The News: The Wisconsin Institute for Law & Liberty (“WILL”) has notified the Trump Administration of its latest report entitled, Roadmap to Equality: Healthcare, which identifies over fifty U.S. Department of Health and Human Services (“HHS”) programs and initiatives that mandate, permit, or promote discrimination on the basis of race in the public and private sectors. 

Most of these schemes set forth classic forms of impermissible governmental race discrimination, long held to be unconstitutional. In particular, numerous HHS initiatives are impermissibly designed to implement a racial balance throughout the healthcare workforce and treat various health conditions in response to broad societal disparities. In addition, many of these initiatives unlawfully require or permit federal funding recipients to implement the government’s plans for racial discrimination and segregation in various health and health-related policies and programs. 

Our findings urge the new administration to carefully investigate the identified HHS initiatives and immediately cease enforcement of all unconstitutional and unlawful racial discrimination.  

The Quotes: WILL Associate Counsel, Cara Tolliver, stated, “President Trump’s executive orders to eliminate unconstitutional, government-sponsored DEI and race-based programs are commendable. But now the challenge to root out such programs and actually end them continues. The U.S. Code—including those federal statutes that HHS administers—is riddled with dozens of unconstitutional race-based requirements and goals to balance outcomes and populations by race, some of which span decades. We hope the new administration and policymakers will continue taking action to end the federal government’s perpetual disregard of the Constitution and human dignity.” 

Additional Background: In a letter to HHS, the Department of Justice (“DOJ”), and the Office of Management and Budget (“OMB”), WILL identifies 55 HHS initiatives that sanction federal funding on the basis of race for health and healthcare-related assistance.  

Many of these initiatives reflect HHS’s efforts to achieve certain racial balances in the healthcare workforce and involve schemes that span decades. This includes federally funded education and training grants, scholarships, loans, fellowships, and other assistance. One example, the “Nursing Workforce Diversity Program” (“NWD Program”) has been in place since 1998, providing grants to eligible nursing schools. But the program is not designed for all aspiring nurses. As explained within HHS program materials, the “purpose” and “goal” of the NWD Program is to “[i]ncrease the number of individuals from disadvantaged backgrounds, including ethnic and racial minorities underrepresented among registered nurses, who are enrolled in nursing degree programs.” Similarly, HHS operates multiple federal assistance programs that provide loans, scholarships, and fellowships to eligible health professions schools under various race-based conditions, including the requirement that schools maintain student and faculty programs for recruiting and retaining racial and ethnic minorities. 

Even worse yet, dozens of other HHS funding schemes aim to achieve racial balances with respect to health outcomes and health-related issues. Under this approach, the government uses race to prioritize health conditions and issues. Instead of concern and care for individuals who are plagued by a given health condition or issue, the government narrows its scope, focusing its assistance on certain, favored racial minority groups. The government implements this design in selecting for and addressing numerous health conditions and issues on the basis of race—including, for example, funding initiatives aimed to improve health outcomes for certain minorities with respect to obstetrics care, AIDS/HIV, cancer, drug and alcohol abuse, domestic violence, health insurance enrollment, and more. 

In other words, HHS seeks to implement race-based segregation in its funding initiatives, viewing health conditions and issues differently depending on one’s race. If there are perceived disparities in health status for certain minority groups, the government deems these “minority health issues” that must be dealt with separately from the “general population” and addressed by a racially balanced workforce that can specifically administer to such minority individuals. Continuing with these separatist notions, HHS has also used various “minority health offices” to implement numerous race-based initiatives. 

The problem with these approaches is well established: efforts to achieve racial parity—such as seeking to balance the healthcare workforce or level the scales of mortality and morbidity—have been long rejected as “patently unconstitutional.” Moreover, the government is prohibited from relying on generalized societal disparities to justify racially motivated action. 

At their core, HHS’s attempts to reduce racial disparities and ensure racial balance are based upon illegitimate racial stereotypes, in which individuals are treated as the product of their race when determining who is in need of, or entitled to, education and training opportunities as well as patient-related care and assistance. 

WILL’s letter and report urges the Trump Administration to carefully investigate the HHS initiatives identified by WILL and immediately cease all implementations and enforcement of any unconstitutional and unlawful racial discrimination. The government’s racially motivated action must be supported by a constitutionally permissible basis, not merely a response to perceived societal disparities grounded in the assumptions of racial stereotypes. 

WILL Promotes True Equality: WILL’s Roadmap to Equality: Healthcare report and letter highlight our constitutional concerns with numerous race-based initiatives implemented by HHS. This report is in addition to our previously released Roadmap to Equality report, which identified dozens of discriminatory federal programs and policies at eleven cabinet-level agencies. 

Pursuant to the Affordable Care Act and Title VI of the 1964 Civil Rights Act, WILL has filed a number of civil rights complaints against healthcare entities and academic medical centers for similar race-based discrimination. As a result, HHS has correctly determined to open investigations into the Cleveland Clinic, Johns Hopkins University, and Cincinatti Children’s Hospital Medical Center. 

Since 2021, WILL has represented over 80 clients in 25 states as part of its Equality Under the Law (“EUL”) Project, winning seven lawsuits and achieving settlements, with many cases still pending. 

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