Amicus Curiae Brief — Metro Broadcasting, Inc. v. FCC

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No. 89-453 CLERK

In the

Supreme Court of the United States

October Term, 1989

METRO BROADCASTING, INC., Petitioner

FEDERAL COMMUNICATIONS COMMISSION, Et Al.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF AMICUS CURIAE OF ASSOCIATED

GENERAL CONTRACTORS OF AMERICA,

INC., IN SUPPORT OF PETITIONER

Charles J. Cooper*

Michael A. Carvin

Susan E. Morley

McGuire, Woods, Battle &

Michael E. Kennedy Boothe

Associated General Contractors The Army and Navy Club

of America, Inc. Building

1957 E Street, N.W. 1627 Eye St., N.W.

Washington, D.C. 20006 Suite 1000

202/393-2040 Washington, D.C. 20006

202/857-1700

*Counsel of Record

————

Balmar Legal Publishing Division, Washington, D.C., 20005, (202) 682-9800

45 |

TABLE OF CONTENTS

COT EI Boe wee ccc ec cces ii

INTEREST OF AMICIISCURIAE ............ 1

SUMMARY OF ARGUMENT .............. 2

lg I I 3

A. STRICT SCRUTINY APPLIES TO THE

COMMISSION’S RACIALLY PREFERENTIAL

ee Ee ETT ea Pee 9

B. THE COMMISSIONS’ RACIAL PREFERENCES

ARE NOT JUSTIFIED BY A COMPELLING

GOVERNMENTAL INTEREST ........ 14

C. THE COMMISSION’S POLICY IS NOT

NARROWLY TAILORED ........... 27

GPE 6 BU wid bs UC WE eevee vewves 29

TABLE OF AUTHORITIES

CASES PAGE

Arizona Governing Committee v. Norris,

EE ee 23, 24

Arkansas Writers’ Project, Inc. v. Ragland,

ES 16

Bakke v. Regents of University of California,

ERS I 24

Batson v. Kentucky, 476 U.S. 79 (1986) ......... 25

Bazemore v. Friday, 478 U.S. 385 (1986) ........ 7,18

Beaumont Branch of the NAACP v. FCC,

854 F.2d 501 (D.C. Cir. 1988) ........... 25

Boos v. Barry, 108 S. Ct. 1157 (1988) .......... 16

Bowsher v. Synar, 478 U.S. 714 (1986) ......... 10

Califano v. Goldfarb, 430 U.S. 199(1977) ....... 13, 24

Califano v. Webster, 430 U.S.313 (1977) ........ 13

Castaneda v. Partida, 430 U.S.402(1977) ....... 26

City of Cleburne v. Cleburne Living Center,

EEE eee 5

City of Los Angeles Depart. of Water and Power v.

Manhart, 435 U.S. 702 (1978) ........... 23, 24

City of Richmond v. J.A. Croson Co.,

__US.___, 109 S. Ct. 706 (1989) ........ passim

Craig v. Boren, 429 U.S. 190(1976) .......... 13, 23

DeFunis v. Odegaard, 416 U.S.at342 ......... 19

Dunn v. Blumstein, 405 U.S. 330 (1972) ......... 8

Duren v. Missouri, 439 U.S. 357 (1979) ......... 25

Edwards v. Aguillard, 482 U.S.578 (1987) ....... 15

FCC v. NCCB, 436 U.S. 775 (1978) ........... 20

Frontiero v. Richardson, 411 U.S.677(1973) ..... 5, 13, 24

Fullilove v. Klutznick, 448 U.S. 448 (1980) ....... passim

iii

CASES (Continued )

Garrett v. FCC, £13 F.2d 1056 (D.C. Cir. 1973),

cert. denied, 419 U.S. 986 (1974). .... 2.0...

Grosjean v. American Press Co.,

PU aca ber

Hampton v. Mow Sun Wong, 426 U.S. 88 (1976) ... .

Harris v. McCrae, 448 U.S. at297............

Hirabayashi v. United States, 320 U.S. 81 (1943) .

Katzenbach v. Morgan, 384 U.S. 641 (1966) ......

Korematsu v. United States, 323 U.S. 214 ( 1944) ...

Kramer v. Union Free School District,

Local 28, Sheetmetal Workers International Association

v. EEOC, 478 U.S. 421 (1986) ...........

Local Number 93, International Association of

Firefighters v. City of Cleveland,

AG GN

Matthews v. Lucas, 427 U.S. 495 (1976) ........

McCleskey v. Kemp, 481 U.S. 279 (1987) ........

McLaughlin v. Florida, 379 U.S. 184 (1964) ......

Minneapolis Star and Tribune Co. v. Minnesota

Commission of Revenue, 460 U.S. 575 (1983) . .

Mississippi University for Women v. Hogan,

i ,

Office of Com. of United Church of Christ v. FCC,

WP 6k cv cc hk eee

Orr v. Orr, 440 U.S. 268 (1979) .............

Palmore v. Sidoti, 466 U.S. 429 (1984)

Red Lion Broadcasting Co. v. FCC,

Roberts v. United States Jaycees,

PAGES

4,5, 24

CASES (Continued) PAGE

SEC v. Chenery Corp., 332 U.S. 194 (1947) ....... 15

Shapiro v. Thompson, 394 U.S. 618 (1969) ....... 8

Shelley v. Kraemer, 334 U.S.1(1948) .......... 4

Sherbert v. Verner, 374 U.S. 398 (1963) ......... 15

Shurberg Broadcasting of Hartford v. FCC,

876 F.2d 902 (D.C. Cir. 1989) ........... passim

Smith v. Board of Education, 365 F.2d 770 (1966) ... 26

South Carolina v. Katzenbach, 383 U.S. 301 (1966) .. 11

Steele v. FCC 770 F.2d 1192 (D.C. Cir. 1985) vacated

GE Se SoS a eo ER! 0c cee

Syracuse Peace Council v. FCC, 867 F.2d 654

GE SE 7. e's os ek oid) 50h e000 60 ©

TV 9 Inc. v. FCC, 495 F.2d 929 (D.C. Cir. 1973) .... 9, 21

Taylor v. Louisiana, 419 U.S.522(1975) ........ 25

United States v. Brookridge Farm, 111 F.2d 461

a ee ee ee ee 2

United States v. Carolene Products Co.,

pe 4

United States v. Klein, 80 U.S. (13 Wall.) 128 (1871) . . 10

United States v. Paradise, 480 U.S. 149 (1987) ..... 6

University of California Regents v. Bakke, .

ES passim

Ward v. Rock Against Racism, __ U.S. ___,

SUP ec cc ce et os 4,8

Washington v. Davis, 426 U.S. 229(1976) ....... 18

Waters Brvadcasting Corp., 91 FCC 2d 1260 (1982),

aff d., West Michigan Broadcasting Corp. v. Federal

Communications Commission, 735 F.2d 601 (D.C.

Cir. 1984), cert. denied, 470 U.S. 1027(1985) .. 21

Weber v. Aetna Casualty and Surety Co.,

GRD Gee eee eee ee ee 23

CASES (Continued )

Weinberger v. Wiesenfeld, 420 U.S. 636 (1975)... ..

Wengler v. Druggists Mutual Insurance Co.,

ee OE

Williams v. Rhodes, 393 U.S. 23(1968) .........

Winter Park Communications v. FCC, 873 F.2d 347

SD PU cs ck he WR Oe WR vee klacc

Wygant v. Jackson Board of Education, 476 U.S. 267

(1986), reh’d denied, 106S.Ct.3320 .......

STATUTES

Commission's Comparative Licensing, Distress Sales

and Tax Certificate Policies Premised on Racial,

Ethnic or Gender Classifications, 52 Fed. Reg. 596

os ee a ae

H.R. Conf. Rep. No. 765, 97th Cong.

ree

PAGES

12, 14, 24

passim

No. 89-453

In the

Supreme Court of the United States

October Term, 1989

METRO BROADCASTING, INC., Petitioner

Vv.

FEDERAL COMMUNICATIONS COMMISSION, Et Al.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF AMICUS CURIAE OF ASSOCIATED

GENERAL CONTRACTORS OF AMERICA,

INC., IN SUPPORT OF PETITIONER

The Associated General Contractors of America, Inc., with the

written consent of the parties, respectfully submits this brief as Amicus

Curiae in support of the petitioner. The letters of consent have been

filed separately herewith.

INTEREST OF AMICUS CURIAE

The Associated General Contractors of America, Inc. (“AGC”)

is a private, non-profit trade association founded in 1918. AGC

regularly represents the interests of the construction industry

throughout the United States. AGC counts approximately 8,000 of

the nation’s leading general construction contractors among its ap-

proximately 32,500 members. These contractors are engaged in all

forms of commercial construction and are responsible for most of the

nation’s highways, bridges, commercial buildings, industrial

facilities, and municipal utilities. AGC has 102 local chapters, repre-

senting each of the 50 states. AGC members perform a very substan-

tial amount of construction for many federal agencies.

AGC represents its members in judicial proceedings, in the

United States Congress, and before federal Executive agencies. AGC

members have a great interest in public contracting policies and

procedures because they are directly engaged in the construction and

reconstruction of most of the nation’s infrastructure. As an amicus

curiae, AGC filed a brief in the Fourth Circuit in J.A. Croson Co. v.

City of Richmond, 779 F.2d 181 (4th Cir. 1986), and in this Court in

Fullilove v. Klutznick, 448 U.S. 448 (1980). AGC chapters have been

parties in several related cases, including Michigan Road Builders

Ass'n. Inc. v. Milliken, 834 F.2d 583 (6th Cir. 1987), aff'd., 109 S. Ct.

1333 (1989) and Associated General Contractors of California, Inc.

v. City and County of San Francisco, 813 F.2d 922 (9th Cir. 1987).

AGC’s long-standing policy is to provide strong support for

open, competitive bidding for public construction contracts. The

purpose of competitive bidding, and AGC’s related policy, “is to give

all persons equal rights to compete for Government contracts; to

prevent unjust favoritism, or collusion or fraud in the letting of

contracts for the purchase of supplies; and thus to secure for the

Government the benefits which arise from competition.” United

States v. Brookridge Farm, 111 F.2d 461, 463 (10th Cir. 1940).

Notwithstanding the merits of competitive bidding, the federal

government has begun to move away from that impartial system.

Federal agencies have woven a large and increasing number of racial

criteria into public construction contracts. AGC is concerned that a

decision to sustain the Federal Communication Commission’s policy

would encourage federal agencies and Congress itself to perpetuate

these racial classifications. This case directly touches the national

concerns of an industry burdened by a resurgence of racial classifica-

tions over the last decade.

SUMMARY OF ARGUMENT

The Court reaffirmed last Term that the right to be free from

invidious discrimination is not a privilege bestowed by the govern-

ment on certain select groups, but is an inalienable right shared by

each citizen in a Nation dedicated to the primacy of the individual and

equality under law. This bedrock guaranty of nondiscrimination, so

noble in principle, finds itself sacrificed in practice. The constitutional

prohibition against governmental prejudgment on those paradigms of

the invidious — race and ethnicity — has given way not to any claim

that temporary adjustment is necessary to ensure equal treatment of

others, but to crude stereotype and naked social engineering.

Specifically, the Federal Communications Commission (“Com-

mission”), which has concededly never discriminated against

Hispanics or the other groups receiving this rigid racial preference,

has now determined that discrimination designed to increase the

“representation” of certain groups in the broadcasting industry serves

society’s interest in making the airwaves more “diverse.” We contend

that use of racial distinctions for this purpose cannot be countenanced,

but must be reserved for those rare situations where it is essential to

extinguish an egregious and intransigent pattern of discriminatory

conduct. In all events, the principle of nondiscrimination surely

cannot be sacrificed in circumstances where, as here, there is a

nonracial alternative that will directly advance the government’s

purported interest. This analysis obtains notwithstanding that the

racial discrimination here is being practiced by the federal govern-

ment, particularly since that discrimination is not remedial, is not

attributable to Congress, and is not imposed pursuant to Section 5 of

the Fourteenth Amendment.

ARGUMENT

Last Term’s seminal decision in City of Richmond v.J.A. Croson

Co.,__ U.S.__, 109. Ct. 706 (1989), gave voice, firm and clear,

to certain basic p' precepts about the nature and meaning of equality

under the law — our Constitution’s solemn promise to every in-

dividual.!_ When measured against any one of these fundamental

precepts, the Commission’s racially preferential licensing policy must

fall.

' These principles had been reflected in earlier decisions of the Court, but had

never before commanded a majority opinion.

First, and most fundamentally, the fact that an official racial

Classification, such as the Commission’s licensing policy in this case,

disadvan nonminorities rather than a “discrete and insular

minorit{y]"* is without constitutional significance. Croson “reaf-

firm[ed] the view expressed by the plurality in Wygant that the

standard of review under the Equal Protection Clause is not dependent

on the race of those burdened or benefitted by a particular classifica-

tion.”> Croson, 109 S.Ct. at 721. Accordingly, “racial classifications

of any sort must be subjected to ‘strict scrutiny’.” Wygant v. Jackson

Board of Education, 476 U.S. 267, 285 (1986) (O’Connor, J., concur-

ring). See Croson, 109 S.Ct. at 721; Ward v. Rock Against Racism,

__ US. _, 109 S. Ct. 2746, 2758 n. 6 (1989); Mississippi Univer-

sity for Women v. Hogan, 458 U.S. 718, 723-724 n. 9 (1982). Thus,

“to pass constitutional muster, [racial classifications] must be justified

by a compelling governmental interest and must be ‘necessary . . . to

the accomplishment’ of [their] legitimate purpose.” Palmore v. Sidoti,

466 U.S. 429, 432-433 (1984), quoting McLaughlin v. Florida, 379

U.S. 184, 196 (1964).

Croson also reaffirmed the principle that a racial preference is

subject to an extraordinarily demanding standard of justification

regardless of the relative “ability of different groups to defend their

inter’ s in the representative process.” Croson, 109 S. Ct. at 722.

This principle follows from the fact that “the rights created by the first

section of the Fourteenth Amendment are, by its terms, guaranteed to

the individual. The rights established are personal rights.” Jd. at 721,

quoting Shelley v. Kraemer, 334 U.S. 1, 22 (1948).4 That being so,

“[t}he guarantee of equal protection cannot mean one thing when

applied to one individual and something else when applied to a person

? United States v. Carolene Products Co., 304 U.S. 144, 153 n.4 (1938).

> See also Wygant v. Jackson Board of Education, 476 U.S. 267, 279-80 (1986);

id. at 285, 286 (O'Connor, J., concurring); University of California Regents v. Bakke,

438 U.S. 265, 299 (1978) (opinion of Powell, J.).

* See also Bakke, 438 U.S. at 299 (“{I}t is the individual who is entitled to judicial

Protection against classifications based upon his racial or ethnic background because

such distinctions impinge upon personal rights, rather than the individual only

because of his membership in a particular group.”).

of another color.” Croson, 109 S. Ct. at 721, quoting University of

California Regents v. Bakke, 438 U.S. 265, 289-90 (1978).5

Moreover, race and ethnicity are “factor[s] having no relation to

individual worth.” Croson, enteric es

at 298.6 Accordingly, a government policy that takes account of an

immutable trait that says nothing about the needs, abilities, interests,

or aspirations of individual citizens, is quite naturally viewed with

suspicion. McCleskey v. Kemp, 481 U.S. 279, 336 (1987) (Brennan,

J., dissenting) (state actions suspect when based on the “categorical

assessment of the worth of human beings . . . insensitive to whatever

qualities the individuals in question may possess”).

In short, Croson plainly establishes that the Constitution's equal

protection guaranty protects not classes, but people, prohibiting the

official burdening of any individual on the basis of racial classifica-

tions that “are by their very nature odious to a free people whose

institutions are founded upon the doctrine of equality.” Hirabayashi

v. United States, 320 U.S. 81, 100 (1943).

> Since the “core purpose of the Fourteenth Amendment was to do away with all

governmental imposed discrimination based on race,” the equal protection of laws

must mean that any official racial discrimination — regardless of the victim's race —

is almost always invalid. Palmore, 466 U.S. at 432. See also McCleskey v. Kemp,

481 U.S. 279, 340-41 (1987), (Brennan, J., dissenting) (“Race is a consideration

whose influence is expressly constitutionally proscribed. We have expressed a moral

commitment, as embodied in our fundamental law, that this specific characteristic

should not be the basis for allotting burdens and benefits.”), Korematsu v. United

States, 323 U.S. 214, 235-40 (1944), (Murphy, J., dissenting) (“To give constitutional

sanction to [racial discrimination is] to destroy the dignity of the individual and to

encourage and open the door to discriminatory actions against other minority groups

in the passions of tomorrow.”), cited in Croson, 109 S. Ct. at 724.

® See also id. at 727, quoting Fullilove, 448 U.S. at 533-35 (“Because racial

characteristics so seldom provide a relevant basis for disparate treatment, and because

classifications based on race are potentially so harmful to the entire body politic, it is

especially important that the reasons for any such classification be clearly identified

and unquestionably legitimate.”); Matthews v. Lucas, 427 U.S. 495, 50S (1976)

(illegitimacy “bears no relation to the individual's ability to participate in and

contribute to society”); Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality

opinion) (“{T]}he sex characteristic frequently bears no relation to ability to perform

or contribute to society.”); City of Cleburne v. Cleburne Living Center, 473 U.S. 432,

440 (1985) (race and national origin are “seldom relevant to the achievement of any

legitimate state interest”); id. at 451 (Stevens, J., concurring).

Since all individuals have the same constitutional right to be free

from official racial and ethnic discrimination, and since race and

ethnicity say nothing about an individual's worth, the question arises

whether a government can ever have a legitimate, let alone compell-

ing, interest in distinguishing among its citizens on the basis of such

inherently irrelevant traits. The answer, according to Croson, is that

“[iJn the extreme case, some form of narrowly tailored racial

preference might be necessary to break down patterns of deliberate

exclusion.” Croson, 109 S. Ct. at 729. In other words, government

may take account of the extent to which one’s race would operate as

an impediment to his full enjoyment of the relevant government

program or benefit, absent some race-conscious countermeasure. In

such narrow circumstances, the government is not suggesting that it

attaches any importance to skin color, but rather that it has been

compelled to make reference to color because the failure to do so

would leave in place intransigent exclusionary barriers rooted in past

intentional discrimination.

For this reason, the Court has never upheld race-conscious action

unless it was necessary to eliminate the lingering exclusionary barriers

created by an entrenched pattern of egregious official discrimination.

See Local 28, Sheetmetal Workers International Ass'n. v. EEOC, 478

U.S. 421, 445, 474 (1986) (racial preference “necessary in order to

effectively enforce Title VII [by] . . . dismantl{ing] prior patterns of

employment discrimination and . . . prevent[ing]} discrimination in the

future” by a defendant who “has engaged in persistent or egregious

discrimination”); United States v. Paradise, 480 U.S. 149, 171-172

(1987) (“long term, open and pervasive discrimination”); Fullilove,

448 U.S. at 478 (minority business program directed at “the existence

and maintenance of barriers to competitive access which have their

roots in racial and ethnic discrimination”); id. at 483.

In these circumstances, the government is not distinguishing

between minorities and nonminorities on the basis of race as such, but

on the basis of their dissimilar likelihood of being excluded, absent

racial countermeasures, by the discriminatory barriers that remain in

place. Croson, 109S. Ct. at 722. Conversely, this Court has emphati-

cally rejected every other purported justification for race-conscious

measures. The Court has consistently ruled that government may not

favor an individual in order to increase the representation of his racial

group so that it more nearly mirrors the group's representation in the

community. Any such attempt to “correct” “underrepresentation” is

nothing more than “discrimination for its own sake.” Bakke, 438 U.S.

at 307.

For essentially the same reason, the Court has rejected as il-

legitimate the goal of remedying “societal discrimination.” Croson,

109 S. Ct. at 723.8 Since the “societal discrimination” rationale is

indifferent to whether there was or is any discrimination in the par-

ticular program, it authorizes the government to introduce race into a

program as an eligibility criteria for the first time even where there

have been no race-based barriers to minority adva »Cement, or at least

none that cannot be overcome without disadvantaging nonminorities

on a racial basis. Accordingly, the Court has rejected societal dis-

crimination as “too amorphous a basis for awarding a racially clas-

sified remedy,” for it would permit a court to “uphold remedies that

are ageless in their reach into the past and timeless in their ability to

affect the future.” Wygant, 476 U.S. at 276. See Croson, 109 S.Ct. at

723.

The Court has similarly rejected any standard that equates a

statistical imbalance in the relevant program with lingering dis-

crimination. It is “completely unrealistic,” the Court has noted, to

assume that, absent discrimination, racial or ethnic proportionality

would result in a field of endeavor; thus an imbalance provides no

warrant for employing racial preferences. Croson, 109 S. Ct. at 728.

In keeping with the severity of the strict scrutiny standard for

testing racial preferences, the Court has imposed an equally severe

” See also Croson, 109 S. Ct. at 728 (“{It] cannot be said to be mer

to an |, except perhaps outright racial balancing.”), Local 28, 4 S. at

Powell, 1. concurring) (“A court may not choose a remedy for the purpose of

attaining a particular racial balance; rather, remedies properly are confined to the

elimination of proven discrimination.”), id. at 487 (O'Connor, J., concurring) (“The

imposition of a quota is therefore not truly remedial, but rather amounts to a

requirement of racial balance.”); Bazemore v. Friday, 478 U.S. 385 (1986).

8 See Wygant, 476 U.S. at 274, 276 (“prior discrimination by the governmental

unit involved” is required); Local Number 93, International Ass'n. of Firefighters v.

City of Cleveland, 478 U.S. 501, 532 (1986) (White, J., dissenting) (“An employer

may adopt . . . racially discriminatory hiring or promotion practices . . . only as a

remedy for its own prior discriminatory practices.”).

evidentiary burden on those who claim that their activities are or have

been infested with a “pattern of deliberate exclusion” that needs to be

broken down through new discrimination. First, “particularized find-

ings” of past invidious discrimination in the program must be made.

Id. at 723, quoting Wygant, 476 U.S. at 276. Such findings must be

supported by a “strong basis in evidence.” /d. at 724, quoting Wygant,

476 U.S. at 277.9

An equally impor nt safeguard against the premature use of

race-conscious measure, — that is, their use other than as a necessary

last resort — is the requirement of narrow tailoring. The key require-

ment in this regard is that defendant show that “less intrusive alterna-

tives,” such as victim-specific relief, are unavailable or unavailing. !

The Commission’s racially preferential licensing policy plainly

fails every element of the “strict scrutiny” test. The Commission’s

blanket racial preferences are neither designed nor necessary to

remedy any discrimination anywhere identified, and the purported

nonremedial justification is not only facially invalid and devoid of any

limiting principle, but amounts to little more than a crude racial

Stereotype. Further, for the reasons we discuss presently, it is quite

clear that this analysis obtains here notwithstanding the fact that the

federal, rather than a state, government is engaging in this invidious

discrimination.

* The minimum showing from which an inference of discriminatory exclusion

could arise is one that establishes a significant statistical disparity between the number

of qualified minorities willing and able to participate in the activity and the number

of minorities actually participating. Croson, 109 S. Ct. at 729.

'° itis well established that since the use of race must be “necessary” to accomplish

a compelling purpose, existence of a less discriminatory method renders the racial

classification invalid. See, e.g., Croson, 109 S. Ct. at 728; Wygant, 476 U.S. at 279

n. 6 (“[T)he classification at issue must ‘fit’ with greater precision than any alternative

means.”); Ward v. Rock Against Racism, __ U.S. __ 109 S. Ct. 2746, 2758, n. 6

(1989) (Croson “is a strict scrutiny case” and “leas! intrusive means” analysis

therefore applies); Fullilove, 448 U.S. at 537 (Stevens, J., dissenting) (“Racial

classifications are simply too pernicious to permit any but the most exact connection

between justification and classification.”); Dunn v. Blumsiein, 405 U.S. 330, 343

(1972); Kramer v. Union Free School District, 395 U.S. 621, 627 (1969); Shapiro v.

Thompson, 394 U.S. 618 (1969).

A. Strict Scrutiny Applies To The Commission’s Racially

Preferential Policy

bap encener dear sshare ores Age

affirmed in Croson applies, and applies in the same way, to

classification contained in this federal program. Some members of

the Court have indicated that the “unique remedial powers of Congress

under Section 5 of the Fourteenth Amendment” allow the federal

legislature somewhat broader latitude in invoking race-conscious

remedies than is available to states. Croson. 109 S. Ct. at 718-719."

Whether and to what extent this is true need not be resolved here,

because the Commission’s racial preference scheme is not remedial,

is not attributable to Congress, and is certainly not enacted under

Section 5 of the Fourteenth Amendment.

1. As an initial matter, we note that Congress did not enact the

policy at issue here. It was, rather, established by the Commission, or

more accurately, by the Court of Appeals for the District of Columbia

Circuit, which required the Commission to impose these racial

preferences against its wishes. See TV 9 Inc. v. FCC, 495 F.2d 929

(D.C. Cir. 1973); Garrett v. FCC, 513 F.2d 1056 (D.C. Cir. 1973),

cert. denied, 419 U.S. 986 (1974). Congress’ exclusive role in the

matter has been to stop the Commission, through an appropriations

rider, from determining whether any empirical or other support existed

for either its remedial or diversity rationale — support that the Com-

mission conceded was theretofore entirely lacking. See Winter Park

Communications v. FCC, 873 F.2d 347, 363 (D.C. Cir. 1989) (dissent-

ing opinion).

'' Justice O'Connor and Justice White indicated in Croson that, under Fullilove,

some amount of additional deference is owed to Congress’ remedial efforts under

Section 5. Id. at 718-721. Justice Kennedy did not join this portion of the opinion

and suggested that this rule is a “difficult proposition.” Jd. at 734. Justice Scalia

believes that uniform standards should apply to all racial preferences. /d. at 735. The

Chief Justice's views are not entirely clear; although he joined the relevant portion of

Justice O'Connor's opinion in Croson, he also joined Justice Stewart's dissent in

Fullilove, which expressly rejected the notion that race-conscious action is somehow

entitled to less searching scrutiny because it is enacted by Congress. Fullilove, 448

US. at 523. Finally, the dissenters in Croson also appeared to reject the notion that

different standards apply to the actions of federal and state governments in this area.

Croson, 109 S. Ct. at 755.

Passing the point that this congressional interference with the

Commission’s “execution of the laws” is itself of doubtful constitu-

tional validity,'? the sum total of Congress’ involvement in the issue

was to force a “mental standstill” at the Commission while the agency

was in the midst of belatedly seeking to discern for itself whether its

racial discrimination had any rational foundation. /d. at 364. While

the funding rider obviously had the effect of freezing the

Commission’s policy in place, and was apparently intended as a post

hoc endorsement of the status quo ante by those few legislators who

may have known of its existence, the fact remains that the policy

thereby frozen was the Commission's, not Congress’.

Thus, no deference is owing to a congressional judgment here,

especially since Congress’ only judgment was to “endorse” a racial

diversity policy by preventing the relevant agency from examining

whether there was any factual basis for the policy. Winter Park, 873

F.2d at 351.'3_ A federal administrative agency must have a par-

ticularly strong and explicit mandate from Congress if it seeks to cloak

itself with the federal legislative power when defending a policy that

raises serious equal protection concerns. Hampton v. Mow Sun Wong,

426 U.S. 88, 114, n. 46 (1976) (In light of discriminatory immigration

policy, the Court “require[d] a much more explicit directive from

either Congress or the President before accepting the conclusion that

the political branches of Government would consciously adopt a

policy raising the constitutional questions presented by this rule.”).

On its own account, the Commission is obviously entitied to no

deference beyond that afforded state or local governments, since it

clearly possesses no civil rights expertise. See Fullilove, 448 U.S. at

468; id. at 515-516 and n.14 (Powell, J., concurring); Bakke, 438 U.S.

at 309-310; Wygant, 476 U.S. at 292 (O’Connor, J., concurring)

(“competent” authority required). In fact, the federal department

having such expertise, the Department of Justice, has concluded in this

very case that the Commission’s policy is unconstitutional. See

Winter Park, 873 F.2d at 352.

"2 Bowsher v. Synar, 478 U.S. 714, 736 (1986). See United States v. Klei . 80

U.S. (13 Wall.) 128 (1871).

'? Of course, it was only after Congress had announced that there was a nexus

between race and diversity that the Congressional Research Service completed the

FCC study on whether some such support could be found.

2. Moreover, even assuming that the Commission’s policy is

attributable to Congress, it clearly is not attributable to any congres-

sional action taken pursuant to Section 5 of the Fourteenth Amend-

ment. As a result, there is no basis for subjecting the Commission’s

racially preferential policy to review less strict than that applied to the

city in Croson.

Section 5 of the Fourteenth Amendment is “a positive grant of

legislative power authorizing Congress to exercise its discretion in

determining whether and what legislation is needed to secure the

guarantees of the Fourteenth Amendment.” Croson, 109S. Ct. at 719,

quoting Katzenbach v. Morgan, 384 U.S. 641, 651 (1966) (hereinafter

“Morgan”). Since the Fourteenth Amendment, by its terms, applies

only to the states, it obviously cannot provide Congress with any

remedial power, unique or otherwise, concerning the actions of the

federal government.

Section 5 gives Congress special competence and authority over

the affairs of state governments in matters potentially affecting equal

protection guaranties. Under Section 5, Congress has the ability to

enforce the scope of the Fourteenth Amendment’s nondiscrimination

principle, a role that is in other contexts performed exclusively by the

judiciary. See Morgan, 384 U.S. at 651; South Carolina v. Katzen-

bach, 383 U.S. 301, 326 (1966) (enforcement power under Section 2

of the Fifteenth Amendment). And Congress’ “power to ‘enforce’

may at times also include the power to define situations which Con-

gress determines threaten principles of equality and to adopt

prophylactic rules to deal with those situations.” Croson, 109 S. Ct.

at 719 (emphasis in original). As a result of Congress’ unique role of

insuring the states’ compliance with the Fourteenth Amendment, the

courts give special deference to congressional efforts to enforce this

nondiscrimination guaranty.

In the context of race-conscious classifications, the lead opinion

of Fullilove concluded that congressional imposition of racial “goals”

on states in connection with their federally funded contracting pro-

gram was due special deference as an exercise of Congress’ Section

5 authority. Fullilove, 448 U.S. at 483-484. Since Congress had

mandated these race-conscious measures, and since they were directed

at historically entrenched discriminatory barriers existing in the state

programs, the plurality was more inclined to presume that the policy,

taken as a whole, was generally remedial in purpose. Thus, because

Congress has a “specific constitutional mandate to enforce the dictates

of the Fourteenth Amendment,” the Court accords special deference

to Congress’ views concerning the measures necessary or appropriate

to prevent or remedy potential violations of the Amendment. Croson,

109 S. Ct. at 719.

But Congress has no such special competence, and thus deserves

no special deference (save that normally accorded a coordinate branch

of government) where, as here, it is not redressing any perceived

discrimination by the states, but is simply using a suspect criterion in

a purely federal program enacted pursuant to the commerce or spend-

ing powers. When there is no issue concerning the states’ compliance

with the Fourteenth Amendment, Congress cannot invoke its role

under Section 5 as an enforcer to justify its racially preferential

policies; it is only a discriminator. In this context, the Constitution’s

equal protection guaranties operate solely as “an explicit constraint”

on federal power, not as a source of power. Croson, 109 S. Ct. at 719.

Since Congress in these circumstances wears only one hat with respect

to the Constitution’s nondiscrimination principle, it is judged on the

same terms as a state government: it has no greater authority to rely

on “odious” criteria as a means of conferring public benefits or

burdens.!4

Any doubts in this regard are dispelled by the treatment given

by this Court to Congress’ use of suspect or quasi-suspect classifica-

tions in federal programs. The Court has repeatedly rejected

Congress’ use of gender-based classifications in a variety of contexts

without giving any special deference to Congress’ remedial or fact-

finding powers. Many of these statutes were intended by Congress to

provide a “benign” or “remedial” advantage to women. See, e.g.,

Weinberger v. Wiesenfeld, 420 U.S. 636 (1975); Frontiero v.

'* See, e.g., Williams v. Rhodes, 393 U.S. 23, 29 (1968) (“But the Constitution is

filled with provisions that grant Congress or the States specific power to legislate in

Certain areas, these granted powers are always subject to the limitation that they may

not be exercised in a way that violates other specific provisions of the Constitution.”);

Hogan, 458 U.S. at 732-33 (“Although we give deference to congressional decisions

and classifications, neither Congress nor a State can validate a law that denies the

rights guaranteed by the Fourteenth Amendment.”).

Richardson, 411 U.S. 677 (1973); Califano v. Webster, 430 U.S. 313

(1977) (per curiam); Califano v. Goldfarb, 430 U.S. 199 (1977).

Nonetheless, in each such case the Court independently examined and

rejected the factual assumptions underlying these classifications.

While Congress’ gender-based distinctions may have been empirical-

ly justified as a general matter, they were nonetheless impermissibly

overbroad in that they used gender as a “proxy for other, more germane

bases of classification.” Craig v. Boren, 429 U.S. 190, 198 (1976).

See also Wiesenfeld, 420 U.S. at 645; Goldfarb, 430 U.S. at 205-206;

Frontiero, 411 U.S. at 690. Indeed, two such cases, Wiesenfeld and

Frontiero, were cited in Croson as examples of cases in which the

Court will not defer to congressional recitation of a benign or

legitimate purpose. Croson, 109 S. Ct. at 724, 729.

It is true that the Court did accede in one case to this sort of

generalized congressional “fact finding” in a nonremedial setting, but

Croson’s citation of that regrettable decision’s dissent reflects that in

recent times “blind judicial deference to legislative or executive

pronouncements of necessity has no place in equal protection

analysis.” See Korematsu v. United States, 323 U.S. 214, 235-240

(1944) (Murphy, J., dissenting); Croson, 109 S. Ct. at 725.

Further, quite apart from the extent and sources of Congress’

remedial power in the area of civil rights, Congress surely has no such

power to authorize a racial preference where the preference serves no

remedial purpose. Since, for the reasons discussed more fully below,

the congressional policy here was not claimed to be and could not

reasonably be viewed as “remedial,” and since there is nothing unique

about Congress’ ability to discern the relationship, if any, between

minority ownership and content of programming, strict scrutiny ap-

plies with full force to the Commission’s discriminatory licensing

policy. See Shurberg Broadcasting of Hartford, Inc. v. FCC, 876 F.2d

902, 923 (D.C. Cir. 1989) (opinion of Silberman, J.).'5

™ Sean tp enstaeh etatnntty Os Rae Se

the | ion analysis would not markedly change and certainly not in any way

on eaten aalnaaae ition of the case. A comparison of that case and Croson

reveals that Congress differs from other government actors only to the extent that it

is relieved of the responsibility to make “specific findings of discrimination to engage

in race-conscious relief.” Croson, 109 S. Ct. at 719. (Three Justices comprising the

Fullilove majority would have applied a more lenient standard, but this analysis was

Finally, if the Court nonetheless reaches the question of

Congress’ remedial authority, it should reaffirm that “Congress’

power under § 5 . . . ‘is limited to adopting measures to enforce the

guarantees of the [A]mendment; § 5 grants Congress no power to

restrict, abrogate, or dilute these guarantees.’” Hogan, 458 U.S. at

732, quoting Morgan, 384 U.S. at 651 n. 10. Since the equal protec-

tion guaranties of the Fifth and Fourteenth Amendments are “precisely

the same” (Wiesenfeld, 420 U.S. at 638 n.2), there is no basis in law

or logic for holding that an “equal protection violation when enacted

by a State becomes transformed to an equal protection guarantee when

enacted by Congress.” Croson, 109 S. Ct. at 734 (Kennedy, J.,

concurring).!©

B. The Commission’s Racial Preferences Are Not

Justified By A Compelling Governmental Interest

There are two purposes potentially underlying the Commission’s

racial preferences — to provide a remedy for past discrimination and

to promote “diversity.” Neither suffices, however, because the Com-

premised on the view that equal protection safeguards differ for minorities and

nonminorities, which is contrary to the holding in Croson.) Congress must, however,

have a “strong basis in evidence” before it embarks on any such remedial effort.

Croson, 109 S.Ct. at 724; Fullilove, 448 U.S. at 477-78 (“abundant evidence”).

Moreover, both Fullilove and Croson recognize that Congress’ identification of a

national problem does not provide a basis for implementing a remedial program at the

local level in a race-conscious manner avsent an additional showing that each local

application is genuinely remedial — that is, \imited to those who have actually been

harmed by prior local discrimination. Since national programs of the sort established

in Fullilove must “explicitly recogniz(e] that the scope of the problem would vary

from market area to market area,” each locale must “identify the discrimination it

seeks to remedy in its own jurisdiction.” Croson, 109 S. Ct. at 726-27. In this regard,

the Fullilove plurality also stressed that any preference should be given only to those

firms “whose competitive position is impaired by the effects of disadvantage and

discrimination.” Id. at 471; see also id. at 464. As Croson noted, “the Chief Justice

indicated that without this fine tuning to remedial purpose, the statute would not have

‘pass[ed] muster."” Croson, 109 S. Ct. at 718, quoting Fullilove, 448 U.S. at 487.

Since Congress did not possess any evidence remotely identifying any discrimination

by the Commission or even in the broadcast industry generally, it plainly had no

remedial justification under Fullilove.

"© This Court has repeatedly held that Congress’ ability to enforce equal protection

guaranties does not authorize it to rachet down those same guaranties. E.g., Morgan,

384 U.S. at 651 n.10.

mission has admitted that its racial preferences do not serve any

remedial goal, and this Court has made clear that such discriminatory

devices cannot be justified by any nonremedial goal. We will examine

each point in tum.

1. The Commission’s disavowal of any intended remedial pur-

pose should foreclose inquiry into this basis for sustaining its racial

discrimination.'7 In any event, the only statement or evidence con-

ceivably related to discrimination of any kind is the assertion con-

taied in the Congressional Report accompanying establishment of a

racially preferential lottery for broadcast licenses. That report states

that “the effects of past inequities stemming from racial and ethnic

discrimination have resulted in severe underrepresentation of

minorities in the mass media communication, as it has adversely

affected their participation in other sectors of the economy as well.”

H.R. Conf. Rep. No. 765, 97th Cong. 2d Sess. 43 (1982). See also

Shurberg, 876 F.2d at 914-918.

As the Report’s references to “underrepresentation” and “other

sectors of the economy” demonstrates, Congress’ comments con-

cerned at most societal discrimination. Moreover, the cited under-

representation is devoid of probative value because the statistical

benchmark is apparently gross population figures, rather than the

“number of qualified minority [f rms] willing and able to perform.”

Croson, 109 S.Ct. at 729. Nor is there any evidence suggesting past

discrimination by the “particular governmental unit involved.”

Wygant, 426 U.S. at 724. See also Firefighters v. City of Cleveland,

478 U.S. at 532 (White, J., dissenting) (“An employer may . . . engage

in racially discriminatory hiring or promotion practices . . . only as a

remedy for its own prior discriminatory practices.”). Croson reaf-

firmed that such a specific showing of discrimination is constitution-

ally required. '8

T7The Commission has repeatedly disavowed that there is any remedial purpose

underlying its policies. Winter Park, 873 F.2d at 363 (dissenting opinion). When the

Court is applying strict scrutiny or reviewing the action of an administrative agency,

it will not supply an interest not asserted or relied upon by the agency. SEC v. Chenery

Corp., 332 U.S. 194 (1947); Sherbert v. Verner, 374 U.S. 398, 407 (1963); Hogan,

458 U.S. at 730; Edwards v. Aguillard, 482 U.S. 578, 594-595 (1987). Nor, for the

reasons discussed above, did Congress supply the necessary remedial predicate here.

18 The burden is on the defendant to show that its program is narrowly tailored to

serve a compelling government interest. See, e.g., Bakke, 438 U.S. at 311 (“Petitioner

To be sure, Croson stated that government need not blind itself

to the fact that private discrimination in some circumstances may

create “discriminatory exclusion” from government programs as ef-

fectively as if government employees themselves were engaging in

such invidious practices. /d. at 726. In Croson, for example, if “the

City of Richmond had evidence before it that nonminority contractors

were systematically excluding minority businesses from subcontract-

ing Opportunities, it could have taken action to end the discriminatory

exclusion.” /d. at 726. Thus, if the state or local government becomes

a “passive participant” in a system rife with discrimination, it need not

sit back and watch discriminatory actions infect its program. /d. at

720.

Of course, Croson’s recognition that a state should not “exacer-

bate,” “induce,” “encourage,” “assist,” or otherwise become a “joint”

or “passive participant” in private discrimination hardly suggests that

the existence of unrelated private prejudice not tied to the government

program would afford a remedial predicate for racial preferences. !9

Indeed, any more expansive understanding of Croson’s teaching in

this regard would nullify the majority opinion’s repeated, unequivocal

admonition that one organ of government cannot “extrapolate” a

remedial predicate from discrimination unrelated to the program

involved. Id. at 727.

First, as previously indicated, the Croson Court made clear that

a congressional finding of societal discrimination, under either the

Fullilove or Croson standard, does not suffice to authorize racially

preferential action in a particular program. For example, Congress’

finding that there “had been nationwide discrimination in the construc-

tion industry” was of “extremely limited” probative value because

did not carry its burden of demonstrating that it must prefer members of particular

ethnic groups in order to promote better health-care delivery to deprived citizens.”);

Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 230 (1987); Boos v. Barry,

108 S. Ct. 1157, 1164 (1988); Minneapolis Star and Tribune Co. v. Minnesota

Commission of Revenue, 460 U.S. 575, 592-93 (1983); Hogan, 458 U.S. ai 730 n. 16

(1982).

'? Of course, an appropriate governmental body may prevent and punish invidious

- private discrimination without any showing whatever; the requirement of precisely

identifying existing discriminatory exclusion is needed only if the governmental actor

seeks to require or engageffir racial discrimination.

“Congress has made national findings that there has been societal

discrimination in a host of fields.” Jd. at 726-727. The Court also held

that seeking to remedy discrimination in an entire industry swept with

too broad a brush. As the Court put it: “Like the role model theory

employed in Wygant, a generalized assertion that there has been past

discrimination in an entire indus’. y provides no guidance for a legis-

lative body to determine the precise scope of the injury it seeks to

remedy.” Id. at 723.

Nor may geographically removed “findings of discrimir’ -

tion . . . be ‘shared’ from jurisdiction to jurisdiction.” Id. at 727 (“We

have never approved the extrapolation of discrimination of one juris-

diction from the experience of another.”). Similarly, the necessary

finding of “systematic exclusion” from the relevant program is not

satisfied by a finding of discrimination that is geographically related

(i.e., “school desegregation in Richmond”) but “does little to define

the scope of any injury to minority contractors in Richmond or the

necessary remedy.” Croson, 109 S. Ct. at 727. Since such unfocused

or irrelevant findings of discrimination shed no light on what, if any,

exclusionary devices would be confronted today by a minority par-

ticipant in the program, they “could justify a preference of any size or

duration.” /d. at 727.

It is thus “es sential” for a government body, such as the Com-

mission in this case, to supplement any general congressional findings

with specific findings of “discrimination in their own bailiwicks.” Id.

at 727. In this case, as in Croson, there is no evidence that “qualified

minority [applicants] were passed over for [broadcas* licenses].” Id.

at 730. Given the highly structured adjudicaiory procedures that are

used in comparative hearings, as well as the elaborate review process,

it would be most surprising if any such discrimination could seep into

the process undetected by either the Commission or the District of

Columbia Circuit Court of Appeals. Moreover, the private broadcast

industry is not able to influence the access of minority broadcasters to

federal licenses in a manner analogous to the control exercised by

prime contractors in Richmond of minority subcontracting firms. Nor

do broadcasters receive “public dollars” from the Commission. /d. at

720. There is thus no possibility that the Commission will play a role

as a joint participant, analogous to that of the city in Croson, with any

private discriminator bent on excluding minorities. In all events,

neither Congress nor the Commission has referred to any evidence of

racial discrimination in the broadcast industry.

The only barrier identified thus far is that minorities as a rule

have less capital than nonminorities. See Shurberg, 876 F.2d at 914

and n.15. Lack of money can hardly be viewed as a barrier, dis-

criminatory or otherwise, erected by a government program. Cy.

Harris v. McRae, 448 U.S. at 297, 316-317 (1980).29 It is simply one

of many “nonracial factors which would seem to face a member of

any racial group seeking to establish a new business enterprise.” /d.

at 722-723. Croson held that such factors may be addressed only

through “race-neutral devices to increase the accessibility of . . .

opportunities to small entrepreneurs of all races.” /d. at 729.2!

Introducing race into the Commission's selection process would

not affect, let alone remedy, whatever problems minorities tend to

have in getting financing. Indeed, any such preference goes, by

definition, not to the disadvantaged, but to those who already have

sufficient funds to start a television station and to secure necessary

financing. Thus, those minorities “who benefit from the disparate

treatment are those who were ... not ‘needy [ ]’ and who are ‘least

likely to have been victims of . . . discrimination.’” Orr v. Orr, 440

U.S. 268, 282 (1979) (citations omitted). Such a “[race]-based clas-

sification which, as compared to a [race}-neutral one, generates addi-

”° The Commission does not charge fees or otherwise extract consideration for

the valuable broadcast licenses; it simply ensures that applicants have the minimum

financing necessary to operate the station if they receive a license.

“ Moreover, even if the Commission were shown to have taken actions with a

discriminatory effect, remedial action would not be justified, for it is only “deliberate

exclusion” of minorities that supplies a potential remedial predicate. Croson, 109 S.

Ct. at 729 (emphasis added). Accord, Wygant, 476 U.S. at 284 n.13 (“prior, purpose-

ful discrimination”), Local 28, 478 U.S. at 445 (“egregious discrimination”).

Moreover, “findings of a constitutional or statutory violation must be made” before

embarking on any race-conscious scheme. Croson, 109 S. Ci at 729. Since the

Commission is noi subject to any statutory effects tests in its licensing practices, but

only the Constitution's intent standard, it cannot supply the requisite legal violation

absent finding purposeful discrimination. Washington v. Davis, 426 U.S. 229 (1976).

See Bazemore, supra. \n any event, only a most bizarre theory of remedies would

Constitution to “remedy” constitutionally permissible neutral practices that have 2

disproportionate burden.

tional benefits only for those it has no reason to prefer cannot survive

equal protection scrutiny.” Jd. at 282-283.22

The absence of any remedial justification for the Commission’s

discriminatory licensing policy renders it v»~onstitutional. In Croson

five Members of the Court squarely held that “classifications based

on race” are “strictly reserved for remedial settings.” /d. at 721.2> The

Court should reaffirm that holding.

Any nonremedial justification, by definition, injects considera-

tions of race not because it has been made relevant by the prior

invidious discrimination of others, but because government itself has

made it relevant to achieve its own purposes. “[S]uch a result would

be contrary to both the letter and spirit of the constitutional provision

whose central command is equality.” Croson, 109 S. Ct. at 727. See

also DeF unis v. Odegaard, 416 U.S. at 342 (Douglas, J., dissenting)

(“The Equal Protection C!ause commands the elimination of racial

barriers, not their creation in order to satisfy our theory as to how

society ought to be organized.”). But even were it possible to

hypothesize a nonremedial justification without these fatal deficien-

cies, it certainly would not be the one offered by the Commission here,

for inherent in the diversity rationale is the racial stereotyping that

normally typify such nonremedial theories.

gener ence cone ena Are

Spanish-speaking, Oriental, Indian, Eskimo, or Aleut persons any aspect

{Commission's operations].” /d. at 727-728 (emphasis in original). Also as in

Croson, “{t\}he gross over-inclusiveness of [this) racial preference strongly impugns

[any] claim of remedial motivation.” /d. at 728.

?3 The Croson majority thus acknowledged the “requirement that [a defendant]

identify the discrimination it seeks to remedy” as the sine qua non of any official

race-conscious measure. /d. at 727 (emphasis added). The Court also stated that the

City of Richmond had violated the Constitution “because [it] failed to identify a need

for remedial action.” /d. at 730. a ee ae

mode!” theory was rejected in Wygant precisely because it “had no to some

basis for believing a constitutional or statutory violation had occurred.” Id. at 723.

See id. at 730-731 n. 1 (Stevens, J., concurring) (“But unlike the Court, | would not

totally discount the legitimacy of [nonremedial] race-based decisions that may

produce tangible and fully justified future benefits.”). Likewise, the Wygant plurality

acknowledged the “requirement that race-based state action be remedial. Wygani,

476 U.S. at 278. See ibid. (“The trial court must make a factual determination that

the employer had a strong basis in evidence for its conclusion that remedial action

was necessary .”) (emphasis added).

2. Since neither Metro nor Rainbow owns other broadcast

properties, selection of either to receive the contested license would

result in “diversity” as that term is traditionally understood at the

Commission: a new and, in that sense, distinct voice on the broadcast

spectrum. See FCC v. NCCB, 436 U.S. 775 (1978). Yet only Rain-

bow received the preference. It was preferred not because of any

distinctive programming it offered, a factor to which the Commission

is indifferent, but because its principals are “Spanish-surnamed.”

There are two potential reasons why the Commission viewed the

Rainbow owners’ ancestry as relevant to “diversity,” as it now defines

that term. First, the Commission might have thought it desirable to

have more Hispanics owning radio and television stations, at least until

the percentage of Hispanic owners roughly approximated their repre-

sentation in the general population. Second, it might have believed

that Hispanics as a group disproportionately possess a trait that is

important to meritorious broadcast service — namely, a greater

propensity to engage in “minority programming.” Either of these

justifications would be at war with the Court’s precedent and any

meaningful principle of equal treatment.

If the former interest is being served by the Commission, such

“discrimination for its own sake” is, as we have previously noted,

facially unconstitutional. Bakke, 438 U.S. at 307. The latter interest

is equally illegitimate, for it uses the irrelevant characteristic of race

as a proxy for the potentially relevant nonracial characteristic of

minority programming. The Commission’s use of racial discrimina-

tion in lieu of a nonracial criterion better tailored to achieve the

purported goal is reason enough to condemn the Commission’s

scheme. The Commission’s use of race is particularly offensive,

however, because it is premised on the stereotypical notion that an

individual has a greater affinity for his “own kind” and because it

expressly disavows any interest in the potentially relevant nonracial

In light of the Commission’s schizophrenic policies toward

minority ownership over the years, it is not clear whether the chal-

lenged policy uses “minority programming” as a pretext for racial

discrimination in favor of minority owners, or whether it uses racial

discrimination in favor of minority owners as a grossly overbroad

proxy for minority programming. Whatever the case, it is plain that

the Commission is solely concerned with developing more minority

owners, not with any increase in minority programming.

First, the Commission itself has repeatedly characterized its goal

as correcting the underrepresentation of minority owners in the broad-

cast industry. It has suggested that, if this policy has any end date, it

will be when the percentage of minority-owned stations is in balance

with nationwide minority representation. See Shurberg, 876 F.2d at

906, 914-15; Winter Park, 873 F.2d at 360. The policy’s duration will

bear no relationship to the state of minority programming.

Moreover, the Commission has deliberately and faithfully ig-

nored all of the criteria it would have examined had it been concerned

with serving the needs of minority audiences. It has never defined

minority programming and has never inquired into whether licensed

applicants would provide “minority programming” (however

defined). Nor does it inquire into whether any minorities reside in the

relevant service area; or whether there are any minorities in the service

area whose programming interests have not already been satisfied; or

whether there are any minority station owners already in the area; or

(by virtue of the congressional rider) whether there is any link between

a licensee’s race and the programming produced. See TV9 Inc. v.

FCC, 495 F.2d 929 (D.C. Cir. 1973) (court concluded it could be

assumed that minority ownership would foster program diversity);

Winter Park, 873 F.2d at 356 (dissenting opinion); Notice of Inquiry:

In the Matter of Reexamination of the Commission's Comparative

Licensing, Distress Sales and Tax Certificate Policies Premised on

Racial, Ethnic or Gender Classifications, 52 Fed. Reg. 596 (Jan. 7,

1987).

Indeed, the Commission acknowledges that it could not care less

whether its racial preferences in any way enhance its ability to select

a licensee who will better serve a minority audience: “[W]e reject any

notion that the credit awarded for minority ownership should be

dependent upon a nexus with a minority population in the proposed

service area. ... [T])he public interest benefits and advantages of

minority ownership are not dependent on proof that the minority

owned station [was] specifically program[med] to meet minority

needs.” Waters Broadcasting Corp., 91 FCC 2d 1260, 1264-1265

(1982), aff'd., West Michigan Broadcasting Corp. v. Federal Com-

munications Commission, 735 F.2d 601 (D.C. Cir. 1984), cert. denied,

470 U.S. 1027 (1985).

To be sure, the Commission’s emphatic statement merely con-

firms that which is otherwise obvious; the Commission is not at all

concerned with whether Hispanics receiving a preference will address

the needs of an Hispanic audience (if one exists) or anything else about

what the owner may say or show. The Commission is interested only

in whether a Hispanic is saying it. Thus, the “diversity rationale”

reduces to this: the Commission discriminates against some racial

groups because it believes it is sociably desirable to advance the

interests of other racial groups. The invidious nature of this dis-

crimination would be palpable were the Commission awarding

government contracts to build roads or missiles. Relying, however,

on Justice Powell’s observations in Bakke concerning the benefits of

an integrated educational environment, the Commission maintains

that its discriminatory policy should nonetheless be upheld because

licensing decisions have communicative aspects, which are, in turn,

affected by race and ethnicity. See Bakke, 438 U.S. at 311-315.

Unlike the situation addressed by Justice Powell in Bakke — col-

lege students living together in an integrated environment where they

can develop mutual tolerance and respect for those of other races —

there is little if any interaction between the owner of a broadcast station

and the station’s audience. Since few people know, and fewer stil!

care, who the owner is, the owner's race simply cannot promote

whatever values of tolerance or respect that may be derived from

programs featuring minority group members or otherwise providing

a “minority perspective” on things. Since a nonminority owner would

be no less capable of providing this type of “minority programming”

than a minority owner, the skin color of the owner cannot be deter-

minative of the programming received by the community. Hence,

race Cannot rationally serve as a basis for preferring, say, a Hispanic

over a nonminority owner who proposes to provide Spanish-language

programming.

The Commission's response is that, while a nonminority owner

may be capable of providing minority programming, he might be less

likely to do so. The opinions below of Judge Silberman and Judge

Williams persuasively demonstrate that this proposition is extraor-

dinarily doubtful as an empirical matter. See Shurberg, 876 F.2d at

921-24; Winter Park, 873 F.2d at 357-61.74

There is a more fundamental objection to the Commission's

discriminatory policy, however. The Court of Appeals for the District

of Columbia Circuit has put it well: “[I}t is contrary to one of our most

cherished constitutional and societal principles. That principle holds

that an individual's taste, beliefs and abilities should be assessed on

their own merits rather than categorizing that individual as a member

of a racial group presumed to think and behave in a particular way.”

Steele v. FCC, 770 F.2d 1192, 1198 (D.C. Cir. 1985), vacated(October

31, 1985).

Since the guaranties of the Constitution and the civil rights laws

create “personal” rights, “guaranteed to the individual,” the bedrock

principle of nondiscrimination is that the government must treat its

citizens “as individuals, not as simply components of a racial,

religious, sexual or national class.” Arizona Governing Committee v.

Norris, 463 U.S. 1073, 1083 (1983) (emphasis in original), quoting

Los Angeles Department of Water and Power v. Manhart, 435 U.S.

702, 708 (1978). See also Weber v. Aetna Casualty and Surety Co.,

406 U.S. 164, 175 (1972) (“[T]he basic concept of our system is that

the burden should bear some relationship to individual respon-

sibility.”) Accordingly, even an empirically verifiable generalization

about members of a particular racial group provides no warrant for

using group membership as a “proxy for other, more germane bases

of classification.” Hogan, 458 U.S. at 726, quoting Craig v. Boren,

429 U.S. 190, 198 (1976); Manhart, 435 U.S. at 708 (“even a true

generalization about a class can not justify class-based treatment”).

classifications that benefitted women, even though the classifications

2 The Commission's argument is premised on the notion that, for nonminonty

and minority owners alike, “dubious, ethnically -determined taste will outweigh the

ecopomnc imperative of what the audience wants to hear” — a proposition that 1s both

highly implausible and contrary to the fundamental assumptions that have driven the

Commission's market-based deregulation policy over the last decade. Steele v. FCC.

770 F.2d 1192 (D.C. Cir. 1985) vacated (October 31, 1985). See Syracuse Peace

Council v. FCC, 867 F.2d 654 (D.C. Cir. 1989); Office of Com. of United Church of

Christ v. FCC, 707 F.2d 1413 (D.C. Cir. 1983), Shurbderg, 876 F.2d at 923.

were based on accurate generalizations about men and women. “[T]he

State's compensatory and ameliorative purposes are as well served by

a gender-neutral classification as by one that gender classifies.” Orr

v. Orr, 440 U.S. 268, 283 (1979).25 Since gender-based classifica-

tions are judged only pursuant to mid-level scrutiny, and there are,

albeit few, genuine differences between the sexes, these holdings

the claim that minority doctors were more likely to serve disad-

vantaged communities was rejected as a justification for preferential

medical school admissions:

An applicant of whatever race who has demonstrated his

concern for disadvantaged minorities in the past and who

declares that practice in such a community is his primary

professional goal would be more likely to contribute to

alleviation of the medical shortage than one who is chosen

entirely on the basis of race and disadvantage.

Bakke, 438 U.S. at 311, quoting Bakke v. Regents of University of

California, SS3 P.2d 1152, 1167 (1976). See also Palmore, 466 U.S.

at 433.

** See, ¢.g., Wengler v. Druggists Mutual Insurance Co., 446 U.S. 142, 151 (1980)

(“[!}t may be that there is empirical support for the proposition that men are more

likely to be the principal supporters but the bare assertion of this argument falls far

short of justifying gender-based discrimination on the grounds of administrative

convenience”), Orr v. Orr, 440 U.S. 268, 281 (1979) (law that required only husbands

to pay alimony struck down because “even if sex were a reliable proxy for need, and

even if the isttution of marnage did discriminate against women, these factors stil!

‘would not adequately justify the salient f_ atures of Alabama's statutory scheme”).

Wiesenfeld, 420 U.S at 645 (social secunty provision benefitting widows struck

down, “the notion that men are more likely than women to be the primary supporters

of their spouses and children ts not enurely without empincal suppor’ —[b}ut such

& gender-based generalization cannot suffice”); Goldfarb, 430 U.S. at 205-206

(same), Frontiero, 411 U.S. at 689-90 (law favoring serviceman struck down). C/

City of Los Angeles Depart. of Water and Power v. Manhart, 435 U.S. 702, 704-12

(1978) (sex based actuarial tables violate Title VII); Arizona Governing Commitiee

v. Norris, 463 U.S. 1073, 1083-84 (1983) (same).

** See, ¢.g., Croson, 109 S. Ci. at 728; Wygant, 476 US. at 279(“The classification

al issue musi fit’ with greater precision than any alternative means.”). Fullilove, 448

US at S37 (Stevens, J., dissenting) (“Racial classifications are simply too pernicious

to permit amy bul the mosi exact connection between justification and classification ™).

Indeed, the Court has reserved its harshest condemnation for

racial prejudgments of the sort relied on here — those holding that

group membership is relevant because it reflects something about the

way individuals in the group think and behave. The Commission's

policy is unquestionably premised on such a racial stereotype. For its

racial preferences to make any sense at all, the Commission must

believe that members of a racial group tend to think and behave alike.

Otherwise a Hispanic would have no greater insight into the needs of

a Hispanic audience and would not better “represent their thinking

than would a non-Hispanic. Public policy should not be based on the

expectation or assumption that minorities will speak only as “repre-

sentatives” of their group, rather than as individuals with unique needs,

interests, talents, and aspirations. eae

doubt in this regard is decisively remov ‘ourt’s

outa Wygant. There the government defendants tried to justify

their racially preferential scheme by advancing the so-cal led «4

model” theory, under which minority teachers received a layo

preference because they provide a “role model for minority (and

other) students. The “role mode!” theory is indistinguishable from the

Commission’s diversity rationale. And Justice Powell's plurality

opinion in Wygant squarely rejected the role model theory, concluding

that any judicial tolerance »f the theory “could lead to the very 9

the Court rejected in Brown v. Board of Education. Wygant, 476 U.S.

at 276.

ince the Commission’s diversity theory is even more squarely

vesed oo the notion thet people think and speak and behave ss

members of a race rather than as individuals, its acceptance by this

Court would pose the same danger. And it will provide others with

equally compelling rationales for excluding minorities from juries (at

least where they are overrepresented),2” from working at country and

western radio stations (cf. Beaumont Branch of the NAACP v. FCC,

isi 419 U.S. 522

, , Batson v. Kentucky, 476 U.S. 79 (1986); Taylor v. Louisiana,

porn Cf. Duren v. Missouri, 439 US. 357, 371, n. * (1979) (Rehnquist, J.,

dissenting).

854 F.2d 501, 510 (D.C. Cir. 1988)), and from a host of other

endeavors.28

In the face of all this, the Commission suggests that it must use

race as a surrogate for minority programming because, while the Fifth

Amendment does not require it to be color-blind, the First Amendment

does indicate that it should be content-blind. See, e.g., Shurberg, 876

F.2d at 946 (Wald, J., dissenting). But if it is true that the First

Amendment frowns on governmental allocation of the broadcast

spectrum on the basis of program content, then the Commission has

no legitimate interest in seeking to increase minority programming.

Content-based discrimination accomplished through subterfuge of-

fends the First Amendment no less than straightforward content-based

discrimination. See, e.g., Grosjean v. American Press Co., 297 U.S.

233 (1936). If, on the other hand, the Commission has authority (as

it seems to under current law) to take account of the existence of

minority and other programming, it plainly has no “compelling”

interest in choosing race instead. See Red Lion Broadcasting Co. v.

FCC, 395 U.S. 367 (1969).

In sum, all the Commission can point to in support of its racial

preferences is one congressional report making conclusionary asser-

tions about “underrepresentation” in the broadcast industry and “other

sectors of the economy.” As this Court has noted, however if all the

28 See Castaneda v. Partida, 430 U.S. 482, 504 (1977) (Marshall J.) (rejecting

argument that Mexican Americans would not discriminate against fellow group

members; “this Court has a solemn responsibility to avoid basing its decisions on

broad generalizations concerning minority groups”); Fullilove, 448 U.S. at 553

(Stevens, J., dissenting) (“[t}oday there is a danger that awareness of past injustice

will lead to automatic acceptance of new classifications that are not in fact justified

by attributes characteristic of the class as a whole.”); Roberts v. United States Jaycees,

468 U.S. 609, 627-28 (1984) (“In claiming that women might have a different attitude

., the Jaycees rely solely on oom gn generalizations about the relative interests

and perspectives of men and women .. . . [W]e have repeatedly condemned legal

decisionmaking that relies encritically on such assumptions.”); Smith v. Board of

Education, 365 F.2d 770, 782 (1966) (per Blackmun, J.) (“In this day, race per se is

an impermissible criterion for judging either an applicant's qualifications or the

district's needs. This applies equally to considerations described as environment or

ability to communicate or speech patterns or capacity to establish rapport with

[people] when these descriptions amount only to euphemistic references to actual or

assumed racial distinctions.”).

Commission “need do is find a congressional report on the subject to

enact a set-aside program, the constraints of the Equal Protection

clause will in effect have been rendered a nullity.” Croson, 109 S. Ct.

at 727.

C. The Commission’s Policy Is Not Narrowly Tailored.

Since the Commission is pursuing illegitimate goals, we will

only briefly point out the overbroad and nature of the means

by which they seek to accomplish them.

First, race-neutral alternatives, such as examining minority

programming, are not only available but would undoubtedly better

serve the Commission’s desire to diversify programming and enhance

minority participation. See Croson, 109 S. Ct. at 728-730. Second,

the Commission’s failure to engage in an individualized, case-by-case

determination concerning an applicant’s programming plans or status

as a victim of invidious discrimination is particularly egregious be-

cause the Commission already holds an extensive comparative hearing

in which many aspects of the applicant’s background and aspirations

are explored. “In such circumstances, not even an administrative-con-

venience rationale exists to justify operating by generalization or

proxy.” Orr v. Orr, 440 U.S. at 268. See also Croson, 109 S. Ct. at

729 (“The interest in avoiding the bureaucratic effort necessary to

tailor remedial relief to those who truly have suffered the effects of

prior discrimination cannot justify a rigid line drawn on the basis of a

suspect classification.”).

Nor is there merit in the suggestion by the court below that the

Commission’s discriminatory policy is somehow sufficiently

“flexible” because other factors are considered along with race.

Winter Park, 873 F.2d at 354. It is quite possible for a racial “plus”

to subordinate merit just as effectively as a quota. Such is the case

here. The racial and ethnic preference applies in every case and will

apparently do so either in perpetuity or at least until national propor-

tional representation is achieved for all racial groups. /d. at 363. Thus,

29 As the Court noted in Croson, “it is almost impossible to assess whether the

[racial preference] is narrowly tailored to remedy prior discrimination [if] it is not

linked to identified discrimination in any way.” Croson, 109 S. Ct. at 728. Accepting

more diffuse, open-ended purposes as sufficiently “compelling” interests would thus

drain the requirement of narrow tailoring of any significance.

the Commission’s scheme is in essence a 100% quota with possible

exceptions made when no minority is interested or possesses the basic

qualifications. Moreover, race is balanced against very few other

factors, all of which are apparently less important, except for local

residency. Winter Park, 873 F.2d at 350.

Perhaps more important, the opening up of a new television

Station in one’s community is an extraordinarily rare event; the loss

of a license contest therefore works a severe hardship. Moreover, if

the opportunity arises in a different location, the nonminority applicant

will lose his local preference points, thus virtually guaranteeing that

he will lose out to any minority applicant. See Shurberg, 876 F.2d at

917. Thus, the loss of this once-in-a-lifetime opportunity is at least as

serious as being denied an entry level job in “a particularly specialized

area of employment [which can] have the same pernicious effect as

the layoff goal in Wygant.” Local 28, 478 U.S. at 488 (Powell, J.,

concurring).29

% Thus, the suggestion by the dissenting opinion in Shurberg that no “settled

expectations” are unduly disrupted by a license denial is particularly puzzling. /d. at

951. Petitioner’s expectations here were disrupted far more seriously than those of

the contractors in Richmond, who could work in the private sector or other towns,

and more than Alan Bakke, who could attend medical school somewhere else. In any

event, the entire concept of settled expectations is fundamentally misguided because

it confuses the requirements of the Due Process Clause with those of the Equal

Protection Clause. The latter provision forbids racial discrimination in all govern-

ment programs, regardless of whether the discriminatee had an expectation or

“entitlement” to the benefit denied. While no one has an absolute entitlement to a job

or benefit, all have an expectation of, and entitlement to, equal treatment.

CONCLUSION

For the foregoing reasons, the judgment of the Court of Appeals

should be reversed.

Respectfully submitted,