Lutheran Chch MO v. FCC

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

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On Suggestions of Rehearing

En Banc

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Before: Edwards, Chief Judge, Wald, Silberman,

Williams, Ginsburg, Sentelle, Henderson Randolph, Rogers,

Tatel and Garland, Circuit Judges.

O R D E R

Respondent's and Intervenor's Suggestions of Rehearing

En Banc and the response thereto have been circulated to

the full court. The taking of a vote was requested. Thereaf-

ter, a majority of the judges of the court in regular active

service did not vote in favor of the suggestions. Upon

consideration of the foregoing, it is

Ordered that the suggestions be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

A statement by Chief Judge Edwards, with whom Wald,

Circuit Judge, concurs, dissenting from the denial of the

suggestions of rehearing en banc is attached.

A statement filed by Circuit Judge Tatel, with whom

Wald, Circuit Judge, concurs, dissenting from the denial of

the suggestions of rehearing en banc is also attached.

Circuit Judge Rogers would grant the suggestions of re-

hearing en banc.

Circuit Judge Garland did not participate in this matter.

Separate statement filed by Chief Judge Edwards, with

whom Wald, Circuit Judge, concurs, dissenting from the

denial of the suggestions of rehearing en banc.

Edwards, Chief Judge, dissenting from the denial of rehear-

ing en banc: By subjecting an agency's nonpreferential anti-

discrimination policies to scrutiny appropriate only for racial

classifications, the panel in this case has created a constitu-

tional issue where none exists.

At issue are equal employment opportunity regulations

promulgated by the Federal Communications Commission

("Commission" or "FCC"). The regulations prohibit discrimi-

nation in employment. See 47 C.F.R. s 73.2080(a) (1997).

The regulations also require broadcast stations to maintain "a

positive continuing program of specific practices designed to

ensure equal opportunity in every aspect of station employ-

ment policy and practice." 47 C.F.R. s 73.2080(b). In par-

ticular, broadcasters are required to make sure that manag-

ers, employees, and prospective employees are fully apprised

of the equal employment opportunity policy; in addition,

broadcasters are required to "conduct continuing review of

job structure and employment practices" to ensure equal

employment opportunity. Id. Finally, under "EEO program

requirements," broadcasters are instructed that, "to the ex-

tent possible, and to the extent that they are appropriate in

terms of the station's size, location, etc.," a broadcaster

should consider the following actions to facilitate equal em-

ployment opportunity:

....

(1) Disseminate its equal opportunity program to job

applicants and employees. For example, this require-

ment may be met by:

(i) Posting notices in the station's office and other

places of employment, informing employees, and appli-

cants for employment, of their equal employment op-

portunity rights. Where it is appropriate, such equal

employment opportunity notices should be posted in

languages other than English;

(ii) Placing a notice in bold type on the employment

application informing prospective employees that dis-

crimination because of race, color, religion, national ori-

gin, or sex is prohibited;

(iii) Seeking the cooperation of labor unions, if repre-

sented at the station, in the implementation of its EEO

program and the inclusion of nondiscrimination provi-

sions in union contracts;

(iv) Utilizing media for recruitment purposes in a man-

ner that will contain no indication, either explicit or

implicit, of a preference for one sex over another and

that can be reasonably expected to reach minorities and

women.

(2) Use minority organizations, organizations for wom-

en, media, educational institutions, and other potential

sources of minority and female applicants, to supply

referrals whenever job vacancies are available in its

operation. For example, this requirement may be met

by:

(i) Placing employment advertisements in media that

have significant circulations among minorities residing

and/or working in the recruiting area;

(ii) Recruiting through schools and colleges, including

those located in the station's local area, with significant

minority-group enrollments;

(iii) Contacting, both orally and in writing, minority

and human relations organizations, leaders, and spokes-

men and spokeswomen to encourage referral of qualified

minority or female applicants;

(iv) Encouraging current employees to refer minority

or female applicants;

(v) Making known to recruitment sources in the em-

ployer's immediate area that qualified minority members

and females are being sought for consideration whenever

you hire and that all candidates will be considered on a

nondiscriminatory basis.

(3) Evaluate its employment profile and job turnover

against the availability of minorities and women in its

recruitment area. For example, this requirement may

be met by:

(i) Comparing the composition of the relevant labor

area with composition of the station's workforce;

(ii) Where there is underrepresentation of either mi-

norities and/or women, examining the company's person-

nel policies and practices to assure that they do not

inadvertently screen out any group and take appropriate

action where necessary. Data on representation of mi-

norities and women in the available labor force are

generally available on a metropolitan statistical area

(MSA) or county basis.

(4) Undertake to offer promotions of qualified minori-

ties and women in a nondiscriminatory fashion to posi-

tions of greater responsibility. For example, this re-

quirement may be met by:

(i) Instructing those who make decisions on placement

and promotion that qualified minority employees and

females are to be considered without discrimination, and

that job areas in which there is little or no minority or

female representation should be reviewed;

(ii) Giving qualified minority and female employees

equal opportunity for positions which lead to higher

positions. Inquiring as to the interest and skills of all

lower paid employees with respect to any of the higher

paid positions.

(5) Analyze its efforts to recruit, hire, and promote

minorities and women and address any difficulties en-

countered in implementing its equal employment oppor-

tunity program. For example, this requirement may be

met by:

(i) Avoiding use of selection techniques or tests that

have the effect of discriminating against qualified minori-

ty groups or females;

(ii) Reviewing seniority practices to ensure that such

practices are nondiscriminatory;

(iii) Examining rates of pay and fringe benefits for

employees having the same duties, and eliminating any

inequities based upon race or sex discrimination.

47 C.F.R. s 73.2080(c).

The Commission also utilizes internal guidelines for pro-

cessing license renewal applications. Under these guidelines,

when deciding how closely to examine compliance with equal

opportunity regulations by a station employing between five

and fifty full-time employees, the Commission will consider

the ratio of minority and women employees to the available

workforce as one of several factors. See Amendment of Part

73, 2 F.C.C.R. 3967, p 45 (1987); EEO Processing Guidelines

for Broadcast Renewal Applicants, 46 RR 2d 1693 (1980).

It seems to me that the challenged regulations command

virtually nothing, save good faith efforts by broadcasters to

ensure against unlawful employment discrimination. This

notwithstanding, the panel somehow viewed the FCC regula-

tions as "certainly influenc[ing] ultimate hiring decisions" and

"oblig[ing] stations to grant some degree of preference to

minorities in hiring." See Lutheran Church v. FCC, 141 F.3d

344, 351 (D.C. Cir. 1998). Accordingly, the panel concluded

that the regulations constituted the kind of racial classifica-

tion that must be subjected to strict scrutiny under Adarand

Constructors, Inc. v. Pena, 515 U.S. 200 (1995). See 141 F.3d

at 351. This analysis mischaracterizes the regulations, with

serious consequences.

The regulations in no way draw any kind of racial classifica-

tion. They plainly do not "oblige" anyone to exercise any

sort of hiring preference. Rather, the regulations merely

facilitate the avoidance of unlawful employment discrimina-

tion. The regulations "influence" hiring decisions only in the

sense that anti-discrimination law generally seeks to influence

employers to avoid bias. Therefore, I cannot understand how

it can be concluded that the regulations constitute a racial

classification. Because there is no racial classification at

issue here, there is no real constitutional issue to be decided

in this case.

* * *

Because the panel decision purports to decide major issues

of constitutional law where none exist, this case "presents

questions of 'real significance to the legal process as well as to

the litigants,' " Bartlett v. Bowen, 824 F.2d 1240, 1244 (D.C.

Cir. 1987). Thus, in my view, review by the full court is

required.

* * *

Under Adarand, the existence of "racial classification" in a

federal statute triggers strict scrutiny. See Adarand, 515

U.S. at 227. It is clear that Adarand, which consistently used

the language of "racial classification," see id. at 215, 223, 224,

227, dealt only with policies that actually classified on the

basis of race. A careful look at the regulations here reveals

that they do not include any such classification, and that

Adarand therefore does not apply to them.

The panel here found that the Commission's regulations

constituted a racial classification under Adarand, because, in

the panel's view, "[t]he entire scheme is built on the notion

that stations should aspire to a workforce that attains, or at

least approaches, proportional representation." 141 F.3d at

351-52. In so finding, the panel relied primarily on two

pieces of evidence. The first was the regulations' require-

ment that stations evaluate themselves, and, when finding

"underrepresentation" of minorities, determine whether their

hiring policies "inadvertently" discriminated. See 47 C.F.R.

s 73.2080(c)(3)(ii). The second piece of evidence, on which

the panel relied heavily, was a set of processing guidelines

that the FCC issued for internal review of licensing renewals.

Under the guidelines, a station that did not meet certain

numerical criteria could be subjected to closer review to

determine equal opportunity compliance. See Amendment of

Part 73, 2 F.C.C.R. 3967, p 45 (1987); EEO Processing

Guidelines for Broadcast Renewal Applicants, 46 RR 2d 1693

(1980). The panel thought these guidelines offered an incen-

tive to stations to employ hiring preferences. This incentive,

the panel concluded, was encouragement sufficient to trigger

strict scrutiny.

The panel was undoubtedly correct in stating that regula-

tions that "oblige stations to grant some degree of preference

to minorities in hiring" would constitute a racial classification

and would trigger strict scrutiny. See 141 F.3d at 351

(emphasis added). The serious problem with the panel's

analysis, however, is that the regulations here do not "oblige"

anyone to exercise any preference. The most they do, even

arguably, is to encourage stations fairly to consider minority

applications. Instructing stations to use statistical analysis

as one possible method of checking themselves for uninten-

tional discrimination could not conceivably be understood as

"obliging" or "encouraging" the use of any preference. It

simply advises a method for increasing vigilance against

discrimination. The processing guidelines, for their part,

clearly do not require that a station exercise a racial hiring

preference, but only set the conditions under which some

further inquiry into a station's hiring practices might occur.

The panel claimed that the mere possibility that the racial

composition of a station's workforce might play a role in

subjecting a station to the burden of a "government audit"

makes the guidelines into a preferential racial classification.

But this argument makes no sense in light of decisions, such

as Texas Dep't Community Affairs v. Burdine, 450 U.S. 248,

253-54 (1981) (test for prima facie case with respect to a

disparate treatment claim under Title VII) and Connecticut v.

Teal, 457 U.S. 440 (1982) (non-proportionality in the selection

process can be the basis of a "disparate impact" claim under

Title VII), setting forth the standards governing the estab-

lishment of a prima facie case of employment discrimination

under Title VII. See also 42 U.S.C. s 2000e-2(k) (1994)

(setting forth burden of proof in disparate impact cases).

The Burdine and disparate impact frameworks show defini-

tively that no suspect "racial classification" need arise simply

because the law dictates that an employer might have to

explain, on pain of sanction, why its hiring decisions were

nondiscriminatory.

Under Burdine, when a protected minority plaintiff shows

by a preponderance of the evidence that he or she was denied

employment despite being qualified, and that the position

remained unfilled, the burden of production shifts to the

employer-defendant to show that the hiring decision was

nondiscriminatory. See 450 U.S. at 253-54. In other words,

Burdine allows the race of just one applicant to play a crucial,

even determinative, part in requiring an employer to respond

in litigation and justify its actions. "[T]he prima facie case

'raises an inference of discrimination only because we pre-

sume these acts, if otherwise unexplained, are more likely

than not based on the consideration of impermissible fac-

tors.' " Id. at 254 (emphasis added) (quoting Furnco Constr.

Corp. v. Waters, 438 U.S. 567, 577 (1978)).

As the Supreme Court noted in establishing this frame-

work, "[t]he burden of establishing a prima facie case of

disparate treatment is not onerous." Burdine, 450 U.S. at

253. Yet, the Burdine framework certainly does not impli-

cate strict scrutiny. The FCC's processing guidelines use

race in an even less instrumental way: a numerical disparity

between a station's employees and the relevant workforce is

simply one factor among several in the Commission's determi-

nation of whether further investigation (not litigation) is

required.

In light of the statutory mandates that we routinely enforce

under Title VII, both with respect to "disparate treatment"

and "disparate impact" cases, see, e.g., Koger v. Reno, 98 F.3d

631, 633-34, 639 (D.C. Cir. 1996) (applying and explaining

disparate treatment and disparate impact standards), it is

hard to comprehend a suggestion that the disputed FCC

guidelines and regulations implicate strict scrutiny. A race-

based analysis may play a part in the Commission's decision

to launch an investigation to which a station would have to

respond. But it does not follow that the burden of a potential

investigation "obliges" a station to engage in unlawful hiring

preferences, any more than the Burdine burden-shifting

obliges employers generally to engage in preferential hiring

in order to avoid ever facing the requirement of justifying

their employment decisions as nondiscriminatory. Plainly,

race may be a factor in requiring a party to explain its actions

without triggering strict scrutiny.

In the opinion denying the petition for rehearing, the panel

suggests that the analogy to Title VII is inapposite, because

"the statute does not encourage employers to impose racial

preferences in order to avoid Title VII liability." The same

can be said here about the regulations and processing guide-

lines, for neither requires nor encourages employers to exer-

cise racial hiring preferences. The panel decision on rehear-

ing seeks to avoid the analogy to Title VII by citing a

provision in the statute that says, "[n]othing 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...." See 42 U.S.C. s 2000e-2j

(1994). I take it from this that the Commission's regulations

would have survived judicial scrutiny had the agency foreseen

the need to parrot this passage from Title VII. When the

case is returned to the agency, the Commission should consid-

er amending the regulations to add the Title VII caveat. It

seems obvious to me that the regulations and guidelines as

presently written do not require or encourage racial prefer-

ences, but, if that point needs further clarification, it is easily

achieved.

The panel decision seems to be of the view that any policy

that leads an employer to be conscious of race while making

hiring decisions demands strict scrutiny. I think this is

incorrect as a matter of law and logic: a person who is being

scrupulously and self-consciously careful not to be racist in a

hiring decision is certainly "conscious of" race--but in a

positive way. To think otherwise is to confuse the aspiration

to color-blindness with the reality that today, whether we like

it or not, "race" exists as a social fact. If Congress passed a

law stating that every federal employer must think twice

before every hiring decision to make sure he or she was not

making a racist decision, this law surely would not implicate

strict scrutiny, even though it would call for self-

consciousness about race.

Indeed, the processing guidelines may not even aim to

affect the stations' behavior at all: the guidelines reasonably

can be understood to provide nothing more than a method for

allocating the agency's investigative resources. It is hard to

see how strict scrutiny should apply to the guidelines an

agency uses to decide when to look closely at whether its

licensees are complying with the law. This is especially true

when no infringement on the rights of the licensee is implicat-

ed by the closer investigation. The Commission cannot inves-

tigate every station in the country to see if it is discriminating

in its hiring. The agency must allocate its investigative

resources somehow. One inexpensive, nondiscriminatory way

for it to make the initial cut is to look at the numbers of

minorities hired relative to the number of minorities in the

general area. That is all that the processing guidelines

actually do.

Because there is no racial classification in these guidelines

or regulations, Adarand does not apply. The panel's consti-

tutional analysis was therefore entirely unwarranted. The

panel here essentially disagreed as a matter of policy with the

use of statistical comparison as a method of targeting more

careful investigation. There may be reasons for such a

disagreement, but they are not of constitutional magnitude.

Because Adarand simply does not cover this case, its applica-

tion--which allows the panel to second-guess the Commission

on agency policies--is misplaced.

* * *

Beyond its misapplication of Adarand to the regulations

and guidelines at issue in this case, the panel here subjected

the term "diversity" to a rhetorical attack which, in my view,

misstated the limited way in which the concept of "diversity"

functions in this case. See 141 F.3d at 356. Depending on

context, the term "diversity" can have several meanings, only

one of which actually applies here. The only meaning that

might be relevant here is that of "programming diversity,"

the justification offered by the Commission for its equal

employment opportunity regulations, endorsed by the Su-

preme Court in Metro Broad., Inc. v. FCC, 497 U.S. 547

(1990), and not overruled by the Court in Adarand.

A second, largely unrelated meaning of "diversity," is the

use of racial and gender diversity in the workplace as either a

relevant datum for making an initial determination of whether

employment discrimination is occurring, or, alternatively, as a

tool for promoting important social goals. This second type

of diversity is not at issue in this case, because the Commis-

sion has not cited workplace diversity in itself as its justifica-

tion for equal employment opportunity programs.

Unfortunately, the panel decision seems to conflate the

several meanings of "diversity." The panel decision thus

broadly deplores the

burden the term 'diversity' has been asked to bear in the

latter part of the 20th century in the United States[,]

[claiming that] it appears to have been coined both as a

permanent justification for policies seeking racial propor-

tionality in all walks of life ("affirmative action" has only

a temporary remedial connotation) and as a synonym for

proportional representation itself.

141 F.3d at 356. This argument may be relevant to the

ongoing debates in our society over "affirmative action;" but I

do not understand what this message has to do with the

instant case.

The panel decision does not appear to doubt for an instant

that, absent the suggestion that the disputed regulations

constitute a "racial classification," there is no real constitu-

tional issue at stake here. The panel's references to "strict

scrutiny" and "intermediate scrutiny," 141 F.3d at 356, are

irrelevant, because there is no "racial classification" at issue.

Indeed, given the truly innocuous nature of the regulations,

proponents of affirmative action might be surprised by the

suggestion that the FCC equal employment opportunity pro-

gram is seen by some as affording racial preferences. In my

view, it just isn't so.

This court hears and decides garden-variety challenges to

the logic of agencies' justifications for their actions every day

without reaching constitutional questions. If the Commission

failed adequately to explain or justify its equal employment

opportunity program as applied to the station here, the

proper initial review should have proceeded according to our

ordinary standards. If the parties failed to join the issue

correctly, the court should still have declined to address an

overreaching constitutional challenge. By forcing the square

peg of the Commission's regulations into the round hole of

the Adarand analysis, which applies only to racial classifica-

tions, the panel decision disserves the development of anti-

discrimination doctrine. This serious misprision of the issues

calls for rehearing en banc.

Separate statement filed by Circuit Judge Tatel, with

whom Wald, Circuit Judge, concurs, dissenting from the

denial of rehearing en banc:

Tatel, Circuit Judge, dissenting from the denial of rehear-

ing en banc: Although the Supreme Court has gradually

limited governmental affirmative action, first applying strict

scrutiny to state and local programs in City of Richmond v.

J.A. Croson Co., 488 U.S. 469 (1989), and then to federal

programs in Adarand Constructors, Inc. v. Pena, 515 U.S.

200 (1995), neither the Supreme Court nor any other court

has ever applied strict scrutiny to programs that require

nothing more than recruitment, outreach, self-evaluation, and

data collection. Because the panel has done just that, taking

Adarand where no court has yet taken it, and because the

panel could have easily avoided the issue by granting the

Commission's motion for partial remand of the record, this

case involves "a question of exceptional importance" warrant-

ing en banc review. Fed. R. App. P. 35(a).

I

"[N]ovel" or even "unusual" may well be appropriate de-

scriptions of the Commission's motion to remand. Lutheran

Church-Missouri Synod v. FCC, 141 F.3d 344, 349 (D.C. Cir.

1998). But because remand would have mooted this case,

thus avoiding the need to decide a major constitutional issue,

the panel should have taken the Commission at face value and

granted its motion. "If there is one doctrine more deeply

rooted than any other in the process of constitutional adjudi-

cation, it is that we ought not to pass on questions of

constitutionality ... unless such adjudication is unavoidable."

Spector Motor Serv., Inc. v. McLaughlin, 323 U.S. 101, 105

(1944).

The Commission's motion stated that in light of its new

Order and Policy Statement issued on February 25, 1998, it

would "(1) vacat[e] those portions of the Memorandum Opin-

ion and Order, the Initial Decision of the Administrative

Law Judge and the Decision of the Review Board that relate

to the EEO issue designated for hearing in this proceeding,

and (2) unconditionally grant[ ] the Church's applications for

renewal of its broadcast licenses at issue here." Mot. Partial

Remand at 1. According to the Commission, this would have

"moot[ed] all issues in this case" except the lack of candor

issue, id. at 2--a question not, as the Church claims, "inextri-

cably related" to the affirmative action issue, Opp'n Pets.

Reh'g and Suggestions for Reh'g In Banc at 5, but which

instead turned solely on whether the Church had accurately

characterized its own hiring policies. Commission counsel's

subsequent notification to the panel that one Commissioner

would not agree to this result in no way undermined the

Commission's commitment to vacate its order.

To be sure, the Commission found the Church's conduct

defective independently of the Church's Lutheran preference,

and the Commission's EEO requirements will still apply to

the Church's future outreach and self-evaluation efforts. But

none of this is relevant in light of the Commission's declara-

tion that it would vacate all portions of its order dealing with

the Church's EEO violations and unconditionally grant the

Church's license renewal. Were the panel to have remanded,

and were the Commission to make an issue of the Church's

compliance in a future enforcement proceeding, nothing

would prevent the Church from challenging the constitution-

ality of the EEO requirements at that time.

I acknowledge that the Commission's request came well

after oral argument took place, and that in some cases we

have held that late filing of such motions precludes remand.

See Mississippi River Transmission Corp. v. FERC, 969

F.2d 1215, 1217 n.2 (D.C. Cir. 1992) (motion filed without

request for leave to file two days before oral argument). But

late filing made no difference in Steele v. FCC, 770 F.2d 1192

(D.C. Cir.), vacated, Steele v. FCC, No. 84-1176 (D.C. Cir. Oct

31, 1985) (en banc), where, as described in Lamprecht v. FCC,

this court remanded an affirmative action case to the FCC

not only after a panel had issued a decision, but after the full

court vacated the panel decision to rehear the case en banc.

See 958 F.2d 382, 385 (D.C. Cir. 1992) (discussing Steele). In

its remand motion in Steele, the Commission "acknowledged

that it thought its race- and sex-preference policies contrary

to both the Communications Act and the Constitution" and

advised the court that it wanted to reconsider those policies.

Id.

The panel points out that in Steele the Commission's motion

to remand was supported by the party who had challenged

the policy. See Panel Op. Den. Reh'g at 4. However, I know

of no authority supporting the proposition that our deeply

rooted obligation to avoid unnecessarily adjudicating constitu-

tional questions evaporates simply because the party that

brought the case desires a decision on the merits. Nor is

such a notion consistent with Supreme Court precedent. For

example, in Richardson v. Wright, 405 U.S. 208 (1972) (per

curiam), the Court, having been notified "[s]hortly before oral

argument" that the agency had adopted new regulations,

ruled that "the appropriate course is to withhold judicial

action pending reprocessing, under the new regulations,"

because if petitioner were to prevail, "there will be no need to

consider the constitutional claim." Id. at 209. The Court

reached this conclusion "sua sponte," id. at 212 (Brennan, J.,

dissenting), suggesting that the Justices gave respondent no

opportunity to express its view on the matter prior to re-

mand. Remand would have been equally appropriate here to

avoid deciding a major constitutional issue, particularly be-

cause the Commission has not just issued a binding order

changing its policies, see In re Streamlining Broad. EEO

Rule and Policies, 13 F.C.C.R. 6322 p 3 (1998) ("This action

should be considered binding for radio licensees and permit-

tees ...."), but also stated its intent to apply the new policies

to the Church's case on remand, thus granting it complete

relief on the EEO issue.

II

Turning to the merits, I find nothing in Adarand or any

other affirmative action case decided by the Supreme Court

that supports the panel's application of strict scrutiny to the

Commission's EEO regulations. The panel relies on Ada-

rand for the proposition that strict scrutiny applies to all

governmental racial classifications, but a careful reading of

Adarand demonstrates that the target of strict scrutiny is

"any racial classification subjecting [a] person to unequal

treatment." 515 U.S. 200, 224 (1995) (emphasis added). Not

only does the language of Adarand make clear that its

precise concern is governmental action that "treat[s] people

differently because of their race," id. at 227; see also id. at

228 (strict scrutiny applies to "unequal treatment based on

race"), but the facts of Adarand presented the Court with a

racial classification that squarely produced unequal treat-

ment: Adarand involved a government program that gave

financial bonuses to contractors who utilized minority subcon-

tractors, thus directly enhancing the competitive position of

minority-owned firms relative to non-minority-owned firms in

bidding for subcontracts. See id. at 205-10.

In each major affirmative action case discussed in Ada-

rand, moreover, unequal treatment based on race served as

the trigger for strict scrutiny. In City of Richmond v. J.A.

Croson Co., city policy required prime contractors to subcon-

tract at least 30 percent of the contract award to minority-

owned businesses. See 488 U.S. 469 (1989). In Wygant v.

Jackson Board of Education, a school board used racial

preferences in determining which teachers to lay off. See 476

U.S. 267 (1986). And in Regents of the University of Califor-

nia v. Bakke, a state medical school reserved 16 out of 100

places in the entering class for minority students and evaluat-

ed minority applicants through a separate process using

admissions criteria different from those used for white appli-

cants. See 438 U.S. 265 (1978).

Properly read, therefore, Adarand does not require strict

judicial scrutiny of all race-conscious measures adopted by

the government. Indeed, a vast range of antidiscrimination

laws, including Title VII, require public and private entities to

be conscious of race not only in outreach and recruitment, but

also in hiring and promotion. Surely such laws do not

implicate strict scrutiny. What triggers strict scrutiny, then,

is not mere race-consciousness, but rather unequal treatment

based on race.

In this case, I am at a loss to understand how the Commis-

sion's regulations give rise to unequal treatment based on

race. By their own terms, the regulations require no "use[ ]

of race in governmental decisionmaking" as in Adarand. 515

U.S. at 228. Instead, they merely require broadcasters to

eliminate discriminatory practices, to expand the pool from

which they hire, and to keep adequate records. Nothing in

the regulations' outreach provisions, see 47 C.F.R.

s 73.2080(c)(2) (1997) (requiring stations to target sources for

minority applicants); id. s 73.2080(c)(5) (requiring stations to

analyze their efforts to recruit, hire, and promote minorities),

either directs stations to hire anyone on the basis of race or

requires stations to maintain any specific racial balance. Nor

do the regulations confer or withhold benefits upon anyone on

racial grounds. The regulations simply require that "licen-

sees make efforts to recruit minority and women applicants

so that they will be ensured access to the hiring process." In

re Benchmark Radio Acquisition Fund IV Limited Partner-

ship, 11 F.C.C.R. 8547 p 3 (1996). Indeed, nothing in the

regulations prevents stations from evaluating job applicants

solely on the basis of individual merit. At least one other

court has characterized such outreach programs as race-

neutral. See Peightal v. Metropolitan Dade County, 26 F.3d

1545, 1557-58 (11th Cir. 1994) (describing school recruitment

programs targeted at minorities and outreach programs led

by minority employees as race-neutral).

The panel responds by pointing out that the regulations in

Adarand, like the Commission's regulations here, "did not

require or obligate" private entities to adopt a racial prefer-

ence, but merely "provided a financial incentive to bidding

contractors to grant such a preference." Panel Op. Den.

Reh'g at 8. "Nonetheless," according to the panel, "the

Supreme Court treated the regulations as a racial classifica-

tion, and did not even pause to consider the suggestion that

the absence of a compelled racial preference makes strict

scrutiny inapposite." Id. at 9. In Adarand, however, the

core of the equal protection challenge was not that the system

of bonuses provided an incentive for prime contractors to

grant a racial preference in subcontracting, but that the

bonuses directly put minority-owned subcontractors in a more

competitive bidding position than non-minority-owned subcon-

tractors. Adarand would control this case if the Commis-

sion's regulations put minority job applicants in a better

position than non-minority applicants. But the regulations do

no such thing. Indeed, they do not even offer incentives for

licensees to prefer minority over non-minority job applicants.

Stations with inadequate outreach programs cannot protect

themselves from enforcement actions by preferring minorities

in order to meet the 50% parity goal. See In re Kelly

Communications, Inc., 12 F.C.C.R. 17,868 pp 11-13 (1997).

And stations with adequate outreach programs face no sanc-

tions for failing to reach specific numerical levels of minority

hiring. See In re Louisiana Broadcast Stations, 7 F.C.C.R.

1503 pp 16-19 (1992) (holding that station complied with EEO

rule based on its minority recruitment efforts despite failing

to hire any minorities); In re Miami Broadcast Stations, 5

F.C.C.R. 4893 WW 13-17 (1990) (holding that station complied

with EEO rule despite statistical disparity between new

minority hires and minorities in local labor force, and declar-

ing that "failing to meet the Commission's processing guide-

lines does not in and of itself demonstrate the inadequacy of a

licensee's EEO efforts. The Commission instead focuses on a

station's overall efforts to recruit, hire and promote minori-

ties.") (citation omitted). Because minority hiring is neither

necessary nor sufficient for a finding of compliance with the

Commission's regulations, I find it difficult to understand how

the panel could have concluded that the regulations "indisput-

ably" encourage licensees to use racial hiring preferences.

Simply put, the regulations here do not produce the kind of

direct discriminatory treatment that occurred in Adarand,

Croson, Wygant, or Bakke.

All but conceding that the regulations by their terms

mandate no hiring preferences, the panel, pointing to the

requirement that stations evaluate their employment profile

against the availability of women and minorities in their

recruiting areas, see 47 C.F.R. s 73.2080(c)(3), insists that the

EEO regulations "certainly influence ultimate hiring deci-

sions." Lutheran Church, 141 F.3d at 351. But nothing in

the record supports this assumption; indeed, the Church does

not even claim that the regulations "influence" its hiring

decisions.

The panel says that because "evidence of actual discrimina-

tion would not be required before applying strict scrutiny" in

cases involving racial quotas, "there is no logical reason why

it should be required here." Panel Op. Den. Reh'g at 11.

While it is certainly true that courts have not required

evidence of discrimination before applying strict scrutiny in

quota cases, the reason is not that they view it as irrelevant

or unnecessary, but rather that in such cases the connection

between the regulatory requirements and the resulting un-

equal treatment has always been so obvious and well-

documented that an overt evidentiary requirement would be

superfluous. See, e.g., Croson, 488 U.S. at 481-83 (document-

ing the differential treatment of minority versus non-minority

subcontractors under Richmond's set-aside requirement);

Wygant, 476 U.S. at 270-72 (documenting the differential

treatment of minority versus non-minority teachers under the

Jackson Board's layoff policy); Bakke, 438 U.S. at 272-78

(documenting the differential treatment of minority versus

non-minority applicants under the Davis medical school's

racial quota). Given the evidence of discriminatory treatment

in Croson, Wygant, and Bakke, I do not agree that requiring

evidence of discrimination in this case would "turn equal

protection analysis inside out." Panel Op. Den. Reh'g at 11.

I know of no equal protection case in which a court has

shifted the burden of justifying a regulatory scheme to the

government without first determining that the scheme has

actually effected some form of unequal treatment. Where, as

here, the existence of discriminatory treatment is far from

obvious, we should insist on something more than unsupport-

ed speculation about the effect of challenged regulations

before subjecting them to strict scrutiny.

I respectfully dissent from the denial of the suggestions for

rehearing en banc.