Public Health,Racism,and the Lasting Impact of Hospital Segregation

In recent years, a growing number of calls have been made to explicitly name and treat racism as a determinant of health. ¹ Mounting evidence supports the notion that racism affects health through complex psychosocial, biobehavioral, and structural pathways. ^2,3 Health disparities are increasingly recognized as byproducts of racism. ⁴ Acknowledging historical injustices—in particular, how racism operates at the individual, interpersonal, and institutional levels to affect health—and appreciating the historical roots of contemporary disparities is a necessary (although not sufficient) step toward achieving health equity. As part of ongoing efforts to address pervasive racial disparities in health, it is essential that public health researchers, practitioners, and others bear in mind the civil rights story of the health care system.

As late as the mid-1960s, open segregation infected all organs of the US health care system. ^{5 -8} Hospital segregation—widespread nationally—was, in many places, legally sanctioned. John Kenny Jr, president of the National Medical Association (NMA), the nation’s oldest and largest organization of black physicians, from 1962 to 1963, explained, “The colored doctor is…denied participation in hospital staff membership [and]…the Negro patient is discriminated against both in seeking hospital admission, and once he gets in, in where he is placed in the hospital.” ⁶ Racial discrimination in medical services and facilities was understood to be “one of the prime reasons why Negro infant mortality is from two to five times greater than white infant mortality; why white women are five times less likely to die in childbirth than Negro women; and why Negro life expectancy is almost seven years less than white life expectancy.” ⁷

Litigation was a key element of civil rights era efforts to end segregation. The case of Simkins v Moses H. Cone Memorial Hospital, initially understood by lawyers and physicians alike as an important but limited strike against hospital segregation, ultimately proved to be a watershed moment in the quest for integration. In this installment of Public Health Chronicles, I describe Simkins, highlight its limitations as a legal document, and acknowledge its historical importance in paving the way for sweeping legislative and regulatory changes. Although less well known than Brown v Board of Education of Topeka, Simkins should be equally celebrated for its dramatic effect on the health care landscape in the United States.

Hospital Segregation

The Hospital Survey and Construction Act of 1946, ⁸ commonly known as the Hill-Burton Act, “launched the Nation on the most comprehensive hospital and public health construction program ever undertaken.” ⁹ Hill-Burton was Congress’s response to a shortage and misdistribution of hospitals and other health care facilities in the wake of the Great Depression and World War II. ¹⁰ The Act, which established a federal-state partnership, authorized millions of dollars in federal grants to states for hospital construction. ¹¹ In congressional debates, Northerners—particularly Senators William Langer (R-ND) and Harold Burton (R-OH)—called for nondiscrimination in the use of federal funds, whereas Southerners, such as Senator Lister Hill (D-AL), argued for the right of state legislatures and local hospital authorities to set policy without federal interference. Ultimately, out of deference to Southern custom, the Hill-Burton Act contained a separate-but-equal provision, which stated that discrimination on the basis of race was acceptable if there was “equitable provision on the basis of need for facilities and services of like quality for each such group.” ¹² It is notable that this separate-but-equal provision was the only one in federal legislation of the 20th century that explicitly permitted the use of federal funds to provide racially exclusionary services. ¹³ The Hill-Burton program practically rebuilt the nation’s hospital system. ¹⁰ The South “received a good slice of the $1 600 000 000 melon which the Federal government provided,” ¹⁴ and black people’s access to hospital care improved. ¹⁵

The black community—long engaged in a dialectic between separatism and integrationism—reflected a broad range of opinions on hospital care. ^16,17 Against this backdrop, responses to Hill-Burton within the black community were predictably varied. Debates arose, for example, around whether to apply for Hill-Burton assistance for segregated facilities. ¹⁸ Some members of the community viewed the funds as a means to obtain vital improvements in health care and were unwilling to sacrifice black health while fighting for equality, whereas others opposed use of the funds as an accommodation to segregation. ¹⁵ Some black physicians had been “so successful within the confines of the segregated system” that they had little incentive to challenge the segregated status quo, ¹⁹ but many others, particularly members of the NMA, viewed the Hill-Burton Act with disdain. ¹⁴

More than a decade after the Hill-Burton Act became law, the first annual Imhotep Conference on Hospital Integration was held in Washington, DC. ²⁰ The 1957 conference was cosponsored by the NMA, the Medico-Chirurgical Society of the District of Columbia, and the National Association for the Advancement of Colored People (NAACP). ¹⁰ By the time the sixth meeting convened in 1962, the time was seen as “ripe for a successful all-out attack” on discrimination in hospital practices in the United States. ²⁰ One reason for optimism was the Kennedy Administration’s commitment to civil rights. In fact, conference attendees would receive a letter from the president advising them that the US Attorney General had intervened in a federal court case to support the argument that Hill-Burton’s segregation clause was unconstitutional. That case was Simkins v Moses H. Cone Memorial Hospital. ²¹

Simkins was hardly the first time that physicians had looked to the courts to address hospital segregation. Previous efforts had, however, been unsuccessful. In 1958, in Eaton v Board of Managers of the James A. Walker Memorial Hospital (Eaton I), 3 physicians had argued that it was an act of discrimination to deny “Negro physicians…courtesy staff privileges at the James Walker Memorial Hospital…solely on account of their race or color.” ²² The Court of Appeals for the Fourth Circuit decided against the physicians, concluding that the hospital—which had not participated in the Hill-Burton program—was a private corporation and, therefore, that complaints of discrimination were not cognizable in federal court.

Simkins v. Moses H. Cone Memorial Hospital

Shortly after Eaton I, Jack Greenberg, director-counsel of the NAACP Legal Defense Fund, received a telephone call from Dr George Simkins, whom he knew from Simkins’s past efforts to integrate Greensboro’s Gillespie Park Golf Course. ²³ Simkins, a dentist and president of the Greensboro, North Carolina, NAACP chapter, had seen a patient with an abscessed third molar, swollen jaw, and fever and determined that the young man needed to be hospitalized. ¹³ He had called L. Richardson Memorial Hospital, Greensboro’s 91-bed black hospital, and been advised of a 2- or 3-week waiting list to get a bed. Simkins then called both the Wesley Long Community Hospital, a 78-bed hospital that had never admitted a black patient nor accepted a black physician for staff privileges, and the Moses H. Cone Memorial Hospital, a 300-bed hospital that admitted black patients for special procedures but refused staff privileges to black physicians and dentists. ²⁴ Although Wesley Long and Moses H. Cone had rooms, neither would admit Simkins’s patient. That prompted Simkins to call Greenberg. Simkins later recalled, “I said, ‘We got to really do something about these hospitals down here. It’s a disgrace, a person could be dying.’” ¹³

On Greenberg’s recommendation, Simkins wrote to the administrators at both Moses H. Cone and Wesley Long to request an application for admitting privileges. ²⁵ He received an application from Moses H. Cone that he filled out but that was subsequently denied. He never received an application from Wesley Long. Simkins also assembled other plaintiffs in the case: 6 black physicians and 3 black dentists—all of whom also requested applications for staff privileges and were turned down—and 2 black patients who were in need of medical treatment and contended that Moses H. Cone and Wesley Long possessed “the most complete medical equipment and the best facilities available in the Greensboro area.” ²¹ Finally, Simkins wrote to Arthur S. Fleming, secretary of the Department of Health, Education and Welfare (DHEW)—the precursor to the US Department of Health and Human Services—to complain that both Moses H. Cone and Wesley Long discriminated against black physicians, dentists, and patients and had used Hill-Burton money. Greenberg now had a case of racial discrimination in hospitals that—unlike in Eaton I—had used Hill-Burton funds.

Simkins set the stage for a conflict between 2 lines of legal authority: (1) a series of state law cases that established that private hospitals, as a matter of state law, had complete discretion to determine who could use their facilities and (2) the federal constitutional concept of “state action.” ²⁶ Under constitutional law, racial discrimination by private entities—however wrongful—does not rise to the level of constitutional violation. Discriminatory private conduct only becomes a constitutional violation if it is imbued with “state action”—that is, if the state is found to be directly and substantially involved. Therefore, courts typically treat “state action” as a threshold issue: before reaching the merits of a claim that a defendant has violated an individual’s constitutional rights, a court will examine the relationship between the government and the defendant’s conduct. There is no definitive test for state action; rather, the court must sift through the facts and weigh the circumstances to reach a judgment about the nature and extent of the state’s involvement. ¹¹ State action will be found if the state has made itself a joint participant in the challenged activity—for example, through management or funds—such that the activity can no longer be fairly considered “purely private.”

Moses H. Cone and Wesley Long were private hospitals. Therefore, in Simkins, the Legal Defense Fund built the case of state action on the facts that both hospitals were licensed by the state, had tax-exempt status, and had received Hill-Burton funds—paid by the United States to the State of North Carolina and, in turn, by North Carolina to the hospitals—to expand their facilities. The Legal Defense Fund lawyers contended that the 2 hospitals were sufficiently imbued with state action to bring them within the prohibitions against racial discrimination under the Fifth Amendment (applying to the federal government) and Fourteenth Amendment (applying to the states) and that the portion of the Hill-Burton Act allowing for separate-but-equal hospital facilities was unconstitutional. ²¹

The Legal Defense Fund filed its “historic suit against hospital exclusion” ²⁷ in the US District Court for the Middle District of North Carolina on February 12, 1962, in honor of Abraham Lincoln’s birthday. ¹¹ Greenberg was quoted on the front page of The New York Times that day expressing his “hope that this suit and others like it would result in the integration of health services throughout the South.” ²⁸

As required by law, the Legal Defense Fund’s lawyers notified the US Department of Justice that they were challenging the constitutionality of a federal statute. To their surprise, Assistant Attorney General Burke Marshall submitted a brief in support of the black plaintiffs. ^11,21 Marshall’s long brief traced court rulings from Plessy v Ferguson, ²⁹ which upheld the constitutionality of racial segregation laws as long as the facilities were separate but equal, to Brown v Board of Education, ³⁰ which held that separate educational facilities for black and white people were inherently unequal, and linked those rulings to the case before the District Court. The federal government argued that the use of federal funds in a discriminatory manner was unconstitutional and that the black clinicians and patients should be granted the privileges and services they sought. In objecting to the Department of Justice’s motion to intervene, the hospital attorneys complained that they had been unable to find any previous case in which the Attorney General of the United States intervened so as to attack the constitutionality of an act of Congress. ¹³

Despite the Department of Justice’s unprecedented intervention, the District Court’s Chief Judge, Edwin M. Stanley, ruled in favor of the defendant hospitals. ³¹ In his opinion, Chief Judge Stanley wrote, “It has been clearly established that both defendant hospitals are pursuing racially discriminatory practices by barring Negro physicians and dentists from admission to their staff privileges, and by barring Negro patients from admission to their treatment facilities on the same terms and conditions as white patients.” Nevertheless, the court concluded as a matter of law that the “various contacts the defendant hospitals have been shown to have with the governmental agencies, both federal and state, do not make them instrumentalities of the government in the constitutional sense, or subject them to either the Fifth Amendment or the Fourteenth Amendment of the United Sates Constitution.” In short, Chief Judge Stanley found clear evidence of racial discrimination but not the state action necessary to bring that discrimination within the ambit of the constitution.

Greenberg filed an appeal and argued the case before the Fourth Circuit Court of Appeals—in a building that once housed the Confederate Treasury and the offices of confederate President Jefferson Davis—on April 1, 1963. ³² On November 1, 1963, the Fourth Circuit ruled in favor of the plaintiffs. ²¹ Chief Circuit Judge Simon E. Sobeloff, writing for the majority, stated that “viewed from the plaintiffs’ standpoint [this case] is an effort by a group of citizens to escape the consequences of discrimination in a concern touching health and life itself.” The majority held first that “the appropriation of millions of dollars of public monies pursuant to comprehensive governmental plans” made the hospitals subject to constitutional restraints against racial discrimination and, second, that the separate-but-equal provision of the Hill-Burton Act and the regulations promulgated thereunder were unconstitutional. The latter holding, although more dramatic, was ultimately less important, because it applied only to future federal expenditures under the Hill-Burton Act. The first holding, by contrast, laid “the doctrinal underpinnings for an exercise of judicial control over internal hospital affairs far more sweeping than any previously attempted.” ³³

The defendant hospitals appealed to the US Supreme Court. But on March 2, 1964, more than 2 years after the case was first filed in federal district court, the Supreme Court declined to hear the case. ³⁴ As a result, the decision of the Fourth Circuit Court of Appeals stood as final.

Simkins—Cousin to Brown

The Fourth Circuit’s decision in Simkins elated the Legal Defense Fund, which characterized it as an “entering wedge for Negro physicians into mainstream medical practice in the South.” ¹³ Two months after the Fourth Circuit issued its opinion in Simkins, it revisited Eaton, the discrimination case against James Walker Memorial Hospital. ³⁵ The 3-judge panel in Eaton II unanimously concluded that the “record in its entirety” supported a finding of state action and, therefore, that James Walker Memorial Hospital was bound to refrain from discrimination in staff membership and access to treatment facilities. ³⁶ Although 2 of the Fourth Circuit judges voiced “lingering doubt as to the correctness” of the decision in Simkins, they accepted it as precedent and binding upon them. Thus, Simkins had proven its value as a template for moving forward within the federal courts. The “epochal federal court decision against hospital discrimination” in Eaton II was excerpted at length in the pages of the Journal of the National Medical Association and characterized as “even more sweeping” than the decision in Simkins. ³⁷

Greenberg—like others—compared Simkins favorably to Brown v Board of Education: “In principle [Simkins] was as far reaching in the medical field as the 1954 school desegregation [decision] was in its field.” ¹³ The comparison of Simkins to Brown was apt insofar as it both highlighted Simkins’s importance and underscored its limitations. The decision in Simkins reflected and substantially advanced a growing consensus that official doctrines of racial inferiority had no place in the United States. It imparted new energy to the civil rights movement. Yet it wrought little tangible or immediate change.

In Brown, the Supreme Court had declared school segregation wrong but left it to Southerners themselves to figure out how to eradicate it. ³⁸ This necessitated ongoing litigation when schools refused to comply with the law. A limitation of Simkins, brought into relief by the comparison to Brown, was that hospital desegregation would still have to be fought out case by case as thousands of hospitals were brought into compliance with the legal decision. ⁶ The rights at the heart of the case were not self-executing, meaning that their vindication depended on lawsuits brought by victims of discrimination. Therefore, on the heels of Simkins, Constance Baker Motley of the Legal Defense Fund warned members of the NMA that it was “clearly the responsibility of the Negro doctor and dentist in this country to lead the fight for desegregation of health and hospital facilities” or be “in danger of tokenism as the successor to ‘separate but equal’ [if]…the Negro community [failed] to continue to press for full implementation of desegregation decisions.” ⁷ Yet the resources that could be mustered to resist integration far surpassed those of the civil rights organizations to insist. Further, as the school segregation cases revealed, the complex processes of the courts were well-suited to years of delay and evasion. ³⁹ Finally, Simkins was directed at a situation where the intent to discriminate was unmistakable; civil rights advocates justifiably feared that courts would have “substantially greater problems in deciding cases in which a differentiation [on the basis of race was] defended on the ground that it is medically necessary.” ³³

In light of these limitations, even as people praised the decision in Simkins, calls were made for new legislation and executive action to address its acknowledged defects and achieve a broader impact. As shown in the next section, those calls “succeeded beyond the expectations of all but the most optimistic.” ¹¹

Legislation and Executive Action

In March 1964, several months before Simkins would be named “Dentist of the Year” by the Old North State Dental Society ⁴⁰ but after the Supreme Court had denied cert in Simkins, DHEW Secretary Anthony Celebrezze called for new regulations for the Hill-Burton program consistent with “the intent of the law.” ^41,42 The revised regulations, citing Simkins, were published in the Federal Register on May 19, 1964, an event that was touted in the Journal of the National Medical Association’s “Integration Battlefront” section. ⁴³ The revisions addressed discrimination against both patients and providers. First, they provided that, before a hospital construction application would be approved, it must be assured that “all portions and services of the entire facility…will be made available without discrimination on account of race, creed, or color.” ⁴⁴ In addition, the regulations required that no “professionally qualified person will be discriminated against on account of race, creed, or color with respect to the privilege of professional practice.” The effect of the regulations was that new applications for federal funds would not be approved except on a nondiscriminatory basis. In the case of existing Hill-Burton hospitals, however, desegregation could be accomplished only by voluntary change in operating policies or subsequent approval of applications for additional Hill-Burton funds. Thus, segregation persisted.

Then, the bill proposing Title VI of the 1964 Civil Rights Act ⁴⁵ came before the Senate for full debate. Title VI protects people from discrimination based on race, color, and national origin in programs and activities receiving federal financial assistance. The record of the floor debate reveals that proponents of Title VI repeatedly cited to and quoted from Simkins as they sought the bill’s passage. Senators regarded the Supreme Court’s decision not to hear Simkins “as a clear signal that the Court had concluded that the ‘separate but equal’ doctrine, as applied to hospitals, violated the Equal Protection Clause.” ⁴⁶ Title VI’s supporters used Simkins to illustrate judicial support for the proposition that federal funding of any program that provides separate or unequal services to black people is unconstitutional. ⁴⁷ More broadly, the decision was seen as validation of the antidiscrimination goals set out in Title VI. ⁴⁸ Senator John Pastore of Rhode Island declared, “Title VI intends to insure once and for all that the financial resources of the Federal Government—the commonwealth of Negro and white alike—will no longer subsidize racial discrimination.” ⁴⁹

The final Imhotep National Conference on Hospital Integration was held on July 27, 1964, after passage of the 1964 Civil Rights Act. This time, the conference was hosted by DHEW and the White House. Secretary Celebrezze thanked the group for coming to discuss ways to eliminate racial discrimination in hospitals and stated that it “is a job that must be done, a job that we in the Government cannot do alone, and a job for which I hope you will let us have your help.” ¹³

Responsibility for seeing that the nondiscrimination required by Title VI was achieved fell to DHEW. Yet “the general tendency of HEW officials [was] to accept assurances of compliance [with Title VI] even if they had reason to doubt the assurances reflected reality.” ⁵⁰ DHEW staff members hoped to persuade hospitals that it was in their best interest to comply rather than to obtain compliance by cutting off funds. In summer 1965, staff members of the US Commission on Civil Rights visited 39 hospitals to determine the effect of the Civil Rights Act and regulations on segregation of patients in hospitals. ⁵¹ Only 13 of the 39 hospitals were found to have achieved any substantial degree of desegregation. In all but a few cases, segregated wings or floors had been eliminated, but integration of patients within wards was infrequent, and biracial assignments to 2-bed rooms were viewed as “the most difficult step.” This reality brought DHEW “into collision” with the NAACP and other civil rights groups that “believe[d] HEW [was] neither swift nor forceful in its handling of Title VI cases” and so brought hundreds of complaints. ⁵⁰ DHEW staff members conceded the legitimacy of the complaints, observing that—but for a handful—the hospitals in question were partially or totally segregated. Once again, civil rights leaders warned against token improvements and pushed for change.

Change followed swiftly, although by a different means. On July 30, 1965, President Johnson signed Medicare, the federally funded system of health and hospital insurance for Americans aged 65 and older, into law. ⁵² The establishment of Medicare dramatically raised the cost to hospitals of resisting integration. With one stroke of the president’s pen, more than 7000 hospitals were subject to the civil rights regulations set forth in Title VI. ⁸ Because these hospitals desired Medicare dollars, they desegregated; long-term defiance of the law was simply not an option. ^53,54 It has been observed that few other efforts to eliminate racial segregation in the United States moved as smoothly or as quickly. The desegregation of hospitals under Medicare provides a positive example of what can be accomplished when affirmative compliance techniques are used and there is real enthusiasm to enforce the law. Writing in 1968, Robert Nash, director of the Office of Equal Health Opportunity in the US Public Health Service and the man who had been tasked with investigating hospital compliance, described the desegregation of hospitals as “a quiet revolution.” ⁵⁵ Yet, he contended, it was a real revolution, because “deep and significant change” altered the way hospital care was delivered to millions of black people.

Conclusion

Discrimination in medical facilities, one of the most pernicious features of health care during the Jim Crow era, had garnered little public attention and generated only a small volume of litigation before Simkins. This landmark case paved the way for revolutionary changes and is therefore best appreciated as prologue rather than as denouement. In 2016, Cone Health apologized to Dr Alvin Blount, the last living plaintiff involved in Simkins. ⁵⁶ Today, it is essential to recognize the role of hospital segregation in shaping current racial differences in health but also of hospital integration in narrowing gaps. ⁵⁷ Unfortunately, other forms of segregation in health care persist, as do health disparities and inequalities. People of color are more likely than white people to be uninsured, to encounter barriers when accessing care, to receive lower-quality care, and to have poorer health outcomes. ⁵⁸ One responsibility of public health is to foster policies that promote health, and one lesson of our history is that countering discrimination and racism should be a public health priority.