustomed to seeing strict scrutiny applied when race is used as a factor in admitting a student to a public college than when it is used as a factor in admitting a patient to a public hospital, or when race is used as a factor in a cop’s decision to detain a suspect because he fits an eyewitness’s description of a criminal perpetrator, but this is largely because strict scrutiny often will be satisfied in these latter settings, so the likelihood of litigation leading to published court rulings is smaller. The relative absence of cases in the latter settings does nothing to diminish the current Supreme Court’s clear and repeated message that strict scrutiny applies whenever the government consciously takes the race of individuals into account.
The medical treatment context actually provides a good illustration of why we have to be very careful about government use of race. As noted earlier, there are some instances in which good science might uncover biological reasons why certain treatments work differently depending on the race of the patient. And some level of deference to medical expertise, even in the application of strict scrutiny, might be appropriate (just as some level of deference is accorded universities in the admissions setting). But some studies suggesting different medical-treatment outcomes for patients of different races may end up, upon closer inspection, being based not on biology and physiology, but on socioeconomic or behavioral characteristics (such as failure of some patients to abide by post-treatment protocols) that happen to correlate with race (or class). And telling a patient that he should not get a treatment because other members of his racial group may tend to engage in certain behaviors (with the result being there are studies that show the treatment is less effective for his race) is obviously problematic. We are not saying that the science on which Dr. Bell relied is of this type. But we can’t know until, in the lawsuit, he explains more specifically what science he relied on and why it was good science on which to rely. As the Supreme Court reminded us in the 2013 Fisher v. University of Texas affirmative action case, strict scrutiny requires courts not to simply accept the government’s good-faith beliefs that the use of race is justified, but to independently examine the government’s data and its analysis to make sure the government has a sound (and not just good-hearted) basis for using race. That is, strict scrutiny exists to force the government to explain why it took race into account, and why, objectively, it made sense to do so. Until Dr. Bell explains in more depth what data and analysis he relied on to take Mitchell’s race into account, it is impossible to know whether Dr. Bell should reasonably have known that his actions violated equal protection (if they did).
The Ninth Circuit’s decision to end this case now may be understandable given the significant likelihood that Dr. Bell can explain his use of race well enough to satisfy strict scrutiny (or at least well enough that he could have reasonably believed his actions would survive strict scrutiny), but because the Ninth Circuit says he did not offer any compelling justification for the use of race at all, the court’s analysis is internally inconsistent, and legally flawed.