Race as mission critical: the occupational need rationale in military affirmative action and beyond.

• Author: Leach, Bryan W.

INTRODUCTION

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. (16) Paradoxically, however, where such practices have instead been challenged on Fourteenth Amendment grounds, courts have increasingly allowed a small number of professions--such as law enforcement and prison administration--to raise valid occupational need defenses. (17) On these occasions, judges have distinguished between employers merely catering to client preferences and those whose race-conscious decisionmaking reflects a genuine concern about the functionality of their profession.

As a result of these developments, the statutory and constitutional frameworks governing racial discrimination now provide contradictory responses to occupational need defenses raised by certain professions. This inconsistency was prominently on display in the recent case of Patrolmen's Benevolent Ass'n v. City of New York, in which Judge Scheindlin found that racially motivated employment decisions furthered the state's compelling interest in effective law enforcement---thereby satisfying the first prong of the court's equal protection analysis--yet held that the police were nonetheless barred from mounting an occupational need defense under Title VII. (18)

Against this backdrop, the Grutter Court further expanded the boundaries of the constitutional occupational need defense in two important respects. First, it suggested that a profession's reliance on racially diverse representation may warrant use of race-conscious admissions procedures at the stage of professional education. Logically, those professions citing an occupational interest in the continued use of affirmative action at universities should be doubly justified in granting preferences to racial minorities who have actually graduated and entered the labor market. Rather than consider the tensions that this reasoning would generate with current Title VII law, however, the Court simply reiterated that its holding reaches only educational--rather than hiring--decisions. Second, the Grutter Court identified occupational needs for diversity in fields such as business and law, which differ substantially from the more public-safety-oriented occupations that have successfully raised occupational need defenses in the past. By grouping together professions such as business and law with the military, whose unique features have entitled it to a special exemption under Title VII, (19) the Court proceeded on the questionable assumption that these professions are equally dependent on racially diverse leadership.

These problematic implications of the Grutter Court's approach were not lost on the dissenting Justices, who warned that occupational need logic could not be easily cabined within formal educational settings or confined to the field of law. Instead, as Justice Scalia lamented, the Court's reasoning might be used to support discriminatory hiring on the ground that it injects minority representation into a profession solely to enhance the "'cross-racial understanding'" of nonminority coworkers. (20) Wary of the potential for occupational need defenses to shield discriminatory practices across a limitless array of professions, the dissenting Justices in Grutter sided with the framers of Title VII by resisting such arguments altogether.

For all its intellectual clarity, however, the Grutter dissent's categorical rejection of occupational need claims proved no more nuanced than the majority opinion. Justice Scalia's scathing critique of the Court's logic, while useful in highlighting the extremes to which occupational need arguments may be taken, recognized no contexts in which such claims could be appropriate. Conspicuously absent from his dissent was any mention of the military's distinctive justification for affirmative action. (21) Likewise, no consideration was given to other professions that might raise compelling arguments along similar lines.

Taken as a whole, the Supreme Court's discussion of occupational need in Grutter proved unsatisfactory in two respects, both of which this Note addresses. First, both the majority and the dissent adopted a polarized, all-or-nothing approach to occupational need defenses instead of acknowledging the possibility that such arguments may be persuasive in certain contexts while pernicious in others. As an alternative to the Court's stark approach, what is needed is a theoretical framework for determining when occupational need arguments should be accepted as compelling state interests and when they should be rejected as pretextual grounds for racial discrimination.

This Note begins to develop such a framework through the case study of the military, the profession that has most often framed its defense of affirmative action in terms of occupational need. Once the link between racial awareness and occupational performance is more precisely understood, we may then consider what institutional features make the military particularly dependent on racial diversity. To the extent that similar features exist in other contexts, the military experience should be seen as translatable, rather than entirely exceptional.

Rather than draw an arbitrary line between higher education and work settings, this Note proposes that occupational need arguments should be evaluated according to the characteristics of each profession. Taking into account the social urgency of a profession as well as the degree to which its basic functionality depends on race-conscious decisionmaking, I argue that occupational need defenses should generally be limited to a small subset of professions that address public safety matters rather than extended to encompass professions such as business and law. (22) While the appropriate outer bounds of the occupational need defense will undoubtedly remain subject to disagreement, the Grutter Court's treatment of occupational need claims clearly overlooks crucial differences in the nature and degree to which various professions rely on racially...