April 8, 2021
COVID Vaccine Prioritization and the Perils of Colorblind Constitutional Jurisprudence
Professor, Indiana University Robert H. McKinney School of Law
Visiting Professor, American University Washington College of Law
Nationwide, stark racial disparities exist in COVID-19 infections, hospitalizations, and deaths. Unfortunately, there is evidence of similar disparities now occurring with COVID-19 vaccinations, with Black, Latinx, and Indigenous individuals being vaccinated at lower rates.
Since the early months of the pandemic, healthcare organizations such as the National Academies of Sciences, Engineering, and Medicine (NASEM), Johns Hopkins Bloomberg School of Public Health, and the World Health Organization (WHO) Strategic Advisory Group of Experts (SAGE), worked to avoid vaccine inequities by studying ways that vaccines could be allocated to prioritize the people who are more likely to be severely impacted by COVID-19. For example, the WHO SAGE considered the need to “ensure equity in vaccine access and benefit within countries for groups experiencing greater burdens from the COVID-19 pandemic.” The NASEM Preliminary Framework for Equitable Allocation of COVID-19 Vaccine noted that mitigating health inequities was one of its foundational principles.
The NASEM recommended phases of vaccine prioritization based on age, occupation, and comorbidities and that vaccine access within each phase be “prioritized for geographic areas identified as vulnerable through CDC’s Social Vulnerability Index (SVI).” The SVI uses minority status as one of fifteen social factors in designating geographic areas as vulnerable.
The Centers for Disease Control’s (CDC) Advisory Committee on Immunization Practices (ACIP) considered the NASEM and other frameworks when developing its own vaccine allocation phase. However, ACIP did not include consideration of SVI in its prioritization. Instead, ACIP’s model sets forth a series of phases prioritizing different groups in each phase such as high risk health care workers or those over age 75, but none of these phases specifies race as a factor in prioritization. The CDC framework is not legally binding, however, and states have differed in how closely their vaccination prioritization schemes follow it.
State Vaccine Allocation Plans
Some states, like Maine and Connecticut, have transitioned to purely age based criteria, despite the criticism that this disadvantages racial and ethnic minorities, who have shortened lifespans and disproportionately die younger from COVID-19, are more likely to have comorbid conditions, and whose work or housing conditions may more likely expose them to COVID-19 infection, regardless of age.
States could and should use vulnerability indexes that use geographic areas for vaccine prioritization, but many are not. The NASEM approach is a good example of a model that could achieve greater equity and better control the pandemic. It uses SVI to identify which areas are more vulnerable. The SVI designates a numerical score between 0 and 1 for county or tract level geographic regions, with a score closer to 1 being more vulnerable. This score considers the following social factors: percentages of people below poverty, unemployed, low income, with no high school diploma, aged 65 or older, aged 17 or younger, older than age 5 with a disability, single-parent households, minority status, how many speak English “less than well,” and housing factors such as multi-unit structures, mobile homes, crowding, no vehicle, and group quarters. Although race is considered in the SVI, it is one of fifteen factors considered in the score. NASEM recommended that 10% of each state’s vaccinations should be reserved for the worst SVI quartiles in states and that vaccine delivery to these areas be expedited. Very few states are following the NASEM approach and reserving 10% of its allocation for high SVI areas. Others, like New Hampshire, planned to “withhold 10% of vaccine supply for deployment to populations disproportionately impacted by COVID-19,” and decided to use an alternative index, the COVID-19 Community Vulnerability Index (CCVI), to determine which areas to target. The majority of states are not using vulnerability indexes at all in vaccine prioritization.
Some question whether a state can use race as a factor in vaccine prioritization. Under current constitutional doctrine, states should be allowed to use race as a factor in vaccine prioritization in order to ensure both equity and efficiency in controlling the pandemic.
The Supreme Court has held that government actions classifying based on race must be subject to the most stringent level of judicial review under the Equal Protection Clause, which is known as “strict scrutiny.” Strict scrutiny requires the government to establish that it has a compelling interest in using a racial classification and that its approach is narrowly tailored to meet this compelling goal. The Supreme Court has not considered whether using race as a factor to target health care goods and services would be subject to strict scrutiny.
Affirmative Action in Higher Education and its Application to the Pandemic
A context that may be analogous with the use of race in vaccine allocation programs is that of affirmative action programs. For a time, it was unclear what level of scrutiny would apply to affirmative action programs that aim to address systemic racism and affirmatively aid racial minorities. Liberal justices like Thurgood Marshall asserted that affirmative action programs should receive a less rigid form of judicial scrutiny since their purpose is not to further racial injustice but to combat the long history of race discrimination in the United States. As Justice Marshall eloquently argued: “For it must be remembered that, during most of the past 200 years, the Constitution as interpreted by this Court did not prohibit the most ingenious and pervasive forms of discrimination against the Negro. Now, when a state acts to remedy the effects of that legacy of discrimination, I cannot believe that this same Constitution stands as a barrier.” The same logic that Justice Marshall applied in the context of affirmative action could be applied to the case of vaccine allocation, given the long history of race discrimination in health care in the United States.
However, as the composition of the Court shifted rightward, the Supreme Court ultimately held that strict scrutiny must be used not only for government actions that subordinate racial minorities, but also for government programs that seek to end racial subordination through affirmative action. Strict scrutiny has been famously described as “strict in theory and fatal in fact” since the government often fails to meet this standard. However, in the context of affirmative action the government’s use of race has survived strict scrutiny.
The Supreme Court has addressed the use of affirmative action in higher education on numerous occasions. Most recently, in Fisher v. University of Texas (Fisher II), the Court narrowly upheld affirmative action programs at public universities. In a 4-3 decision, Justice Kennedy wrote that diversity in education serves a compelling government interest, but affirmative action programs must meet stringent standards to be sufficiently narrowly tailored. The government must produce evidence that affirmative action is necessary to achieve its compelling goal and may only use race as one factor among others. Furthermore, Justice Kennedy demanded that universities show that they have considered race-neutral alternatives and found them insufficient.
The Supreme Court has not yet addressed government use of racial classifications to ameliorate systemic health disparities. In the public health context, state governments have a compelling interest in controlling the pandemic by contending with racial disparities in infection rates, serious illness, and death caused by COVID-19. Effectively controlling the pandemic by ensuring that racial and ethnic minorities are able to access COVID-19 vaccines is clearly a compelling government interest, even more compelling in the context of vaccines than in higher education, considering the way that COVID-19 has disproportionately impacted Black, Latinx, and Indigenous populations in the United States. Under the strict scrutiny test, even if the government has a compelling interest in using racial classifications, the use must be narrowly tailored to achieve the government’s purpose and there must be proof that attempts to use race-neutral means have failed to achieve the state’s compelling goals. Initial statistics about the vaccine rollout suggest that more targeted efforts are necessary to vaccinate more racial minorities and thereby control the pandemic more quickly and effectively given the higher rates of infection in racial minority populations. There is compelling data showing that across the United States, Black, Latinx, and Native American people are receiving smaller shares of vaccinations compared to their shares of COVID-19 cases and deaths and compared to their shares of the total population. We are in an emergency situation with over half a million COVID-19 deaths. There is a pressing need for states to move fast with vaccinating those most vulnerable in order to control this global pandemic.
Some states are using race as one of the factors in vaccine prioritization. Vermont recently opened up vaccinations to all people over sixteen years of age who live in households that include any Black, Indigenous, or people of color (BIPOC), two weeks before they were offered up to the general population. The Vermont Department of Health vaccination website emphasizes the need to focus on BIPOC due to increased risk of COVID-19 hospitalizations and death and “historical harms and the resulting mistrust of health care and public health.”
Similarly, in Missouri, “populations at increased risk of acquiring or transmitting COVID-19, with emphasis on racial/ethnic minorities” are prioritized in Phase 2 of the vaccine rollout. Some states like Montana and Utah are prioritizing racial and ethnic groups who may be at an elevated risk of COVID-19 complications in Phase 1B and Phase 1C respectively.
As more dangerous variants spread across the globe, targeted approaches using race as one factor would be wise. Initial data suggests that race-neutral state prioritization policies are not working sufficiently to ensure that groups more vulnerable to COVID-19 are vaccinated at adequate rates. More equitable vaccination of COVID-19 vulnerable populations will better protect the entire population from the continued spread of the virus and more effectively control the pandemic.
School Integration and Race-Neutral Means Towards Racial Equity—An Alternative Approach to Vaccine Prioritization
If the federal courts cabin Fisher II to its context of higher education, another possibility would be to apply Supreme Court precedent on government efforts at racial integration in elementary and secondary education. In Parents Involved in Community Schools v. Seattle School District No. 1, the Supreme Court struck down the use of racial classifications to allocate slots in public schools. In a fractured decision, Justice Kennedy wrote the controlling concurring opinion setting forth the constitutional limits for achieving racial integration in the context of K-12 public education. Justice Kennedy emphasized that diversity in public education is a compelling governmental goal. However, Justice Kennedy concluded that using individual student race for school assignment decisions did not satisfy the narrow tailoring prong of strict scrutiny. Instead, Justice Kennedy wrote that school boards must use facially race-neutral means to achieve the race-conscious goal of school integration, such as by using neighborhood demographic information. Notably, even in the K-12 educational context, Justice Kennedy would permit consideration of race as a factor but only “if necessary” and if school boards adopted “a more nuanced, individual evaluation of school needs and student characteristics that might include race as a component.”
As noted above, the government has a compelling interest in controlling the pandemic by ameliorating the racially disparate impact of COVID-19. Under the Parents Involved approach, states could adopt facially race-neutral means to achieve racial equity in the fight against the pandemic. One way that states could proceed is to use indexes such as SVIs or CCVIs. Some scholars have suggested that measures such as the SVI would pass constitutional muster under the Parents Involved framework. SVI and similar indexes target geographic areas, not individuals. This makes the use of race in SVI fundamentally different than in school admissions cases, where the admissions committee considers the applicant's individual race and where a white applicant cannot say that they are a member of a minority group. In the SVI geographic areas, people of any race may live in or may move in or out of such areas. In this way, vulnerability indexes like SVI are race neutral on their face. Justice Kennedy alluded to such an approach in his concurrence in Parents Involved, where he suggested that school districts could take into account the racial composition of communities rather than an individual’s race.
Using vulnerability indexes such as SVI may also be analogized to the consideration of race in drawing electoral districts. The Supreme Court has held that an electoral district may be struck down as a racial gerrymander if it is drawn using race as a predominant factor. If, however, race is merely one factor among others in drawing electoral lines, strict scrutiny would not apply. Similarly, in calculating SVI, race is not the predominant factor in designating which geographic areas are more vulnerable.
Another alternative measure for vaccine prioritization others have suggested is the Area Deprivation Index (ADI), which measures income, education, employment, and housing quality at the block level. ADI is similar to the SVI, but does not include race at all in its measures. Some areas, like DC, are targeting certain zip codes with more low-income and underserved people. Residents of these areas have earlier access to vaccination appointments than non-residents. New York and California tried similar approaches, but in some cases, people from those zip codes were not the ones who were able to get vaccinated. Thus, race-neutral means do not always effectively achieve racial equity.
Constitutional “Colorblindness” Will Worsen Health Disparities Exposed by COVID-19
Finally, given the changes in the composition of the Supreme Court since Justice Kennedy’s retirement, the Court could reverse or limit both Fisher II and Parents Involved and adopt a stringently “colorblind” approach to the Equal Protection Clause. In his plurality opinion in Parents Involved, Chief Justice Roberts proposed a false equivalence between government efforts at racial segregation and government efforts at racial integration, infamously declaring: “The way to stop race discrimination on the basis of race is to stop discriminating based on race.” In reality, the myth of a colorblind constitution is intentionally blind to racial inequality on the ground and undermines efforts to rectify systemic racism.
The majority of states are adopting “colorblind” efforts to vaccinate the public, and the resulting racial disparities are apparent. For example, age based approaches harm African Americans, whose average age is younger than white people in the United States and who have a lower life expectancy than other races in the United States. The groups that were prioritized in the initial phases of the vaccine rollout were overwhelmingly white. Arguments that we must choose efficiency over equity create a false dichotomy. Rather, targeting higher risk populations for vaccination will ensure a more effective reduction in community spread of COVID-19 for everyone, as well as ensuring that the impacts of this pandemic do not last for generations. A constitutional doctrine that asks us to bury our heads in the sand and ignore the way the pandemic is disproportionately impacting Black, Latinx and Indigenous populations is dangerous and unwise.