# Amicus Curiae Brief — Adarand Constructors, Inc. v. Mineta

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2001
- **Citation:** 534 U.S. 103

## Text

AUG [0 206| No. 00-730 ~~

In the Supreme Court of the United States? 200°

ADARAND CONSTRUCTORS, RE “CERVED |

—_ - ——— -

Petitioner, 4); AUG 14 2001

LDC
NORMAN Y. MINETA, Secretary of the United
States Department of Transportation et al.,
Respondents.

V.

On Writ of Certiorari to the United States
Court of Appeals for the Tenth Circuit

Brief of Amici Curiae Office of Communication of the
United Church of Christ, Minority Media and
Telecommunications Council, Alliance for Community
Media, American Federation of Television and Radio
Artists, American Hispanic Owned Radio Association,
Black College Communication Association, Civil
Rights Forum on Telecommunications Policy, Media
Action Network of Asian Americans, National Asian
American Telecommunications Association, National
Association of Black Journalists, National Association
of Black Owned Broadcasters, National Association of
Black Telecommunications Professionals, National
Association of Hispanic Journalists, National
Association of Minorities in Communications, National
Association of Minority Media Executives, National
Hispanic Media Coalition, Telecommunications
Research and Action Council, and Women's Institute
for Freedom of the Press, In Support of Respondents

Shelby D. Green David Honig *

c/o Pace Law School Minority Media and

78 No. Broadway Telecommunications Council
White Plains, N.Y. 10603 3636 16th St. NW #BG-54
(914) 422-4421 Washington, D.C. 20010

(202) 332-7005

* Counsel of Record

Attorneys for Amici Cur.ae

IBEST AVAILABLE COPY

TABLE OF CONTENTS

Table of Authorities rT

Interest of Amici Curiae 1
Summary of Argument 7
Argument 8

Programs Using The Basic Design 8

Of DOT's Current DBE Program
Can Satisfy Strict Scrutiny

A. The Court Of Appeals Wisely 8
Afforded Considerable Deference
To Congressional Findings And
Legislative History

B. The Court Of Appeals Correctly 14
Found That DOT's Current DBE
Served The Compelling
Interests Of Not Perpetuating,
And Of Remedying, The
Consequences Of Racial
Discrimination In The
Government's Own Distribution
Of Federal Funds

C. The Court Of Appeals Correctly 18
Found That Discrimination In
Contracting Is National In Scope

Conclusion 23

TABLE OF AUTHORITIES

Cases

Adarand Constructors, Inc. v. Pefia,
515 U.S. 200 (1995)

Adarand Constructors, Inc. v. Slater,
228 F.3d 1147 (10th Cir. 2000)

Bob Jones University v. United States,
461 U.S. 574 (1983)

Brown v. Board of Education, 357.
U.S. 483 (1954)

Bush v. Gore, 531 U.S. 98 (2000)

City of Richmond v. J.A. Croson Co.,
488 U.S. 469 (1989)

Franks v. Bowman Transportation Co.,
424 U.S. 747 (1976)

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

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

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

Page

passim

passim

14

16

20
14

19

passim

13

13

Cases (continued)

Jones v. Alfred H. Mayer Co., 392
U.S. 409 (1968)

Metro Broadcasting, Inc. v. FCC,
497 U.S. 547 (1990)

Mitchell v. United States, 313 U.S. 80
(1941)

Norwood v. Harrison, 413 U.S. 455
(1973)

Office of Communication of the United
Church of Christ v. FCC, 359 F.2d
994 (D.C. Cir. 1966)

of Communication of the United
Church of Christ v. FCC, 425 F.2d
543 (D.C. Cir. 1969)

Oregon v. Mitchell, 400 U.S. 112
(1970)

Regents of the Univ. of Cal. v. Bakke,
438 U.S. 265 (1978)

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

United Jewish Organizations v. Carey,
430 U.S. 144 (1977)

16

12, 18

6, 9

8, 20

19

Page
Cases (continued)
United Steelworkers of America v. 12
Weber, 443 U.S. 193 (1979)
Wygant v. Jackson Board of passim

Education, 476 U.S. 267 (1986)

Administrative Materials

Amendment of the Commission's Rules to 19
Establish New Narrowband Personal
Communications Service, 8 F.C.C.R.

7162 (1993), modified, 9 F.C.C.R. 1309
(1994), further modified, 9 F.C.C.R.
4519 (1994), rev'd in part on other
grounds sub nom. Freeman Engineering
Associates, Inc. v. FCC, 103 F.3d 169
(D.C. Cir. 1997)

Glencairn, Lid., No. 1800E1-LS 22
— Media Bureau, March 15,
1

New Financial Qualifications Standards 16
for Broadcast Assignment and
Applicants, 87 F.C.C.2d 200 (1981)

Policy Statement on Comparative 16

Broadcast Hearings, 1 F.C.C.2d 393
(1965)

Administrative Materials (continued)

Race and Gender Based Provisions for
Auctioning C Block Broadband
Personal Communications Service
Licenses, Sixth Report and Order,
60 Fed. Reg. 37,786 (1995)

Review of the Commission's Broadcast
Equal Employment Opportunity Rules
and Policies, 15 F.C.C.R. 2329 (2000),
reversed in part sub nom. MD/DC/DE
Broadcasters Ass'n. v. FCC, 236 F.3d 13,
rehearing and rehearing en banc denied,

No. 00-1094 (released June 19, 2001)

Review of the Commission's Regulations
Governing Television Broadcasting,
14 F.C.C.R. 12,903 (1999)

Section 257 Proceeding to Identify and
Eliminate Market Entry Barriers for
Small Businesses (Notice of Inquiry),
11 F.C.C.R. 6280 (1996)

dentifying

Entry Barriers for Entrepreneurs and
Other Small Businesses, 15 F.C.C.R.
15,376 (2000)

21

17

17

Southland Television Co., 10 Rad. Reg.
(P & F) 699, recon. denied, 20 F.C.C.
159 (1955)

Ultravision Broadcasting Company,
1 F.C.C.2d 545 (1965)

47 U.S.C. § 151 (1996)
47 U.S.C. § 257(a) (1996)
47 U.S.C. § 307(a) (1996)

16

16

10

16

Statutes and Legislative
Materials (continued)

49 U.S.C. § 3(1) (1958)

Administrative Procedure Act,
5 U.S.C. § 553 (2001)

Hearings on H.R. 8301 Before the
Committee on Interstate and Foreign
Commerce, House of Representatives,
73rd Cong. 2d Sess. 14 (1934)
(testimony of Dr. Irvin Stewart,
Department of State) (reprinted in
_ D. Paglin, ed., A Legislative

istory of the Communications Act
of 1954 360 (1989)

H.R. Conf. Rep. 765, 97th Cong. 2d
Sess. 43 (1982)

Interstate Commerce Act, Part I,
24 Stat. 380 (1887)

Self-Employed Persons Health Care
Deduction Extension Act of 1995,
Pub. L. No. 104-7, 2, 109 Stat. 93
(1995)

21

15

22

15

21

BIA Financial Network, Television Market
Report 2001 (2001)

BIA Financial Network, Radio Market
Report 2001 (2001)

A. Bush and M. Martin, The FCC's
Minority Ownership Policies From
Broadcasting to PCS, 48 Fed. Comm.
LJ. 423 (1996)

FCC Office of General Counsel, Historical

Study of Market En rn
Discranination and Ob
Broadcast and Wireless Li

1950 to Present (December, m0;

Taylor Branch, Parting the Waters:

America in the King Y. 1984-
(1988) s

=

-15-

discrimination in [the government's] own distribution
of federal funds and in remediating the effects of
past discrimination in the government contracting
markets created by [government] disbursements."
Adarand VII, 228 F.3d at 1165. The court of
appeals’ definitions of the compelling governmental
interests resonate strongly with amici, whose civil
rights work centers on the communications
industries. Like highway transportation,
communications uses public rights-of-way to foster
national social and economic interaction. Regulation
of transportation and communications each
descended from the same statutory progenitor -- the
Interstate Commerce Act, which was enacted in
1887.19 The first sentence of the legislation
authorizing the FCC provides that the agency was
created, inter alia, "so as to make available, so far
as possible, to all the people of the United States,
without discrimination on the basis of race, color,
religion, national origin, or sex, a rapid, efficient,
Nation-wide, and world-wide wire and radio
communication service” (emphasis supplied).!!

10 Hearings on H.R. 8301 Before the Committee on Interstate
and Foreign Commerce, House of Representatives, 73rd Cong.
2d Sess. 14 (1934) (testimony of Dr. Irvin Stewart,
Department of State) (reprinted in Max D. Paglin, ed., A
Legislative History of the Communications Act of 1934 360
(1989) (describing how communications and transportation
regulation each evolved from the Interstate Commerce Act).

11 47 U.S.C. § 151 (1996). Compare Interstate Commerce
Act, Part I, 24 Stat. 380 (1887), 49 U.S.C. § 3(1) (1958)
(prohibiting common carriers from giving “undue or
unreasonable preference or advance to any particular person
... in any respect whatsoever, or (subjecting) any particular
person ... to any unreasonable or undue prejudice or
disadvantage.”)

. -16-

Like DOT, the FCC contravened its mandate for
decades by providing extensive and unseemly
assistance to discriminators. Acting through its
exclusive power to issue broadcast licenses,!2 the
FCC routinely provided, renewed and authorized the
assignment and transfer of licenses to segregated
companies and institutions.!5 These licensees, in

12 47 U.S.C. § 307(a) (1996).

13. Even after Brown v. Board of Education, 357 U.S. 483
(1954), the FCC routinely granted and renewed licenses of
broadcasters that discriminated, and in doing so openly
embraced state segregation laws. See, e.g., Southland
Television Co., 10 Rad. Reg. (P & F) 699, recon. denied,
20 F.C.C. 159 (1955), in which the FCC awarded a VHF-TV
license to a segregationist so rabid that he built one-story
movie theaters to evade Louisiana's law requiring theater
owners to admit blacks to one floor of a two-story theater.
The FCC justified its action by declaring that "[a]dmission of
Negroes [only] to theatre balconies appears to be legal in
Louisiana.” Id. at 750. See also UCC I (requiring the FCC to
hold a hearing on allegations that WLBT-TV, Jackson, MS,
discriminated against blacks in programming) and Office of
Communication of the United Church of Christ v. FCC,
425 F.2d 543 (D.C. Cir. 1969) ("UCC II") (vacating
WLBT-TV's license renewal after the FCC held a sham
hearing). Segregation in broadcast education denied
minorities an opportunity to obtain broadcast experience and
a record of broadcast operation, yet the FCC still credited
these factors when awarding broadcast licenses in
comparative hearings. Policy Statement on Comparative
Broadcast Hearings, 1 F.C.C.2d 393, 396-98 (1965). Finally,
the FCC did not repeal an overbroad broadcast financial
requirement until 1981, when it recognized that the former
rule prevented minorities from securing broadcast licenses.
New Financial Qualifications Standards for Broadcast
Assignment and Transfer Applicants, 87 F.C.C.2d 200, 201
(1981) (repealing Ultravision Broadcasting Company,
1 F.C.C.2d 545, 547 (1965)).

_——- —_— oe

oe ees ee ee

-17-

turn, trained the next generations of broadcaster

owners and managers. These FCC licensing

decisions ensured that two successive generations of |
broadcast professionals, managers and owners were

almost exclusively white and male.!4 In

communications as in highway construction,

substantial remediation will be required to overcome

the natural tendency of a homogeneous group to

replicate itself in successive generations. !5

14 Eventually, the FCC acknowledged that a good case
could be made that "[a]s a result of our system of awarding
broadcast licenses in the 1940s and 1950s, no minority held
a broadcast license until 1956 or won a comparative hearing
until 1975 and . . . special incentives for minority businesses
are needed in order to compensate for a very long history of
official actions which deprived minorities of meaningful access
to the radiofrequency spectrum.” Section 257 Proceeding to
Identify and Eliminate Market Entry Barriers for Small
Businesses (Notice of Inquiry), 11 F.C.C.R. 6280, 6306 (1996).

15 An effort by the FCC to remedy and prevent
discrimination in broadcast and cable employment by
requiring broad job recruitment was recently rejected by the
D.C. Circuit, which applied strict scrutiny. Review of the
Commission's Broadcast Equal Employment Opportunity
Rules and Policies, 15 F.C.C.R. 2329 (2000), reversed in part
sub nom. MD/DC/DE Broadcasters Ass'n. v. FCC, 236 F.3d
13, rehearing and rehearing en banc denied, No. 00-1094
(released June 19, 2001). Dissenting from the denial of
rehearing en banc, Judges Tatel, Edwards and Rogers noted
that "[dJetermining whether an outreach program crosses the
line from expanding opportunities for minorities to
disadvantaging nonminorities, thus triggering strict scrutiny -
and if so er the program survives - are difficult issues
that neither we nor the Supreme Court has yet considered.”
Dissenting Opinion, Slip Op. at 5. A thorough discussion of
the FCC's EEO jurisprudence may be found in S.J. Trigg, The
Federal Communications Commission's Equal Opportunity
Employment Program and the Effect of Adarand Constructors,
Inc. v. Pefia, 4 CommLaw Conspectus 237 (1996).

-18-

Regulatory initiatives such as DOT's and the
FCC's, backed by strong records that include
legislative findings, are uniquely suited to achieve
comprehensive remedies. The Court should defer to
Congress, and administrative bodies with subject
matter expertise, when they undertake to research
and remedy the consequences of
government-sponsored and government-aided

tion.

C. The Court Of Appeals Correctly Found
That Discrimination In Contracting Is
National In Scope

When discrimination occurs nationally, its
remedy must be structured nationally. As the court
of appeals found here, "[t]he remediation of
nationwide problems .. . is particularly within the
purview of Congress, and findings of industry-wide
discrimination are precisely what is relevant to a
federal decision to undertake remedial action."
Adarand VII, 228 F.3d at 1163 n.8.

It is well established that Congress need not
measure the extent of a problem in every corner of
the nation to find that it must implement reform
nationally. See, e.g., Mitchell, 400 U.S. at 133
(upholding Congress' determination that a
nationwide ban on literacy tests was appropriate
where "Congress has recognized a national problem
for what it is -- a serious national dilemma that

Nb. es lll i, il ti, ll ln ie

a es

-19-

touches every corner of our land" (emphasis in

original)).16

Congress’ ability to address nationwide
discrimination through nationwide solutions is
essential to the effective regulation of every industry
that operates across state lines. The industries with
which amici are most concerned present a prime
example. Personal Communications Service (PCS)
telephony operates in 492 local markets.!7

16 National remediation for national discrimination has an
additional advantage: it ensures that the burden of
remediation of the conditions caused by nationwide practices
is not borne by citizens of only a few communities. As this
Court has pointed out, spreading the costs of remediation is a
primary goal of narrow tailoring. See Wygant, 476 U.S. at
281 ("when effectuating a limited and properly tailored
remedy to cure the effects of prior discrimination, such a
‘sharing of the burden’ by innocent parties is not
impermissible" (quoting Fullilove, 448 U.S. at 484, in turn

quoting Franks v. Bowman Transportation Co., 424 US. 747,
777 (1976)). However, a remedy should only ” impose a
diffuse burden, often heodesinn only one of several
opportunities[.]" Wygant, 476 U.S. at 283. See also United
Jewish Organizations v. Carey, 430 U.S. 144, 165 (1977)
(redistricting plan authorized no "fencing out of the white
population from participation in the political processes of the
county, and the plan did not minimize or unfairly cancel out

white voting strength.”)

17 See Amendment of the Commission's Rules to Establish
New Narrowband Personal Communications Service,
8 F.C.C.R. 7162, 7167 ¥ 28 (1993), modified, 9 F.C.C.R.
1309 (1994), further modified, 9 F.C.C.R. 4519 (1994), rev'd
in part on other grounds sub nom. Freeman Engineering
Associates, Inc. v. FCC, 103 F.3d 169 (D.C. Cir. 1997).

-20-

Television and cable television are organized into
211 different Nielsen-rated television markets.18
Radio is organized into 283 Arbitron-rated
markets.!9 A requirement that legislation be
particularized to address each parochial quirk of
discrimination in each of these markets would place
the cost of designing remediation far out of reach.
Such an interpretation would render strict scrutiny
aimed at redressing nationally-occurring
discrimination "fatal in fact"2° for every federal
program.*!

18 See Review of the Commission's Regulations Governing
Television Broadcasting, 14 F.C.C.R. 12,903, 12,926 ¥ 47
(1999). These markets are identified and ranked in BIA
Financial Network, Television Market Report 2001 4-5 (2001).

19 These markets are identified and ranked in BIA
Financial Network, Radio Market Report 2001 4-5 (2001).

20 Adarand III, 515 U.S. at 237 (quoting Fullilove, 448 U.S.
at 519 (Marshall, J., concurring in judgment)).

21 A closely analogous situation is found in the field of
voting rights. This Court recently found that citizens in
multiple jurisdictions within a state deserve roughly
equivalent treatment at the polls. Bush v. Gore, 531 U.S. 98,
Slip Op. at 6 (2000) ("{hJaving once granted the right to vote
on equal terms, the State may not, by later arbitrary and
disparate treatment, value one person's vote over that of
another.") National standards may be the only way to
address this and other problems of national scope. As this
Court has recognized in the voting rights field, "Congress had
found that case-by-case litigation was inadequate to combat
widespread and persistent discrimination in voting, because
of the inordinate amount of time and energy required to
overcome the obstructionist tactics invariably encountered in
these lawsuits." South Carolina v. Katzenbach, 383 U.S. at
328.

- ———a

-21-

Opening the door, narrowly, to national remedies
that satisfy strict scrutiny is unlikely to engender a
host of poorly designed initiatives. When drafting
any remedial regulations, federal agencies typically
spend hundreds of thousands of dollars to carefully
define the harm to be remedied or prevented, and to
structure the remedy so as to avoid over- or
under-inclusiveness or disproportionate burdens on
third parties. These expenditures are subject to
congressional oversight, and to the transparency
inherent in the administrative rulemaking process.72

In its recent efforts to remedy its previous
record of subsidizing discrimination, the FCC
provides a commendable example of responsible
remediation.2*> At every stage of its administration

22 See Administrative Procedure Act, 5 U.S.C. § 553 (2001)
(providing for publication of proposed rules, consideration of
comments, and public justification of the basis for rules upon
their adoption).

23 Immediately following Adarand III, the FCC suspended
the race- and gender-conscious provisions of its regulations
governing auctions of certain wireless facilities, in large part
to avoid delays that might have resulted from litigation. Race
and Gender Based Provisions for Auctioning C Block
Broadband Personal Communications Service Licenses, Sixth
Report and Order, 60 Fed. Reg. 37,786 (1995). Another very
successful FCC program, the tax certificate policy, initiated in
1978, provided sellers of broadcast and cable properties with
a tax deferral incentive to sell to a minority owned business.
Congress eliminated this policy in 1995. Self-Employed
Persons Health Care Deduction Extension Act of 1995, Pub.
L. No. 104-7, 2, 109 Stat. 93 (1995). A thorough discussion
of the FCC's minority ownership policies may be found in A.
Bush and M. Martin, The FCC’s Minority Ownership Policies
From Broadcasting to PCS, 48 Fed. Comm. L.J. 423 (1996).

-22-

of programs designed to foster minority ownership
and employment, the agency has acted pursuant to
congressional oversight.24 The FCC has conducted
extensive research to fashion its remedial
initiatives,25 and it has undertaken genuine efforts
to use the least burdensome, least race-conscious
and most effective approaches available.?
Moreover, the FCC has undertaken to detect fronts,
frauds and abuse.27 The methodological,

24 See, e.g., H.R. Conf. Rep. 765, 97th Cong. 2d Sess. 43
(1982) (finding the paucity of minority broadcast licensees to
be partly attributable to past discrimination). See also
47 U.S.C. § 257(a) (1996) (requiring the FCC to complete a
proceeding to eliminate "market entry barriers for
entrepreneurs and other small businesses” ia
telecommunications), pursuant to which the FCC issued its
Section 257 Report to Congress: Identifying and Eliminating
Market Entry Barriers for Entrepreneurs and Other Small
Businesses, 15 F.C.C.R. 15,376 (2000).

25 See, e.g., FCC Office of General Counsel, Historical Study
of Market Entry Barriers, Discrimination and Changes in
Broadcast and Wireless Licensing, 1950 to Present
(December, 2000).

26 See supra p. 17 n. 15 (describing recent history of the
FCC's efforts to fashion a broadcast and cable employment
recruitment program).

27 See, e.g., Glencairn, Ltd., No. 1800E1-LS, at 2 (FCC
Mass Media Bureau, March 15, 1999) (on file with counsel of
record) (opening an investigation, inter alia, into whether
provisions of an agreement under which a television licensee
was required to use the programming services of a much
larger licensee “violated the [smaller] licensee's fundamental
right and obligation to determine the type of programming to
be aired on its station.”) The Bureau was responding to
allegations that the larger television licensee improperly
exercises de facto control of the smaller licensee.

ee ee

~~ oe ~~ -~ «

-23-

incremental and deliberate approach to remediation
taken by agencies such as the FCC suggests that
federal agencies will act responsibly if this Court
validates DOT's current DBE program.

For over two generations, equal access to
transportation has occupied a central place in our
nation's civil ~~ history -— 4S pee This
case ts urt with an historic opportunity
to affirm that all Americans may enjoy a reasonable
opportunity not only to ride on our highways, but to
build them.

Our Secretary of State has framed the federal
government's remedial duty as “not only to cut off
and kill discrimination, but to open every avenue of
educational and economic opportunity to those who
are still denied access because of their race, ethnic
background or gender." Address of General Colin
Powell, Republican National Convention, August 12,
1996. The task of opening "every avenue of .. .
opportunity" is not so daunting that it entirely
evades solution. By affirming the court of appeals,
this Court can enable Congress, and agencies acting
under its direction, to deliver us at last to a time and
place where none of us bears the weight of past

28 See Mitchell v. United States, 313 U.S. 80, 95 (1941)
(holding that failure te provide blacks with first-class
accommodations equal to those furnished whites violated the
Interstate Commerce Act). See also generally Taylor Branch,

Parting the Waters: America in the King Years, 1954-1963

143-205 (1988) (discussing Montgomery bus boycott and its
aftermath).

Respectfully submitted,

David Honig*
Minority ‘ie tia and

Telecom: unications Council
3636 16th St. N.W.
Suite BG-54
Washington, D.C. 20010
(202) 332-7005

Shelby D. Green
c/o Pace Law School

78 No. Broadway

White Plains, N.Y. 10603
(914) 422-4421

*Counsel of Record
Attorneys for Amici Curiae

August 10, 2001

* Amici curiae appreciate the valuable assistance of
Fatima Fofana, Nicolaine Lazarre, Esq., Erik Williams, Esq.
and Jen Smith.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0425%3A29. Public record. Not legal advice.