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Posted by Lea Bishop on Monday, April 05 @ 16:30:13 EDT
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Bryan W. Leach, Race as Mission Critical: The Occupational Need Rationale in Military Affirmative Action and Beyond, 113 YALE L.J. 1093 (2004).
This student Note begins by critiquing the Supreme Court’s discussion of occupational need in Grutter; instead of the all-or-nothing approaches offered by both the majority and dissent, this Note argues that a more sophisticated framework is needed 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.” The author begins to develop such a framework by taking the military experience with affirmative action as a template. The Note ultimately proposes that the statutory barrier against race-based “bona fide occupational qualification” be removed, and that courts accept occupational need defenses “only in those narrow circumstances where a profession establishes that racial discrimination is vital to the essence of its business,” and by state actors where the defendant can demonstrate that this disruption of its business would compromise public safety.
(Abstract prepared by Lea Bishop.)
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