Race as Mission Critical: The Occupational Need Rationale in Military Affirmative Action and Beyond
Leach, Bryan W., The Yale Law Journal
In Grutter v. Bollinger, the much-anticipated case challenging affirmative action practices at the University of Michigan Law School, the Supreme Court held for the first time that "obtaining the educational benefits that flow from a diverse student body" represents a compelling state interest. (1) Adopting much of Justice Powell's analysis from the landmark Bakke case, (2) the Grutter majority emphasized that racial diversity within a student body promotes the '"robust exchange of ideas,"' (3) and renders classroom discussions "'more enlightening and interesting."' (4) The Court further reasoned that universities deserve substantial leeway in making admissions decisions because they are uniquely positioned to assess the pedagogical values associated with racial diversity. (5)
Notably, however, the Court did not confine its analysis of the educational benefits of diversity to matters concerning the quality of the educational experience at the University of Michigan. Rather, it relied heavily on a separate strand of argument that emphasized the need to produce students whose training or experience "'prepares them as professionals'" to function effectively within "'an increasingly diverse workforce."' (6) To underscore this point, the Grutter majority described the American military's reliance on race-conscious recruitment and admissions policies for its service academies and Reserve Officer Training Corps (ROTC) programs. Citing claims raised by a group of retired military personnel in an amicus filing, (7) the Court intimated that the return to a racially homogenous officer corps would compromise the military's ability to provide national security. (8) From here, "'only a small step'" was required for the Court to conclude that the "'country's other most selective institutions'" likewise depend on racially diverse leadership to ensure their continued success. (9) Hence, the majority explained that in the realm of business, "exposure to widely diverse people, cultures, ideas, and viewpoints" cultivates skills necessary to succeed in today's "increasingly global marketplace." (10) Likewise, it described the visible presence of minority lawyers in the upper echelons of politics and the judiciary as crucial to the public's continued confidence in these institutions. (11)
What is striking about these claims is that they regard the project of diversifying higher education as a means of populating the professional ranks with a new generation of racially diverse, or at least racially attuned, leaders. In effect, it is the Court's appeal to these occupational needs for diversity, as opposed to the intrinsic importance of cross-racial understanding, that forms much of the basis for its conclusion that the educational benefits of diversity constitute a compelling state interest. The notion that racially diverse leadership contributes to the functionality of certain professions is not a recent innovation. Rather, such claims have been advanced by numerous industry leaders, (12) sociologists, (13) and historians. (14) In the legal context, occupational need arguments have most often arisen as defenses against allegations of racially biased hiring practices. Accordingly, both Congress and the courts have grappled with the question of how to strike the proper balance between catering to important occupational needs and upholding the law's broader prohibition against racial discrimination. During the legislative debate over Title VII of the Civil Rights Act of 1964, Congress resolved this dilemma by unambiguously rejecting the concept that a person's race could ever constitute a "bona fide occupational qualification" (BFOQ). (15) Underpinning this decision was the overriding fear that employers might otherwise hire only whites, claiming that this was essential to the smooth functioning of their businesses.
In light of this statutory barrier, no court has ever accepted occupational need defenses where racially discriminatory employment practices have been challenged under Title VII. …