# Lutheran Church-Missouri Synod v. Federal Communications Commission

> Court of Appeals for the D.C. Circuit · September 15, 1998 · 154 F.3d 487

URL: https://www.frixlaw.com/law-library/cases/184646

## Case

- **Full name:** LUTHERAN CHURCH-MISSOURI SYNOD, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Missouri State Conference of Branches of the NAACP, Et Al., Intervenors
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** September 15, 1998
- **Citations:** 154 F.3d 487; 332 U.S. App. D.C. 165; 74 Empl. Prac. Dec. (CCH) 45,484; 77 Fair Empl. Prac. Cas. (BNA) 1865; 1998 U.S. App. LEXIS 22595
- **Precedential status:** Published
- **Opinion:** Opinion by Silberman
- **Judges:** Silberman, Williams, Sentelle
- **Cited by:** 15 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/184646

## How later opinions describe it (automated extraction)

- rejecting argument that “a regulation constitutes a racial classification only if it requires or obliges someone to exercise a racial preference”

## Opinion text

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

---------

Filed September 15, 1998

No. 97-1116

Lutheran Church-Missouri Synod,

Appellant

v.

Federal Communications Commission,

Appellee

Missouri State Conference of Branches

of the NAACP, et al.,

Intervenors

---------

On Petition for Rehearing

---------

Before: Silberman, Williams, and Sentelle, Circuit
Judges.

Opinion for the Court filed by Circuit Judge Silberman.

Silberman, Circuit Judge: The Federal Communications
Commission (FCC) and the government have filed a joint
petition for rehearing. Before the panel the government

appeared only as an amicus (with a somewhat different
position than the Commission). We do not, therefore, think
the government can be regarded as a party, so we treat the
petition as that of the Commission. The Commission offers
three arguments to support its contention that our opinion
unnecessarily and erroneously decided the Church's equal
protection claim: that we should have granted its motion to
remand without deciding the case; that if we had proceeded
we were obliged to decide the Religious Freedom Restoration
Act (RFRA) or free exercise claim before reaching the
Church's equal protection argument; and, finally, that we
should not have applied strict scrutiny as the standard by
which the Commission's Equal Employment Opportunity
(EEO) rules should be judged under the Equal Protection
Clause. We take up the arguments in that order.

1. The Remand Issue

We denied the FCC's motion to remand, presented seven
weeks after oral argument. Lutheran Church-Missouri
Synod v. FCC, 141 F.3d 344, 349 (D.C. Cir. 1998). The
motion was based on a "policy statement" in which the
Commission purported to overrule its prior King's Garden
decision. See Streamlining Broadcast EEO Rule and Poli-
cies, 13 F.C.C.R. 6322, 6323-24 (1998). That decision, it will
be recalled, permitted religious broadcasters to prefer em-
ployees of that religion only if the employees were involved
directly in broadcasting. See King's Garden, Inc., 38
F.C.C.2d 339 (1972), aff'd sub. nom. King's Garden, Inc. v.
FCC, 498 F.2d 51 (D.C. Cir. 1974).

The Church had attacked King's Garden as inconsistent
with both RFRA and the Free Exercise Clause, and the
Commission's counsel claimed that the majority of Commis-
sioners had agreed to apply that policy statement to this case
retroactively if we would remand. We rejected this "last
second" motion in part on grounds that a "policy statement,"
as Commissioner Furchtgott-Roth pointed out, does not bind
the Commission to a result in any particular case. See
Pacific Gas & Elec. Co. v. FPC, 506 F.2d 33, 38 (D.C. Cir.
1974). The Commission insists we misunderstood its action;
the policy statement was not "merely " a policy statement, it
was also an order that grew out of a rulemaking that did bind

the Commission. We confess that we simply have no idea as
to in what administrative law category the Commission policy
statement "order" falls. It could not be a rule because no
notice and comment procedure was employed, and we are
aware of no proposition of administrative law that allows the
assurances of individual Commissioners--even a majority--to
transform a prospective enforcement policy into a retroactive
rule of decision. In any event, the Commission concedes that
the statement did not itself apply to this case. Instead, the
Commission argues we should have remanded based on the
majority of Commissioners' expressed intent to apply the new
policy retroactively to this adjudicatory proceeding (notwith-
standing that a petition for reconsideration directed to the
policy statement has been filed before the Commission 1),
because we could thereby have avoided deciding a constitu-
tional question. We rather doubt that this court should ever
grant an agency's motion to remand after oral argument over
the opposition of a petitioner. The same consideration that
prevents the government from voluntarily acquiescing in a
panel decision and thereafter seeking vacatur while a petition
for reconsideration is pending seems applicable to such a
maneuver. See Mahoney v. Babbitt, 113 F.3d 219 (D.C. Cir.
1998). To be sure, as our colleague Judge Tatel points out,
we have previously granted an FCC motion to remand in a
case raising an equal protection challenge. See Steele v. FCC,
770 F.2d 1192 (D.C. Cir. 1985), vacated, Steele v. FCC, No.
84-1176 (D.C. Cir. Oct. 31, 1985) (en banc) (discussed in
Lamprecht v. FCC, 958 F.2d 382, 385 (D.C. Cir. 1992)). In
that case, however, the motion for remand was filed before
oral argument en banc (the panel opinion had been vacated)

__________
1 The Commission's attempt to characterize Commissioner
Furchtgott-Roth's concern as restricted to television stations is
disingenuous. The FCC cites his concurrence in the amended
policy statement as addressing only the nonbinding nature of the
policy with regard to television stations. It fails to mention,
however, the Rule 28(j) letter its own counsel filed with the court
noting that the Commissioner thought it inappropriate for the
motion to remand to bind the Commissioners to vote in a particular
way and thus wished to make no representations about what sort of
order should ultimately be adopted.

and, more important, the Commission's motion, which indicat-
ed that it doubted the constitutionality of its own policy, was
supported by the petitioner who had challenged the policy.2
By contrast, in this case the FCC never indicated any doubt
as to the constitutionality of its affirmative action/EEO policy.
Still, if the Church had supported the Commission's motion in
this case, we might well have ordered a remand.

The Church's position was quite understandable. It is
simply not so, as the Commission contends, that if we had
ordered a remand and the Commission had modified its
opinion as its counsel indicated that it would, that the Church
would have been granted complete relief. The Church had
challenged both the King's Garden policy and the FCC's
EEO regulations. And the regulations, as we recognized in
our prior opinion, would continue to apply to the Church even
if King's Garden were overruled. In its Lutheran Church
order, the Commission indicated that any religious exemption
would apply to the entire set of EEO regulations. But in its
new policy statement, the Commission expressly disavowed
that position. 13 F.C.C.R. 6322, 6325 (1998) ("Religious
broadcasters will also remain subject to Sections 73.2080(b)
and (c) of the Commission's Rules ... notwithstanding any
suggestion to the contrary in Lutheran Church/Missouri
Synod, 12 F.C.C.R. 2152, 2166 n.9 (1997)."). The Church
would thus still remain obligated to exercise racial prefer-
ences within the pool of Lutheran applicants under the Com-
mission's EEO rules. As such, modification of the King's
Garden policy, whether pursuant to RFRA or the Commis-
sion's new policy, would not bring the Church into compliance
with the EEO regulations.

The Commission claims that the Church did not actually
challenge the future effect of the EEO regulations, rather
just their application to it in this case and the sanctions the
FCC imposed. But whenever a party challenges the regula-

__________
2 See Appellant's Response to Motion for Remand at 1, Steele v.
FCC, No. 84-1176 (D.C. Cir. 1986). It was the intervenor, and the
amici curiae, supporting the Commission's policy, who objected.
See Intervenor Dale Bell's Opposition to Motion for Remand at 1;
Joint Response to Motion for Remand at 1.

tory basis for a sanction it necessarily challenges the future
effect of the regulation. Understandably, the Church focused
its fire on the Commission's reasoning in this specific case,
but it nevertheless made clear that it was challenging the
constitutionality of the Commission's entire EEO regulatory
scheme as in violation of the Fifth Amendment.3 Certainly
that is why the Justice Department filed its amicus brief
directed only to that issue.

2. The RFRA/Free Exercise Ground

The Commission alternatively argues that we were obliged
to decide the RFRA challenge to the Commission's order
before reaching any constitutional issues or even if, as we
concluded, the RFRA challenge were intertwined with First
Amendment free exercise concerns, we were obliged to decide
that issue before we reached the Fifth Amendment question.

We find the Commission's position quite anomalous because
under its preferred order of disposition of issues we would
have had to decide the Fifth Amendment issue unless we
decided the RFRA/free exercise issue against it. Just as a
party ordinarily may not be heard to complain about the
reasoning of a decision in its favor, Powell v. Washington
Metropolitan Area Transit Commission, 466 F.2d 466 (D.C.
Cir. 1972), we think a losing party has no legal basis for
claiming a case should have been decided against it on
another ground. It may well be that the Commission really
assumes that if we had struggled first with the RFRA/free
exercise issue we would have been inclined to remand, in
which case this argument is really only another way to
present its remand contention.4

__________
3 The Church certainly raised a general equal protection chal-
lenge in its opening brief, and we have held that an appellant has
the right to amend its argument when the government makes such
a shift midway through the appeal. Dynalantic Corp. v. Depart-
ment of Defense, 115 F.3d 1012, 1015 (D.C. Cir. 1997).

4 The Commission's citation of the Supreme Court's recent deci-
sion in Federal Election Commission v. Akins, 118 S. Ct. 1777
(1998), in support of its position is of no help. In Akins, the
Supreme Court refused to address what we thought was a pure

We are certainly mindful of the doctrine that counsels
avoidance of constitutional issues, but as we have explained,
we do not see how deciding the case on RFRA/free exercise
grounds would have granted the Church complete relief.
And, as we also observed in our prior opinion, the RFRA/free
exercise issue is also constitutional in character. There is
simply no support for the Commission's peculiar notion that
some constitutional issues, like those involving the First
Amendment, are less important and should be decided before
Fifth Amendment claims.

3. Strict Scrutiny

It is important to recognize that the Commission's defense
rests solely on its contention that strict scrutiny does not
apply to its policy of seeking broadcast programming diversi-
ty through EEO employment guidelines. The Justice De-
partment had asserted that the Commission's policy was also
justified based on the Commission's legitimate interest in
preventing employment discrimination and that even if strict
scrutiny applied, the Commission's EEO employment guide-
lines met the compelling interest tests and narrow tailoring
that strict scrutiny requires. Seeking rehearing (in the peti-
tion filed jointly with the Commission) the Justice Depart-
ment abandoned the claim that the FCC's policy can with-
stand strict scrutiny. All the Commission's eggs--at least at
this stage--are placed in the standard of review basket.

The Commission's essential argument is that its rule "does
not require the station to adopt racial goals or achieve
proportional representation in its workforce," (emphasis add-
ed), and therefore strict scrutiny is inappropriate. FCC

__________
statutory issue. See Akins v. Federal Election Commission, 101
F.3d 731 (D.C. Cir. 1997). Instead, the Court remanded in light of
a possible constitutional issue that might arise as a result of the
Federal Election Commission (FEC)'s rules defining "members."
Far from avoiding the constitutional issue by deciding on statutory
grounds, the Supreme Court avoided decision on the statutory claim
by addressing a possible constitutional issue that had not even been
raised below.

Petition for Rehearing and Suggestion for Rehearing In Banc
at 12. Moreover, the Commission insists there is no evidence
in the record that this station, or any station, ever engaged in
racial hiring (presumably discriminating against a non-
minority).

We think that the Commission's position, accepted by our
dissenting colleagues, has two logical flaws. Chief Judge
Edwards insists that a regulation constitutes a racial classifi-
cation only if it requires or obliges someone to exercise a
racial preference. As we observed in our prior opinion, it is
clear that these regulations do effectively oblige the Church
to implement racial preferences in its hiring decisions. Lu-
theran Church-Missouri Synod, 141 F.3d at 351-52. But the
degree to which the regulations require, oblige, pressure,
induce, or even encourage the hiring of particular races is not
the logical determinant of whether the regulation calls for a
racial classification. In Adarand, the challenged regulations
did not require or obligate would-be contractors to grant a
preference to minority subcontractors. Adarand Construc-
tors, Inc. v. Pena, 515 U.S. 200 (1995). Rather, the regula-
tions provided a financial incentive to bidding contractors to
grant such a preference--an incentive that contractors were
free (at their economic peril) to disregard. Id. at 205-08.
Nonetheless, the Supreme Court treated the regulations as a
racial classification, and did not even pause to consider the
suggestion that the absence of a compelled racial preference
makes strict scrutiny inapposite. Because the FCC's regula-
tions at issue here indisputably pressure--even if they do not
explicitly direct or require--stations to make race-based hir-
ing decisions, under the logic of Adarand, they too must be
subjected to strict scrutiny. See also Monterey Mechanical
Co. v. Wilson, 125 F.3d 702, 710 (9th Cir. 1997).5 Judge Tatel

__________
5 The Ninth Circuit in Monterey stated that a classification
constitutes a racial classification if it "authorizes or encourages" a
racial preference. Monterey Mechanical Co., 125 F.3d at 710
(quoting Bras v. California Pub. Utilities Comm'n, 59 F.3d 869, 875
(9th Cir. 1995)). That a regulation becomes a racial classification if
it "authorizes" preferences may be disputable. We need not ad-

contends that the regulations do not provide "incentives" to
stations to engage in race-based personnel decisions, but as
we explained in our initial decision, Lutheran Church-
Missouri Synod, 141 F.3d at 351-52, we think that assertion
blinks reality.

By insisting on an "obligation or requirement" test, Judge
Edwards would make the analytical definition of a classifica-
tion depend on the degree of government pressure. Yet if
the regulations "suggested" an 80% white male workforce,
would there be any doubt as to the applicable standard of
review? See Monterey Mechanical Co., 125 F.3d at 711.
Although an analysis of the degree of government pressure to
grant a racial preference would no doubt be significant in
evaluating whether a regulation survives strict scrutiny, it is
the fact of encouragement--a fact that no one denies--that
makes this regulation a racial classification.6

That does not mean that any regulation encouraging broad
outreach to, as opposed to the actual hiring of, a particular
race would necessarily trigger strict scrutiny. Whether the
government can encourage--or even require--an outreach
program specifically targeted on minorities is, of course, a
question we need not decide. As we concluded in our prior
opinion, the Commission's regulations go far beyond any
nondiscriminatory outreach program. The imposition of nu-
merical norms based on proportional representation--which
is the core element to what are often referred to as affirma-
tive action, set aside, or quota programs--is the aspect of the
Commission's rule that makes it impossible for us to apply
any standard of review other than strict scrutiny.7 In other

__________
dress that question as the regulations here unquestionably "encour-
age" racial preferences under Adarand.

6 The Commission suggests that even if some stations engage in
"racial hiring" to avoid FCC scrutiny the employer's actions should
be thought of as "unilateral," not implicating the government. We
do not think that is a serious argument.

7 If a non-discriminatory hiring policy would necessarily yield a
workforce with a racial composition that matches that of the Metro-
politan Statistical Area, then it might be argued that requiring
employers to examine the racial composition of their workforces is

words, the regulations here must be subjected to strict scruti-
ny because they encourage racial preferences in hiring and as
such treat people differently according to race. We of course
do not claim, as Judge Tatel suggests, that all race conscious
measures adopted by the government must be subjected to
strict scrutiny. See supra n.5.

The second logical flaw in the Commission's argument,
adopted in Judge Tatel's dissent, concerns the claim that the
record includes no evidence that the Church has ever em-
ployed a racial preference in its hiring decisions. Judge Tatel
argues that absent such evidence strict scrutiny is inappropri-
ate. Yet the Commission (and presumably Judge Tatel)
concedes that if the regulation explicitly imposed quotas or
goals strict scrutiny should apply. But one would not know
at the time the quota or goal were imposed whether it would
necessarily cause a preferential hiring decision. It could be
contended that a goal or even a quota merely reflected a non-
discriminatory hiring pattern and therefore that an employer
who met the goal or quota never actually discriminated.
Therefore, if evidence of actual discrimination would not be
required before applying strict scrutiny in the explicit
quota/goal cases, there is no logical reason why it should be
required here. In truth, such an evidentiary obligation would
turn equal protection analysis inside out. Once a government
program is shown to call for racial classifications, the heavy
burden to justify it shifts to the government. The challenger
does not have to show that the program actually caused him
to discriminate in an actual case--a requirement which would
expose the challenger to the risk of admitting a Title VII
violation.

__________
simply an anti-discrimination enforcement technique that does not
implicate racial preferences. However, not only has the Commis-
sion provided no support for this proposition, but as we said in our
opinion, the Commission has in fact disavowed it, saying that "we do
not believe that fair employment practices will necessarily result in
the employment of any minority group in direct proportion to its
numbers in the community." Lutheran Church-Missouri Synod,
141 F.3d at 352.

The Commission's evidentiary argument also overlooks the
point that the Church comes before this court asserting the
constitutional rights of absent third parties: the prospective
non-minority applicants who will be denied equal treatment.
In cases in which a litigant is accorded third party standing--
which no one currently argues the Church lacks--there is
simply no requirement that the litigant identify the particular
individuals whose equal protection rights have been, or will
be, violated. And the Commission's proposed evidentiary
obligation is flatly inconsistent with the Supreme Court's
standing analysis in the affirmative action caselaw. The
Court has held that the alleged victim of unequal treatment
does not have to prove that the challenged policy was the "but
for" cause of his injury; the claim that the litigant was denied
equal treatment is sufficient to constitute Article III "injury-
in-fact." See Northeastern Fla. Chapter of the Associated
Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656,
664-66 (1993). Thus, if a non-minority prospective Church
employee had challenged the constitutionality of the regula-
tions, he would not have to submit evidence demonstrating
that the Church's actual use of racial preferences (pursuant to
the regulations) was the cause of his failure to be hired. It
would be sufficient, for standing purposes, to show that the
regulations caused him to be treated differently from minori-
ties. That being so, we cannot understand how such a
litigant would be required, in order to trigger strict scrutiny,
to make a showing that the Church made use of a racial
preference in his particular hiring decision. And if an indi-
vidual litigant would not have to make such a showing,
neither does the Church standing in his or her place for the
purpose of this constitutional challenge.

The Commission en passant calls to our attention the
proposition that "statistics can be an important source of
proof in employment discrimination cases." But the Commis-
sion understandably does not link up that observation with
any part of their argument. It could appear to be directed to
the magnitude of government's interest, if strict scrutiny
applied, but, as we have noted, the Commission does not
claim that its regulations pass the strict scrutiny test. And,

in any event, as we pointed out in our prior opinion, the
Commission justified its EEO rule not as preventing discrimi-
nation but as achieving program diversity. It is clearly
designed to place an obligation on stations that goes consider-
ably beyond non-discrimination with respect to hiring minori-
ties.

That brings us to the interesting dissenting opinion of the
Chief Judge, who argues from Title VII disparate impact
cases that what the Commission has required here is not all
that different from the obligation an employer defendant has
to rebut a showing of disparate impact in which proportionali-
ty is relevant. It is perhaps sufficient to respond that
whatever the nature of the employer's burden under Title
VII, the Commission insisted that its regulation is not based
on employment diversity or anti-discrimination, but on pro-
gramming diversity. It was the Justice Department that
initially sought to ride both horses (which is why we observed
in our opinion that "diversity" can and is being used today as
a rather plastic term).

We think the Chief Judge, in any event, is wrong on his
broader point. Although statistics, to be sure, can be used in
Title VII cases, the statute does not encourage employers to
impose racial preferences in order to avoid Title VII liability.
Indeed, Title VII itself specifically disclaims any intention of
pressuring employers to impose racial preferences. See 42
U.S.C. s 2000e-2j (1994) ("Nothing contained in [Title VII]
shall be interpreted to require any employer ... to grant
preferential treatment to any individual or to any group
because of [ ] race...."). Since we held that the FCC's EEO
regulations, unlike Title VII, inevitably cause licensees to
grant racial preferences, we disagree that the Commission
could avoid the impact of our holding by merely adopting
Chief Judge Edwards' suggestion--that the FCC amend the
regulations to add the above quoted Title VII caveat. See
Chief Judge Edwards' dissent at [8]. For the Commission to
declaim unrealistically that the regulations are not to be
interpreted as requiring a preference--as Chief Judge Ed-
wards recommends--is to simply put forward a covering
fiction.

Even in Title VII disparate impact cases, quite different
sorts of statistics are employed for the limited purpose of
determining whether a particular sort of job requirement
disadvantages minorities. Comparing the proportionality of
minorities in the employer's workforce to the proportionality
of minorities in the overall population (the Metropolitan Sta-
tistical Area or MSA) is never the relevant comparison under
such cases; rather, the racial composition of those holding at-
issue jobs is compared with the racial composition of qualified
applicants or qualified persons in the labor market. See
Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994 (1988)
(O'Connor, J., plurality opinion). That the relevant statistical
gauge is not the proportionality of minorities in the overall
population is clear from the antidiscrimination rationale of
Title VII--the purpose of statistical evidence is to expose
possible discriminatory intent, not to establish a workforce
that mirrors the racial breakdown of the MSA.

If discrimination under Title VII were defined as non-
proportionality, much of the Supreme Court's recent equal
protection cases would make little sense. That is, "[a]t the
heart of the Constitution's guarantee of equal protection lies
the simple command that the Government must treat citizens
as individuals, not as simply components of a racial, religious,
sexual or national class." Metro Broadcasting, Inc. v. FCC,
497 U.S. 547, 602 (1990) (O'Connor, J., dissenting) (citation
and internal quotations omitted). Of course, in some situa-
tions unequal treatment is justified to account for past dis-
crimination, but societal discrimination is not enough to justi-
fy imposing a racially classified remedy. Richmond v. J.A.
Croson Co., 488 U.S. 469, 493-94, 499 (1989); cf. Contractors
Assoc. of E. Penn., 442 F.2d 159 (3d Cir. 1971) (holding that
an affirmative action program directly tied to past discrimina-
tion by construction unions did not violate Title VII). The
Supreme Court has never held that non-proportionality con-
stitutes discrimination. (The Commission itself disavowed
this position. Lutheran Church-Missouri Synod, 141 F.3d
at 352.) The Court has noted the danger that relying solely
on statistical disparities as proof of discrimination under Title
VII could result in the imposition of de facto quotas. Watson,

487 U.S. at 991-97 (O'Connor, J., plurality opinion). You
could achieve proportional representation quotas as easily by
that route as by requiring them explicitly. In sum, that
statistical evidence can be relevant in determining whether an
employer's past practice is discriminatory is not equivalent to
concluding that the absence of proportionality makes out
discrimination.

* * *

Accordingly, we deny the Commission's petition.

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