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HEALTH JUSTICE

“Of all the forms of inequality, injustice in health care is the most shocking and inhuman.”
— Dr. Martin Luther King, Jr.

USING CIVIL RIGHTS TOOLS TO ADDRESS HEALTH DISPARITIES

Ethnic and racial health and health care disparities are persistent and pervasive. Despite a wide range of approaches to address these disparities, they remain largely intact. The Affordable Care Act of 2010 (ACA) is expected to reduce disparities in access to health care and addresses health discrimination. In addition, the Civil Rights Act of 1964, the cornerstone legislation that prohibits discrimination based on race, color, and national origin by recipients of federal funding, and Executive Order 12898 on environmental justice and health can be used to address health disparities. If utilized consistently and applied with renewed efforts, civil rights laws can continue to address health care issues and reduce health disparities. These legal tools cut across diverse federally funded programs and activities. This article examines four health-related areas with disparities based on race, color, or national origin: (1) food stamp programs; (2) physical education in public schools; (3) parks and healthy green land use; and (4) access to health care services for limited English proficiency (LEP) populations. Civil rights laws including Title VI offer tools that attorneys and other stakeholders working with public health professionals, community groups, government agencies, and recipients of federal funds can use to alleviate health disparities. These legal tools are not limited to a litigation strategy. Voluntary compliance with civil rights laws is the preferred means to achieve equal justice goals. Civil rights attorneys continue the struggle to uphold and strengthen these laws.

Civil Rights Health

The following recommendations can help civil rights attorneys, public health professionals, community groups, public agencies, recipients of public funding, foundations and other stakeholders alleviate health inequities through compliance with civil rights laws.

Download the Policy Report by Michael Rodriguez, MD, MPH; Marc Brenman; Marianne Engelman Lado, JD; and Robert García, JD, Using Civil Rights Tools to Address Health Disparities.

CELEBRATE THE CIVIL RIGHTS REVOLUTION: THE STRUGGLE CONTINUES

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The People’s Climate Action March, New York City, 2014

2014 marked major milestones in the Civil Rights Revolution – and we’re just getting started! Civil Rights advocates are fighting to uphold the disparate impact standard of discrimination under the Fair Housing Act in the US Supreme Court in 2015, for example. The Civil Rights Movement is a paradigm for social change.

Opponents in the Inclusive Communities Project case in the Supreme Court are challenging the right to fight unfair and unjustified discriminatory impacts, even where there are less discriminatory alternatives, absent proof of intentional discrimination. The challenge to the disparate impact standard reflects a general attack on civil rights tools to combat discrimination. Disparate impact is a long standing safeguard for Civil Rights. Disparate impact is a legacy of the Civil Right Movement. Freedom from discrimination benefits everyone.

The Civil Rights Revolution is based on multiple strategies to promote human dignity, equal justice, and just democracy, and to overcome discrimination. The struggle continues today. Young people are moving the Movement forward from Ferguson to the Dreamers and beyond. Black lives matter – Latino lives matter, Asian American lives matter, White lives matter, each of our lives matters. Climate action will bring people together across movements and nations.

We celebrate the broad base and reach of the Movement. The Civil Rights Revolution includes attorneys taking cases to court, ground breaking judicial decisions, grass roots organizing, legislation by Congress, action by the President, implementation by administrative agencies, and people providing a mandate to support civil rights through the right to vote. The election of President Barack Obama was a major milestone in 2008. 2014 marked the 60th anniversary of Brown v Board of Education and Hernandez v Texas, the 50th anniversary of the Civil Rights Act of 1964, the 50th anniversary of the Wilderness Act, the 20th anniversary of the President’s Executive Order 12898 on environmental justice and health, and recent victories and challenges. Celebrate The Civil Rights Revolution: The Struggle Continues.

FAIR HOUSING IS A BEDROCK CIVIL RIGHTS PROTECTION: THE SUPREME COURT MUST PRESERVE THE DISCRIMINATORY IMPACT STANDARD

Fair housing is a bedrock civil rights protection, crucial to our nation’s core values of equal opportunity, human dignity, and just democracy for all. In the face of deeply entrenched patterns of residential segregation and exclusion, Congress enacted the Fair Housing Act to provide for fair housing throughout the United States. The Act has helped to free many communities from discrimination and connect millions of Americans to opportunity. Due to a variety of factors – some influenced by government, some not – many neighborhoods and communities do not reflect the diversity of our nation. Congress passed the Fair Housing Act in April 1968, in the immediate aftermath of the assassination of Dr. Martin Luther King, Jr.

The U.S. Supreme Court is deciding whether the Fair Housing Act will continue to protect people from all housing policies that discriminate in practice, absent proof of intentional discrimination. The Court heard arguments in the case called Texas Department of Housing and Community Affairs v. The Inclusive Communities Project on January 21. A decision by the Court is expected by June 2015.

This is the third time the Justices have reached out to address the unjustified discriminatory impact standard under the Fair Housing Act. (The previous two cases were settled by the parties before the Court reached a decision.) That does not mean the result is a foregone conclusion. It takes only four of the Court’s nine Justices to agree to hear a case, but a majority of five to decide the outcome of a case. Court watchers believe four members of the Court (Justices Ruth Bader Ginsberg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan) are likely to uphold the discriminatory impact standard under a strong and effective Fair Housing Act. Observers fear that the Court’s four most conservative members (Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito) could vote to weaken fair housing. As is often the case with civil rights questions, Justice Anthony Kennedy is likely to cast the deciding vote, and may write the controlling opinion.

The following analysis is based on the “friend of the court” brief filed by the Lawyers’ Committee for Civil Rights Under Law and other civil rights advocates, including The City Project, in the Inclusive Communities Project case. The brief focuses on the discriminatory impact standard and racially segregated neighborhoods where many people reside, isolated from high-performing public schools, good jobs, safe parks and streets, a clean, healthy environment, and reliable public services.

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The Selma to Montgomery March, Photo Tile in The Civil Rights Park, Los Angeles 2014

How to improve health outcomes for all using civil rights laws FAQs

1. What’s the problem? Ethnic and racial health inequities remain persistent and pervasive. Civil rights protections are part of the solution. There are many avenues to improve health outcomes for all through compliance with civil rights laws. These laws guarantee equal access to public resources and require recipients of federal funding and others to comply with nondiscrimination requirements based on race, color, or national origin. From a health perspective, civil rights laws offer important and underutilized tools to support health-based recommendations. From a civil rights perspective, the health lens offers a powerful way to improve compliance and protect civil rights. Voluntary compliance is the preferred means to achieve the goals of civil rights laws including health equity. Planning, funding, and administrative processes offer opportunities for public agencies and other stakeholders to improve the health and lives of people of color and low-income people without litigation. Access to justice through the courts is also an option when voluntary compliance fails. Government agencies, recipients of federal and state funds, and foundations should incorporate compliance with civil rights laws into programs and activities where there is evidence of health disparities.1

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Physical education is a necessity, and a right

2. Why are civil rights protections necessary to protect health and life itself? The documented costs of health inequalities are great. Between 2003 and 2006, for example:

  • The combined costs of health inequalities and premature death in the U.S. were $1.24 trillion.
  • Eliminating health disparities for people of color would have reduced direct medical care expenditures by $229.4 billion.
  • 30.6% of direct medical care expenditures for African Americans, Asians, and Hispanics were excess costs due to health inequalities.
  • Eliminating health inequalities for people of color would have reduced indirect costs associated with illness and premature death by more than one trillion dollars.2

Health is a state of complete physical, mental and social well-being, and not merely the absence of disease or infirmity, according to the World Health Organization. The social determinants of health include where we live, learn, work, play, pray, and age. Civil rights laws can go beyond health in all policies to achieve health equity in all policies.

3. Why does race and ethnicity matter? Discrimination based on race, color, or national origin is a root cause of health inequities, and a comprehensive strategy to eliminate these inequities must incorporate a strong civil rights component by government agencies and recipients of federal and state funds, as discussed in the Institute of Medicine’s book Unequal Treatment: Confronting Racial and Ethnic Disparities in Healthcare (2003).

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Obesity and diabetes disproportionately impact Latinos and Blacks

4. How do we improve health outcomes for people of color and low income people? Stakeholders should work together on compliance and equity planning for health programs and activities by recipients of federal or state funding and others. The plan should (a) describe what is to be done, (b) analyze the impact on all communities including the impact based on race, color, or national origin, (c) analyze alternatives, (d) include full and fair participation by diverse communities, and (e) include an implementation plan to alleviate health inequities and to distribute benefits and burdens fairly.

5. What is discrimination? Compliance and equity plans should guard against unjustified and unnecessary discriminatory impacts, as well as intentional discrimination. The discriminatory impact standard can ferret out subtle and structural practices that have demonstrably discriminatory health effects. A thoughtless policy can be as unfair as, and functionally equivalent to, intentional discrimination. As a matter of common sense, discriminatory programs or activities should be avoided in favor of those that serve everyone’s interests fairly, effectively, and without discrimination.

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National Park Service Healthy Parks Healthy People US

6. What can public agencies do? Federal funding agencies should ensure compliance with civil rights laws through the many avenues they have available. This includes data collection, analyses, and publication; planning; rules, regulations, and guidance documents; review of funding applications; contractual assurances of compliance by recipients; compulsory self-evaluations by recipients; compliance reviews after funding; investigation of administrative complaints; full and fair public participation in the compliance and enforcement process; and denial or termination of funding. The United States Department of Justice can enforce civil rights requirements in court. State and local agencies should use similar tools to ensure compliance with federal and parallel state laws.

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Economic vitality, meaningful work, and displacement

7. How can health impact assessments help? Health impact assessments (HIA) offer a promising way to factor health considerations into the decision-making process. HIA is a systematic process that uses an array of data sources and analytic methods and considers input from stakeholders to determine the potential effects of a proposed program or activity on health, and the distribution of those effects. HIA provides recommendations on monitoring and managing to minimize adverse health impacts, and optimize beneficial ones. Recognizing and addressing the effects of a proposal on health equity (or health disparities) has been seen as a core task of HIA, although HIA practice has sometimes been criticized for a lack of attention to health equity, according to the National Research Council. HIAs used with civil rights laws offer dual benefits to alleviate health inequities through compliance, planning, administrative, and judicial processes.

8. How can attorneys and public health experts work together? Attorneys and public health experts should work together to promote better understanding of the civil rights dimension of the challenge of health inequities, and to alleviate these inequities. Public health research too often stop at documenting health inequities, without addressing what to do about it.

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Civil rights are human rights

9. What can attorneys do? Attorneys should rely on civil rights laws as part of a comprehensive problem-solving strategy to address health inequities. This includes planning, data collection and analysis, media, negotiation, policy and legal advocacy out of court, coalition building, and, when necessary, access to justice through the courts.

10. What can foundations do? Foundations should incorporate compliance with civil rights laws into their programs and activities, including grant making, where there is evidence of health disparities. Foundations should support racial justice lawyers to use comprehensive problem-solving strategies to address health inequities. Funding for organizational capacity can strengthen philanthropic efforts across a range of programs. Strategic funding of national, regional and local groups can have a significant impact to improve health outcomes.

11. What civil rights laws apply here? The following civil rights laws, among others, address health inequities. The Affordable Care Act‘s section 1557 reflects a renewed commitment by Congress to combat health discrimination by any health program or activity that receives federal funding, or is administered by a federal executive agency. The Act also includes over 60 provisions to improve wellness and prevention. Title VI of the Civil Rights Act of 1964 and its regulations require recipients of federal funding to comply with nondiscrimination requirements based on race, color, or national origin. President John F. Kennedy in his message to Congress about Title VI said, “Simple justice requires that public funds, to which all taxpayers of all races contribute, not be spent in any fashion which encourages, entrenches, subsidizes, or results in racial discrimination.” Senator Hubert Humphrey, the floor leader for the Civil Rights Act, argued we “do not have to be lawyers to understand, ‘Do unto others as you would have them do unto you.’”  The President’s Executive Order 12898 on environmental justice and health requires each federal agency to identify and address disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations. Environmental justice is the environmental arm of the Civil Rights Movement. California law provides similar protections against discrimination.3 Civil rights laws against discrimination should be strengthened and not rolled back. This includes the prohibition against unjustified and unnecessary discriminatory impacts and intentional discrimination.

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Signing Executive Order 12898 on environmental justice and health, 1994

12. What does the Civil Rights Movement have to do with health justice? It takes a movement. The myriad strategies of the Civil Rights Movement started the process of dismantling health discrimination. A similar health justice movement, drawing on history, is needed to seek racial equity and overcome discrimination and structural barriers to a more equitable society. The Civil Rights Revolution includes attorneys taking cases to court, judicial decisions, grass roots organizing, legislation by Congress, action by the President, implementation by administrative agencies, and We the People exercising the right to vote.

Thus, civil rights attorneys successfully challenged “separate and unequal” schools for African American and Latino children through the courts. The NAACP Legal Defense & Education Fund, Inc., and League of United Latin American Citizens led this struggle for equal protection through the courts in the decades before and after Brown. The United States Supreme Court abolished the separate but equal doctrine in Brown v Board of Education under the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution in 1954. The Court held in Hernandez v Texas that equal protection applies based on race, color, national origin, ancestry, and descent, also in 1954. Civil Rights are not a black and white issue. The Civil Rights Movement in the streets, organized by Martin Luther King, Jr., the Southern Christian Leadership Conference, Student Nonviolent Coordinating Committee, and others, culminated in the March on Washington for Jobs and Freedom in 1963, and the passage of landmark civil rights legislation. Congress passed the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Fair Housing Act of 1968. President Lyndon Johnson pushed the 1964 Act through Congress through brilliant parliamentary maneuvering, and arm twisting. The 1964 election provided a mandate by the people to support the Civil Rights Revolution.

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Members of NAACP LDF team in Brown v Board

The combined strategies of the Civil Rights Movement have been necessary to seek equal justice in and out of court. For example, ten years after Brown, schools in the South had taken virtually no steps to desegregate. The federal government began using Title VI combined with federal funding for schools to ensure nondiscrimination in 1964. As a result, southern schools became the most integrated in the nation by 1972. Similarly, the federal Hill Burton Act of 1944 provided more than $100 million per year in direct aid to states for discriminatory health services and facilities. A federal court of appeals struck down the “separate but equal” provision in 1963 in Simkins v. Moses H. Cone Memorial Hospital, applying the logic of Brown. The federal government then used Title VI combined with Medicare funding to prevent health discrimination.  As a result, health outcomes improved for both blacks and whites in the South.4

The Civil Rights struggle continues for equal justice, democracy, and human dignity.

13. What can you do? Donate to The City Project to support health justice for all.

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Smithsonian Anacostia Museum Reclaiming the Edge: Urban Waters and Civic Engagement

Resources

1. See, for example, Robert García, The George Butler Lecture: Social Justice and Leisure, 45(1) Journal of Leisure Research 7-22 (Winter 2013), goo.gl/dg2QY; The City Project et. al, Public Comments on Health and Environmental Justice along the Los Angeles River (Nov. 18, 2013), www.cityprojectca.org/blog/archives/23454; Health Justice, www.cityprojectca.org/health-justice; Michael Rodriguez, Daphne Hsu, Marc Brenman, Marianne Engelman Lado, Robert García, Civil Right and Health Inequities (forthcoming 2014).

2. Thomas A. LaVeist, et al., Joint Center for Political and Economic Studies, The Economic Burden of Health Inequalities, at 1 (Sept. 2009).

3. See, for example:

  • Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d; 28 C.F.R. § 42.101 et seq. (U.S. Dept. of Justice regulations); 45 C.F.R. 80 (Health and Human Services regulations).
  • Affordable Care Act, § 1557, 42 U.S.C. § 18116; see also §§ 4001, 4201, 4306.
  • Executive Order 12898, § 1-101 (Feb. 11, 1994).
  • Ca. Govt. Code § 11135; 22 CCR § 98101; Ca. Govt. Code 65040.12(e).

3. A new wave of studies on the Civil Rights Movement is emerging during the 60th anniversary of Brown and the 50th anniversary of the Civil Rights Act. See, for example, Gavin Wright, Sharing the Prize: The Economics of the Civil Rights Revolution in the American South (2013); Bruce Ackerman, The Civil Rights Revolution (2014); Robert Caro, The Years of Lyndon Johnson: The Passage of Power (2012); Clay Risen, The Bill of the Century: The Epic Battle for the Civil Rights Act (2014); Todd S. Purdum, An Idea Whose Time Has Come: Two Presidents, Two Parties, and the Battle for the Civil Rights Act of 1964 (2014). Leading earlier works include, for example, Jack Greenberg, Crusaders in the Courts: How a Dedicated Band of Lawyers Fought for the Civil Rights Revolution (1994); Richard Kluger, Simple Justice: The History of Brown v. Board of Education and Black America’s Struggle for Equality (1975 and 2004); D. B. Smith, Health Care Divided: Race and Healing a Nation (1999); J. Dittmer, The Good Doctors: The Medical Committee for Human Rights and the Struggle for Social Justice in Health Care (2009); ; Taylor Branch, The King Years: Historic Moments in the Civil Rights Movement (2013).