*1 BROADCASTING, METRO INC. FEDERAL COMMU v.
NICATIONS COMMISSION al. et Argued No. 89-453. March 1 990 1990* Decided June *Together with Company No. Astroline Communications Inc., al., Broadcasting Partnership Shurberg Hartford; Limited et also certiorari to the same court. *4 J., White, BREnnan, opinion Court, delivered the in Mar- which Stevens, J., shall, Blackmun, JJ., Stevens, joined. and filed con- O’Connor, J., curring opinion, post, p. dissenting opinion, 601. in filed a Rehnquist, J., JJ., Kennedy, joined, post, which C. and Scalia and Kennedy, J., Scalia, p. J., a dissenting opinion, 602. filed in which joined, post, p. 631. H. in Guillot the cause for
Gregory argued petitioner Midlen, No. 89-453. With him on the H. briefs was John Jr. J. in Roger Wollengerg argued petitioner the cause for No. 89-700. On the briefs were Lee H. and Linda Simowitz R. Bocchi.
Daniel M. Armstrong argued the cause for the federal re in No. 89-453. With him spondent on the brief were Robert Pash, L. Pettit and C. Jr. Grey Polivy argued the Margot cause for Rainbow With respondent Co. her Broadcasting on the brief was Katrina F. Cole Harry argued Renouf. in cause for No. 89-700 and filed a brief respondents for re spondent Hartford, Inc. Robert Shurberg Broadcasting Pettit, Pash, L. Daniel M. and Armstrong, Grey Jr., C. filed a brief for the Federal Commission, Communications as re spondent 12.4, under this Court’s Rule support peti † tioner in No. 89-700.
†Briefs urging amici curiae reversal No. 89-453 were filed for the Roberts, by Acting Acting United States Solicitor General Assistant At Turner, Merrill, torney Deputy Deputy General Solicitor General Assist Lazenvitz; Attorney Clegg, ant General and Michael R. for Associated America, Inc., by General Cooper, Contractors of Charles Michael A. J. Carvin, Communications, Inc., Kennedy; Galaxy by and Michael E. for Maines; Ronald D. Legal by for the Mountain Foundation et States al. Perry Pendley; by William for the Pacific Legal Foundation Ronald A. Zumbrun, Caso, Browne; Anthony T. Washing and Sharon L. and for Dunn, Legal by Nager, ton Foundation Glen D. A. Patricia Daniel J. Kamenar, Popeo, Scully. Paul D. and John A. Pepper C. Vincent Stephens Diversity Louis C. filed a brief for the Committee to Promote as urging amicus curiae reversal No. 89-700. urging
Brief of amici curiae affirmance in No. 89-453 and reversal No. 89-700 by were filed for the American Civil Liberties Union Burt Neubome, Powell, Burns; Shapiro, Steven R. John A. E. and Sarah Congressional by Honig, Squire Padgett, Black Caucus David E. Jr.; Jones, George W. for the National Association of Black Owned Broad- Winston, casters, Inc., Diercks, by Walter E. L. James and Lois E. Smith, Wright; and for the Bar by Clay National Association J. Jr. urging Briefs of amici curiae affirmance in No. were filed for the Jr., Davidson, United States Senate Michael Benjamin, Ken U. Frankel; Morgan J. for the American by Angela Jewish et al. Committee *5 opinion of the delivered the Court. Brennan Justice today, for decision cases, consolidated these The issue minority policies preference of the Federal certain whether equal protection violate Commission Communications policies ques- component The the Fifth Amendment. (1) minority awarding program for an enhancement are tion comparative proceedings ownership for new licenses, and (2) program, permits minority which “distress sale” existing category television broadcast radio and limited minority-controlled only to firms. be transferred stations equal protection policies violate these do not We hold principles.
I A by today policies best be understood ref- before us can promote history of federal efforts to the erence Schwartzman, Mincberg; Jay and Elliot Andrew Capital Campbell, J. Willner, Wollenberg, Stephen A. by Roger J. Carl Cities/ABC, Inc., and Jordan, Jr., Weiswasser; al. Vernon E. Inc., by Region, Inlet et for Cook by Douglas B. McFadden Inc., Television, Joseph; for Giles Daniel and Evans; Lawyers’ Rights for Civil Donald J. for the Committee Under and Mullen, Hersh, Tatel, F. David Payton, Mark Robert S. John S. by Law Redlich; Fund, Legal for the Defense & Educational and Norman NAACP Chambers, Ralston, Ellis, Stephen Ronald L. L. Charles Inc., Julius by Bowie; Clyde Murphy, E. Nolan A. Schnapper, Na- Eric for the Ruth and Richard A. Benna Solomon by al. League of Cities et tional Simpson. amici curiae urging in No. 89-700 were filed for the affirmance Briefs of Roberts, by Acting Acting At- Solicitor General Assistant States United Merrill, Turner, Deputy Deputy Assist- torney Solicitor General General Lazerwitz; Attorney Clegg, and Michael R. General for the Pacific
ant Caso, Zumbrun, Anthony by Ronald A. T. and Sharon Legal Foundation Browne; Foundation, Inc., Robert L. by Legal L. and for Southeastern Jr., Barr, Stephen and G. Parker. amici curiae No. 89-453 were filed for American Women in Briefs of Holme; Inc., Richard P. Television, and for Jerome Thomas Radio P. McDonald. Lamprecht by Michael
553
broadcasting industry.1
participation
In the Com
in the
1064,
amended,
48 Stat.
as
Con
1934,
munications Act of
gress assigned
the Federal Communications Commission
Commission)
(FCC
authority
grant licenses,
or
exclusive
necessity,”
per
“public convenience, interest, or
on
based
operate
wishing
radio and television
sons
to construct
in the United States. See 47 U. S. C.
broadcast stations
ed.).
(1982
Although
past
§§
for the
151,
303, 307, 309
301,
one-fifth
have constituted at least
of
two decades minorities
during
relatively
population,
this time
few
the United States
minority groups have held broadcast licenses.
of
members
only
approximately
10 of
7,500
In
1971,minorities owned
country
1,000
and none of the more than
radio stations
App.
FCC,
9, Inc.
TV
161 U. S.
stations,
television
see
(1973),
937,
cert.
n.
495 F. 2d
n. 28
349, 357,
D. C.
(1974);
see also U. S. Commission on
denied,
The Commission underrepresented public tening are suffers minorities when among radio stations: owners television among underrepresentation of minorities
“Acute properties is troublesome because it broadcast owners ultimately responsible identify- licensee is the ing who *7 serving her and interests of his or au- the needs encouraged are to enter the Unless minorities dience. broadcasting business, of a mainstream the commercial citizenry portion our will remain under- substantial of non-minority larger, and the audience will be de- served ” Report prived of the minorities. Task Force 1. views of encourage minority has worked to Commission therefore The industry. began participation in the The broadcast FCC formulating discriminating prohibit to rules licensees from employment.3 explained against minorities in The FCC “broadcasting important mass media form which, is an belonging public, it makes use to the of the airwaves because public a under interest must obtain Federal license stand- operate public in and must in the interest order to obtain ard periodic renewals of Nondiscrimination Em- that license.” ployment Licensees, Practices 13 F. C. C. Broadcast 2d (1968). dealing employment prac- Regulations with 766, 769 justified necessary satisfy to enable the tices were as FCC 2 Report 1; Wimmer, Deregulation Force and Market Failure See Task Minority Programming: Dimensions of Broadcast The Socioeconomic Re (1986). form, 329, 426, L. J. 516 n. 8 Comm/Ent n. See also infra. 3See, g., Broadcast Li Employment e. Nondiscrimination Practices of censees, (1969); Employment Nondiscrimination Prac 18 F. C. C. 2d 240 Licensees, (1970); Nondiscrimination Broadcast tices 23 C. F. C. 2d Licensees, Employment Policies and Practices Broadcast F. C. C. (1975); Employment Policies and Practices Nondiscrimination in 2d 354 (1976). Licensees, Broadcast The current 60 F. C. 2d FCC’s C. §73.2080 employment opportunity policy is outlined at CFR equal (1989). pro- obligation Act of 1934 under the Communications
its diversity programming. FPC, NAACP v. mote See Department 670, n. 7 The United States U. S. employment example, equal contended that Justice, “ industry sig- opportunity in broadcast could ‘contribute reducing ending nificantly discrimination other toward “ ” impact which televi- industries’ because ‘enormous upon American life.’” Nondiscrimina- sion and radio have (citation omitted). supra, Employment Practices, tion Initially, did not consider status as a fac- the FCC maintaining licensing decisions, as a matter of tor Commis- preference minority ownership policy sion that no was particular give record in did warranted where the case not likely the owner’s race affect assurances that would the con- public. tent broadcast service to the of the station’s (Rev. Corp., Television 33 F. 2d Mid-Florida C. C. Bd.), (1972), denied, rev’d, review 37 F. C. C. 2d 559 TV supra. Appeals Inc. FCC, Court of for the District of *8 rejected posi- Circuit, however, Columbia the Commission’s superior community tion that an “assurance of service attrib- ownership participation” utable . . . Black was re- quired preference 9, Inc., before a could be awarded. TV supra, expecta- 358, 2d, 495 F. at 938. “‘Reasonable tion,”’ held, demonstration, court “‘not advance the is basis for merit to be accorded relevant factors.’” Ibid. See also App. FCC, 266, 273, 168 U. S. D. Garrett C. 513 F. 2d (1975). 1056, 1063 April minority the 1977,
In FCC conducted a conference on ownership policies, participants at which testified that minor- justified ity preferences increasing were as a means of diver- viewpoint. sity Report of broadcast See Task Force 4-6. Building conference, the results of the on the recommenda- Appeals force, task the tions of the decisions of the Court of petition proposing of Columbia Circuit, for the District and a the minority filed with ownership policies several Commis- January the Office of Telecommunications sion Pol- (then President) of the Executive Office the icy part of Commerce,4 the Department the FCC adopted May Policy 1978 its Statement Minority Ownership Facilities, Broadcasting C. After F. C. 2d 979. recount- efforts to expand diversity, its broadcast the ing past FCC concluded: are compelled observe that the views of
“[W]e racial continue to minorities be inadequately represented in the media. This broadcast situation is detrimental not minority to the audience the only but to all of viewing listening public. Adequate representation minor- ity viewpoints only serves not programming needs of the and interests but minority also community en- riches and educates the audience. non-minority It en- hances diversified a key which is programming objec- tive of the only not Communications Act but also (footnotes First Id., at 980-981 Amendment.” omitted). its actions as id., “first
Describing only 984, steps,” FCC outlined two elements of minority ownership policy.
First,
Commission
pledged
consider
owner-
factor in
ship as one
comparative
for new
proceedings
li-
censes. When
Commission compares mutually exclusive
for new
applications
radio or television
stations,5
broadcast
it
Minority
See Telecommunications
Program,
Papers
Assistance
Public
Presidents,
1,
Jimmy Carter,
pp.
Vol.
Jan.
petition
“[mjinority
ownership markedly
pub
observed
serves the
interest,
lic
it
sensitivity
ensures the sustained and increased
to minor
Id.,
ity
at 252.
audiences.”
n.
also
*9
infra.
FCC,
(1945),
Corp.
5 In
Radio
Ashbacker
326 U.
327
we held
S.
when the
was
“mutually
Commission
faced with two
exclusive” bona fide
applications
is,
license —that
proposed
for
two
stations that would be in
compatible technologically
obligated
applications
was
to set the
for a
—it
id.,
comparative hearing.
See
at 333.
diversification of control of
at six factors:
principally
looks
communications, full-time
station
participation
media
mass
to as the
referred
(commonly
“integra
owners
operation
management),
proposed program
ownership
tion”
efficient use of the
record,
service,
frequency,
broadcast
past
Policy Statement
See
and the character
the applicants.
Hearings,
Comparative
Broadcast
1 F.
C.C.
2d
Broadcasting
Michigan
v. Co.
FCC,
West
(1965);
394-399
(1984),
735 F. 2d
335, 338-339,
S.
D. C.
App.
U.
(1985).
In
Policy
Statement
denied,
B petitioner Broadcasting, In No. 89-453, Metro Inc. (Metro), challenges policy awarding prefer- the Commission’s minority comparative licensing proceed- ences owners ings. applicants, including Several Metro and Rainbow (Rainbow), Broadcasting comparative pro- were involved in a ceeding among mutually proposals to select three exclusive operate construct and a new UHF television station in the metropolitan evidentiary Orlando, Florida, area. After an (ALJ) hearing, Judge granted an Administrative Law Met- application. Broadcasting, ro’s Metro Inc., 96 F. C. C. 2d (1983). disqualified The ALJ Rainbow from consider- “misrepresentations” application. ation because of in its Id., at 1087. On review of the ALJ’s decision, however, the disagreed Commission’sReview Board with the ALJ’s find- ing regarding Rainbow’s candor and concluded that Rainbow qualified. Broadcasting, was Inc., Metro 99 F. C. C. 2d 688 (1984). proceeded compar- The Board to consider Rainbow’s showing superior doing, ative and found it In so Metro’s. the Review Board awarded Rainbow a substantial enhance- group percent who holds at least a 20 interest and who will exercise “com- plete 2d, control over a station’s affairs.” 92 F. C. C. at 855. 7The FCC also policy announced its 1978 statement a tax certificate minority 2d, 983, 19; and other preferences, see F. C. C. and n. 2d, 92 F. Similarly, C. C. today. which are not at issue Media, Inc., gender preference policy, see Gainesville Commission’s (Rev. 1978); 70 F. C. C. 2d Corp., Television Bd. Mid-Florida (Rev. 1978), 69 F. C. C. 2d grounds, Bd. set aside on other Park (1981), 87 F. C. See Winter Com today. C. 2d 203 is not before us munications, FCC, Inc. App. 134, 139-140, 277 U. S. D. n. 873 F. C. Inc., 347, 352-353, (1989); 2d Broadcasting, Metro n. F. Red 3 C. C. 867, n. 1 percent Hispanic ground owned, it was 90 ment on the only partner whereas Metro had one who owned *11 percent enterprise. 19.8 The Review Board found minority outweighed Rainbow’s credit local resi Metro’s advantage. participation Id., dence and civic at The 704. largely the review of Board’s Commission denied decision stating merely “agree[d] without that it the discussion, with (Oct. 1985), 18, Board’s resolution of this case.” No. 85-558 p. App. p. in No. 2, to Pet. for Cert. 61a. sought
Metro
of the Commission’s order in the
review
Appeals for the
States
of
District of Columbia
United
Court
disposition
delayed;
appeal’s
Circuit, but
was
at the
the
Com-
request,
granted a
mission’s
the court
remand of the record
light
separate ongoing
for further consideration
of a
regarding
validity
inquiry at
the
of minor-
the Commission
its
ity
ownership policies, including
minority
and female
the
Inquiry
Racial,
Notice
on
Eth-
enhancement credit. See
of
(1986)
1
nic or
F. C. C. Red 1315
Classifications,
Gender
(Docket 86-484).8
the
The Commission determined that
licensing proceeding
Rainbow and
outcome
the
between
might depend whatever the
concluded
Metro
Commission
inquiry
Appeals’
8 That
v.
grew out of the Court
decision
Steele
279,
FCC,
(1985),
panel
App.
the FCC remand the case without con that the Court prefer sidering the merits FCC to reconsider the basis of its to allow the Commission, policy. granted. “despite The its request ence was prior misgivings, clearly supports has now indicated that it the distress ownership policies, Broadcasting Shurberg sale” and other FCC, 24, 81, Hartford, App. Inc. D. F. 2d 278 U. S. C. (1989) banc), (Wald, J., has dissenting rehearing C. from denial of en them defended before this Court. minority ownership policies, evaluation its general in abeyance pend- licensing proceeding it held the
accordingly See Docket 86-484 review. in the developments further ing Inc., Red C. F. C. Broadcasting, Metro of its Docket 86-484 completion to the Commission’s Prior President enacted and the however, Congress inquiry, for fiscal legislation law the FCC appropriations into signed the Commission from prohibited The measure 1988. year mi- or its change funds to examine any appropriated spending directive, with this Complying ownership policies.9 nority Re- inquiry. Docket closed its Commission Racial, Classifications, Ethnic or Gender examination of (1988). The reaffirmed Order, 3 F. C. C. Red 766 FCC also to Rainbow Broadcasting. in this case of the license its grant *12 (1988). Inc., F. C. Metro Broadcasting, 3 C. Red 866 See and a divided Appeals, to the Court The case returned the license order awarding affirmed the Commission’s panel that its decision was con- concluded Rainbow. The court to and noted that the Com- by prior precedent Circuit trolled n “ relevant by ‘highly congres- action supported mission’s was of the extreme recognition action that showed clear sional and their perspectives of minorities underrepresentation 9 appropriations legislation provided: The “ repeal, to by this Act shall be used to appropriated of the funds That none of, poli- in, a retroactively apply changes to continue reexamination or respect compara- with the Federal Communications Commission cies of granted 26 U. S. C. licensing, tax certificates under tive distress sales and licenses, ownership 1071, broadcasting expand § and women including those amended, F. C. C. or quiry.” 12, prior Broadcast proceedings, which were 1986, policy Continuing Appropriations Act for 2d 607 Rev. Bd. other than to close MM Docket 52 R. R. 2d Facilities, and a established lifting [1301] 68 F. (1978) suspension of (1982) suspended Statement C. which C. 2d were effective Mid-Florida Television pending the 979 and 69 F. No. 86-484 with a reinstatement any Fiscal Year Policy Minority Ownership sales, licenses, conclusion prior 1988, C. C. Pub. applications, 2d Corp., September 1591, as L. 100- [69] in- 202, 1329-31. 101 Stat.
561 media.’” Park the broadcast mass Winter Communica- App. 134, F. 2d tions, FCC, 140, U. S. D. Inc. v. C. (1989), Michigan, App. quoting West 236 U. S. 347, petitions 2d, at for rehear- C., 347, D. F. 613. After ing suggestions rehearing denied, we banc were for en granted 493 U. S. certiorari. emerged dispute from a series of at- in No. 89-700
tempts by Hartford, Center, of a Inc., the licensee Faith minority distress station, to Connecticut, execute television hearing designated 1980, In FCC for sale. December application for of its license. See renewal Faith Center’s (Dec. 1980). In Center, Febru- Inc., Faith FCC 80-680 petition spe- ary filed with the FCC a 1981, Faith Center seeking permission its under the to transfer license cial relief request, granted policy. The Commission distress sale (1981), Inc., but the Center, 88 F. C. 2d see Faith C. completed, pur- apparently proposed to the not due sale was financing. Septem- inability adequate In to obtain chaser’s by granted request Faith ber a second Commission minority- pursue a sale to another Center to distress buyer. rejected objections to the dis- The FCC controlled Shurberg, at that time was act- Alan who tress sale raised capacity.10 ing Center, Inc., 54 Faith in his individual (P&F) (1983); Center, Reg. Faith 1287-1288 Radio 2d (Mass (P&F) Reg. Bur. Media 2d Inc., 55 Radio *13 1984). consummated, not This distress sale also was second buy- apparently on the of similar financial difficulties because part. er’s Broadcasting respondent Shurberg
In December (Shurberg), applied for a Commission Hartford, to the Inc. applica- permit The in Hartford. television station to build a mutually renewal Faith Center’s was exclusive with tion Hartford, Broadcasting of Shurberg owner of Mr. the sole Shurberg is Inc., respondent 89-700. in No. pending.
application, still In Faith then June Center approval request- sought again sale, the FCC’s for a distress ing permission to sell the Astroline station to Communica- (Astroline), Company Partnership minority Limited tions Shurberg opposed applicant. sale to Astroline the on a grounds, including the FCC’s number of distress sale equal protection. Shurberg’s right program violated to urged deny Shurberg therefore the to Commission the dis- request comparative hearing and to schedule a tress sale to application Shurberg alongside the had tendered examine request. renewal In December 1984, Faith Center’s the approved petition permission Faith Center’s FCC to as- sign pursuant license its broadcast to Astroline to the dis- policy. Center, Inc., tress sale See Faith 99 F. C. C. 2d (1984). rejected Shurberg’s equal protection FCC challenge policy the Id., as merit.” “without 1171. appealed
Shurberg the Commission’sorder to the United Appeals Court of for the District of Columbia Circuit, States disposition appeal delayed pending completion but was inquiry minority. of the Commission’sDocket 86-484 into the ownership policies. supra, Congress at 559. After en- signed appropriations the President acted and into law the legislation prohibiting continuing from FCC Docket proceeding, supra, see Commission reaf- granting request assign firmed its order Faith Center’s its pursuant minority license to Hartford Astroline to the dis- policy. Center, tress sale See Faith 3 F. Inc., C. C. Red (1988). Appeals
A divided Court invalidated Commission’s policy. Shurberg Broadcasting distress sale App. FCC, Inc. v. Hartford, 278 U. S. D. C. 876 F. 2d per opinion, panel majority In a curiam held policy “unconstitutionally deprives Shurberg that the Alan Shurberg Broadcasting equal protection rights of their program Fifth under the Amendment because not nar- remedy rowly past promote tailored discrimination or to
563 diversity” unduly program programming bur- and “the nonminority, Shurberg, and not reason- an innocent dens ably Id., it seeks to vindicate.” at to the interests related rehearing at for 24-25, 2d, F. 902-903. Petitions 876 rehearing suggestions denied, banc and we for en were granted 493 U. S. certiorari.
II overriding significance cases in these It is of specifically minority ownership programs been have FCC’s by Congress. approved In Fullilove indeed, mandated — — (1980), Burger, U. Justice Klutznick, S. Chief writing al Justices, and two other observed that himself employs though program “[a] racial or ethnic criteria program employing examination,” when a . . . calls for close by adopted benign an classification is administrative racial explicit Congress, agency we are direction of “bound at the appropriate approach with to the task deference Con our charged gress, co-equal with the branch the Constitution general power ‘provide for . Welfare of the United the . . by appropriate legislation,’ equal enforce, ‘to States’ and protection guarantees Id., Amendment.” of the Fourteenth 515-516, at at n. id., 491; id., 472; at see also (Powell, concurring); con id., J., at 517-520 J., (Marshall, ap explained curring judgment). was We that deference competence Congress’ propriate light institutional as (opinion Burger, Legislature, at id., see National (Powell, J.); concurring), as well J., as Con id., at C. powers gress’ Clause, id., at see under the Commerce J.); (Powell, (opinion Burger, J., at 499 id., C. 475-476 Spending concurring), id., at Clause, see J.), Burger, (opinion Amendments, C. the Civil War J.); Burger, (opinion id., C. id., 476-478 see (Powell, concurring).11 J., de Congress the deference suggestion that 11Justice O’Connor’s § Congress’ powers under 5 of Fullilove entirely rested scribed *15 564
A
Court in
did not
of the
Fullilove
strict
majority
apply
to the race-based
at
issue.
scrutiny
classification
Three
Members
“whether the
of
legislation
th[e]
inquired
objectives
of
are within the
“whether the
Congress” and
limited
power
use of racial and ethnic criteria ...
a constitutionally
is
per-
missible
achieving
objectives.”
means for
the congressional
J.)
of
in
Id.,
Burger,
at 473
C.
(opinion
(emphasis
original).
Three
would
other Members
have
racial
upheld benign
clas-
important
sifications that “serve
governmental
objectives
related
substantially
and are
of
achievement
those objec-
Id.,
tives.”
J.,
at 519
concurring
judgment).
(Marshall,
today.
We
that standard
that
apply
We hold
benign race-
conscious
mandated
measures
if
by
those
Congress12—even
Amendment, post,
simply
Fourteenth
at
incorrect. The Chief
issue,
expressly
enacting
Justice
provision
noted
the
at
“Congress
employed
amalgam
specifically
powers.”
an
its
delegated
S.,
of
448 U.
473.
Kennedy
pretend
We fail to
how Justice
understand
can
that exam
ples of “benign”
apartheid,
race-conscious measures
South African
include
law at
“separate-but-equal”
Plessy
Ferguson,
issue in
v.
Our
(1989), concerning minority
pro-
set-aside
gress that stands above factional a National as argued politics, a matter of “social that as Scalia Justice theory,” reality governmental the Federal Government by unlikely captured minority groups racial or ethnic to be S., as an instrument of discrimination. U. and used concurring judgment). (opinion ex- Justice Scalia struggle justice historically “[t]he plained racial has society against oppression struggle national been “heightened danger States,” because of individual the oppression political large, factions in small, from rather than political Id., units.” 523.14 minority ownership policies pass that the FCC
We hold today. First, we muster under the test announce we find they important governmental objective serve the diversity. they Second, we broadcast conclude that are sub- stantially objective. related to achievement of that
A Congress past inequities that “the effects found stem- ming from ethnic racial and discrimination have resulted underrepresentation severe in the media minorities *17 Rep. p. mass H. R. communications.” Conf. No. 43 (1982). Congress justify and Commission not the mi- do nority strictly ownership policies as remedies for victims of Congress discrimination, this however. and Rather, minority ownership policies primarily FCC have selected promote programming diversity, they urge to diversity that and such governmental important objective
is an that can policies. preference serve as a constitutional basis for the agree. We “[bjecause long recognized scarcity
We have that of the of [electromagnetic] frequencies, permitted the Government is put restraints on licensees favor of others whose views id., (opinion O’ConnoR, J.); Ely,
14 Seealso at 495-496 of The Constitu 723, tionality Discrimination, of Racial 41 Reverse U. Chi. L. Rev. Croson, (1974), S., approval cited with 488 U. at 496. Red Lion medium.” unique on this expressed should be Broadcasting (1969). FCC, 395 U. S. Co. v. 367, of limited number distributing role Government’s Na- “traffic officer,” that of a is not merely licenses broadcast Broadcasting States, v. United Co. tional 319 U. S. regu- be broadcasting may that rather, it is axiomatic (1943); and audi- viewing listening the rights lated in of light of informa- dissemination possible “the widest ence and that is essential sources antagonistic tion from diverse States, Press v. United Associated the public.” welfare of (1945). to re- right the public’s Safeguarding 326 U. S. over the airwaves and information of views diversity ceive a the FCC’s mission. component an integral is therefore “ standard nec- interest” ‘the “public observed We have Amendment principles,’” First invites reference to essarily Broadcasting, Committee National Citizens FCC v. for Broadcasting Sys- Columbia (1978), quoting U. S. Committee, National tem, v. Democratic Inc. U. S. Act of 1934 has des- that the Communications (1973), FCC public.” as “fiduciaries broadcasters ignated League Cal., 468 U. S. Voters 364, 377 Women interest free speech retain their as a whole people “[T]he and their collective of broadcast] other forms radio [and with the ends consistently medium function to have the right is the Amendment,” right and “[i]t the First and purposes of the broadcast- listeners, the right not the viewers supra, at 390. “Con- Lion, Red ers, which is paramount.” receives the public to assure . . . seek may gress of information a balanced presentation this medium through not be otherwise might public importance on issues of in the entirely were left of the medium if control addressed stations.” broadcasting and operate those who own hands of supra, League Voters, Women 377. *18 interest that the we conclude background, this
Against least, an very impor- is, at the diversity broadcast enhancing therefore sufficient and is objective tant governmental basis for the Commission’s minority ownership policies. as Just a “diverse student body” to a contributing ‘“robust ” of ideas’ is a exchange “constitutionally permissible goal” which a race-conscious admissions university program may be predicated, Regents University Bakke, v. of of California (1978) 438 U. S. 311-313 Powell, (opinion J.), the di- versity of views and information on the airwaves serves im- portant First Amendment values. Wygant v. Jackson Cf. Board Education, 476 U. (1986) (Ste- S. J., dissenting).15 The benefits of such diversity are vens, not limited to the members of minority groups who gain ac- cess to the broadcasting industry by virtue of the ownership policies; rather, the benefits redound all members of the viewing listening audience. As found, Congress “the American will public benefit by access having to wider di- versity information sources.” H. R. Conf. Rep. No. 97- supra, 45; see also Minority Ownership Broadcast Stations: before the Hearing Subcommittee on Communica- tions of the Senate Committee on Commerce, Science, and Transportation, (1989) 101st 1st Cong., Sess., 66 (testimony of Roderick Porter, Deputy Chief, Mass Media Bureau of the FCC) (“[T]he FCC’s minority are policies based on our con- clusion that the entire audience, broadcast regardless its benefit”). racial composition, will 15 Wygant In Education, Jackson Board Justice O’Connor noted
that, “although precise uncertain, its contours are a state interest in the promotion diversity of racial has sufficiently been found ‘compelling,’ at education, least higher context of support the use of racial consid erations in furthering S., that interest.” 476 (opinion U. at 286 concurring part concurring judgment). She further “nothing stated that today necessarily Court has said possibility forecloses the that the Court governmental will find other interests which upon have been relied in the lower passed courts but which have not been sufficiently on here to be ‘im portant’ or ‘compelling’ to sustain the policies.” use of affirmative action Ibid. post, Cf. at 612 dissenting). J., (O’ConnoR,
B minority policies ownership We find that the also are sub- stantially related the of achievement the Government’s in- component inquiry terest. One of this concerns the relation- ship expanded minority ownership greater between and diversity; Congress both the broadcast FCC and have deter- relationship Although mined that such a exists. we do not “ judgment Congress ‘defer’to the and the Commission question,” on a constitutional and would not “hesitate to in- voke the Constitution should we determine the Commis- appropriate sensitivity” sion has not fulfilled its task with equal protection principles, System, Broadcasting Columbia Inc. v. Democratic National Committee, S., 412 U. at 103, pay expertise we must attention close to the of the Commis- factfinding Congress analyzing sion and the of when the minority ownership programming nexus between and diver- sity. respect “complex” empirical question, With to this required give “great weight ibid., arewe to the decisions Congress experience of and the the Id., of Commission.” 102. minority participa-
The FCC has determined that increased broadcasting promotes programming diversity. tion in As the Policy in Commission observed its 1978Statement on Mi- nority Ownership Broadcasting “ownership Facilities, way significant [a] broadcast facilities minorities of fos- tering minority program- the inclusion of views area the ming,” minority “[f]ull participation ownership and in the and management of broadcast facilities results in a more diverse programming.” selection of years 2d, 68 F. C. C. at 981. Four explained “steps later, the FCC that it had taken to en- ownership participation hance of minorities in “increas[e] diversity media” in order to the control of diversity pro- the media and thus in the selection of available gramming, benefitting public serving principle Minority Ownership the First Amendment.” in Broadcast- ing, Jonesboro, 2d, also Radio 92 F. C. C. at-849-850. See (“‘[Tjhere (1985) 941, 945, F. 2d is a criti- Inc., 100 C. C. n. underrepresentation broadcast owner- cal minorities ownership participation ship, and full *20 management essential to realize broadcast of facilities goals programming diversity of and diversi- the fundamental ”) (citation omitted). ownership’ The FCC’s con- of fication empirical is an that there nexus between clusion ownership broadcasting product diversity is a of its ex- and pertise, judgment its and we accord deference. reasoning respect with
Furthermore, the FCC’s to the minority ownership policies longstanding with is consistent incep practice under the Act. From its Communications premised public regulation broadcasting of has been tion, assumption ownership will the diversification of broaden range programming of to the broadcast audie the available upon public policy places ownership “it is Thus, nce.16 1953, example, promulgated the first of its mul For Commission rules, ownership promote of which is tiple purpose” “fundamental “to ownership program of in order diversification maximize diversification of to 3.35, 3.24.0, viewpoints.” and 3.636 and service Amendment Sections of of AM, FM, Relating Regulations Oivnership to Multiple Rules and and of Stations, Order, Report Television Broadcast and F. C. C. 291. Initially, multiple ownership only the rules limited common control of The rules include limitations on broadcast stations. Commission’s current broadeast/newspaper cross-ownership, cross-ownership, eable/television cross-ownership, broadcast service and common control of broadcast sta §§73.3555, 76.501 Commission has al tions. CFR ownership, on ways theory “ownership focused on carries with it methods, select, edit, power to to and to manner and em choose presentation, aspect which of phasis of all of the Commission’s are a critical 73.34, 73.240, public with the interest.” Sections concern Amendment of Multiple Relating Oivnership 73.636 Rules to and Commission’s Standard, FM, Stations, Report Television and and Broadcast Second Order, (1975); F. Amendment 50 C. C. 2d also Sections see 73.240, 73.35, Relating Multiple and 73.636 Rules to Own Commission FM, Stations, Standard, Report and ership Broadcast First Television (1970) Order, ownership (multiple “pro- 22 F. 2d rules C. C. viewpoints”); Amend- programming diversification of mot[e] sources primary respect reliance with content, diversification of historically proved significantly and that has be influential respect presentation with to editorial comment and the App. news.” TV Inc., C., U. S. D. at 358, 2d, 495 F. added). (emphasis at 938 The Commission has never relied on the market alone ensure that the needs of the audience elementary regulatory are met. Indeed, one of the FCC’s assumptions purely is that broadcast content is not market if driven; were, it would there be little need for consideration licensing integration decisions of such factors as of owner ship management, participa residence, local and civic compared minority prefer tion. In this vein, the has FCC integration ences to local residence and other credits: “[B]oth minority ownership local residence and are fun- licensing damental considerations in our scheme. Both *21 policies complement our concern with diversification of ownership. control of broadcast Moreover, similar as- sumptions policies. underlie both We award enhance- [i]t ment credit for local residence because . . . is ex- pected [an] knowledge community that increased of the programming. of license will be reflected a station’s minority ownership Likewise, participa- credit for and comparative proceeding [because] tion is awarded in ‘minority ownership likely diversity is to increase of especially opinion viewpoint.’” content, of and Radio (footnotes omitted). supra, Jonesboro, Inc., at 73.35, 73.240, ment Sections and 73.636 Relating Commission's Rules Standard, FM, to Multiple Oumership and Television Broadcast Sta- tions, Order, (1964) Report (“[T]he and 45 F. C. C. greater diversity area, the ownership particular in a the less chance there that a single person group is or can have ‘an inordinate effect in a . . . sense, programming public level’”); opinion on at the regional Editorializ- Licensees, (1949) ing by Broadcast 13 F. (ownership C. C. en- ables personal licensee “to insure that viewpoint any particular his issue broadcasts”). presented in is his station’s
Congress its view that also has made clear the ownership goal programming. policies the of diverse advance Congress specificallyrequired years, has the Com- In recent legislation, through appropriations the mission, to maintain minority ownership policies without alteration. See n. ignored supra. however, be if the remiss, We would we history congressional support policies prior long for those passage appropriations because, of the Acts for the to consistently Congress recognized past decades, two has by entering minorities in encountered broadcast barriers industry emphatic support expressed has for the Com- attempts promote diversity programming in- to mission’s minority ownership. Limiting analysis creasing our history legislative appropriations Acts immediate [a] question an artificial barrier to full under- “would erect standing process.” legislative Klutznick, Fullilove (Powell, concurring). “special S., J., at 502 U. legislative body Congress] [of as a lies its broader' attribute opinions investigate all facts and consider mission may appropri- relevant the resolution of an issue. One be expertise Congress ac- information ate source legisla- quires in the consideration and enactment of earlier legislated repeatedly Congress area of After has an tion. may gain experience concern, re- its Members national hearings prolonged or when the need fresh debate duce *22 again Congress Id., action in that area.” at considers J.) (“Con- (opinion Burger, also at 478 of C. 502-503; id., see may compiling gress, legislate of course, of without the kind judicial appropriate respect to administrative with or ‘record’ proceedings”).
Congress’ experience began 1969, when it considered comparative hearing in li- would have eliminated bill that filing proceedings, to avoid “the of renewal order cense competing multiplicity applications, groups of often from un- predictability and to restore order and known” to the renewal process “give the current license holder benefit by previous experi- doubt warranted his investment and (1969) (letter Scott). Cong. Rec. ence.” of Sen. Congress testimony that, heard because the most valuable assigned many years ago, compara- were broadcast licenses hearings stage important oppor- tive at the renewal afford an tunity groups, particularly gain for excluded minorities, to industry.17 entry Opponents into the warned that the bill minority groups ownership “exclude would from station important “fr[eezing]” markets” the distribution of exist- ing Congress rejected licenses.18 the bill.
Congress again confronted 1974, the issue in 1973 and congressional hearings when subcommittees held extensive proposals period on to extend the broadcast license from years modify comparative hearing three five process for license renewals. Witnesses reiterated that re- provided opportunity newals a valuable ob- minorities to industry.19 proposals tain a foothold were never process enacted, renewal and the was left intact.
17 Amend Hearings the Communications Act of 1934: on S. 2004 be fore the Subcommittee Communications of the Senate Committee on (1969) Commerce, Sess., Cong., p. 91st 1st pt. (testimony of Earle id., Moore, Broadcasting); National pt. Citizens Committee for at 520- Union); id., Pamberton, (testimony of John American Liberties Civil at Batzka, (testimony David Missionary Society); 566-567 United Christian id., Bank). (testimony Hudgins, at 626-627 of William Freedom National 18 Id., (testimony McLaughlin, at 642 of John then associate editor magazine). America Hearings See Broadcast License Renewal: R. 5546 on H. et al. before the Subcommittee on and Power Communications of the House Committee Commerce, Foreign Sess., Cong., on Interstate 93d 1st pt. (1973) Hanks, (testimony pp. Community Pittsburgh 495-497 William E. id., Change); (testimony George Coalition for Media 552-559 Rev. Brewer, Greater Dallas-Fort Worth Coalition In for the Free Flow of id., formation); McCuller, (testimony at 572-594 of James for a Action Inc.); id., Community, pt. (testimony Better Ham- Morton
During 1978,both the FCC and the Officeof Telecommuni- Policy presented Congress cations their to it views as consid- deregulate industry. pro- ered a to the bill broadcast posed among Act of have, Communications 1978would other replaced things, comparative lottery hearings with a and cre- purchase sought a ated fund for minorities who to stations. by Markey, Representative As described the measure was opportunities to intended increase “the for blacks and women country get in this other minorities into the communi- systems country point cations this so that their of view and represented.” their interests can be The Communications Hearings Act of 1978: on H. R. 13015before the Subcommit- tee on Communications the on House Committee Inter- Foreign Cong., Commerce, state and Sess., 95th 2d vol. pt. p. sponsor, Representative The bill’s Van hope, Deerlin, stated: “It the was with some reason the expectation of the framers of bill, the that the most effective way inadequacies industry to reach the of the broadcast employment programming by doing something be would top, increasing minority ownership at is, and man- agement and control in broadcast stations.” vol. Id., 3, at 698. objected lottery proposal
The Executive Branch to the on ground by eliminating that it would harm minorities granted comparative hearing credit under scheme as de- veloped Although See id., FCC. at 50. it acknowl- edged lottery be could structured to alleviate con- by attributing weight minority ownership, cern see id., explained preferred at 85, Branch Executive that it burg, adjunct professor law, assistant of communications New York Uni- versity); Broadcast License Renewal Hearings Act: al. S. 16 et before the Subcommittee on Communications of the Senate Committee on Com- merce, (1974) Cong., Sess., pt. pp. 93d 2d (testimony of 325-329 Ronald id., Brown, H. League); National (testimony Gladys Urban 376-381 Media); id., Lindsay, T. Citizens (testimony Committee on at 408-411 Joseph Rauh, Jr., Leadership L. Rights Conference on Civil and Ameri- Action); id., cans pt. for Democratic (testimony Manuel Fierro, Americans). Spanish Raza Association of Surnamed *24 credit for grant minority ownership during comparative hear- aas more tuned ings finely way of the achieving Communica- ibid, tion Act’s goal of broadcast diversity. (contending that a lottery would not take into account the individual communities). needs of particular no Although lottery was enacted legislation that year, Con gress continued to the explore idea,20and when in 1981 it ulti mately authorized a lottery procedure, Congress established a concomitant system of minority preferences. See Omnibus Budget Reconciliation Act of L. Pub. 97-35, 95 Stat. 357, 736-737. The Act that where provided more than one for an initial application license or construction permit was received, the Commission could the license grant or to permit a qualified applicant the a “through use of system of random §309(i)(l) (1982 selection,” 47 U. S. C. ed.), so as the long FCC rules to adopted ensure “significant preferences” in the lottery to process groups underrepresented the ownership 309(i)(3)(A). of § telecommunications facilities. The ac Conference companying announced Report “firm Congress’ intention” to award a to lottery preference minorities and other historically so underrepresented groups, that “the ob jective of the increasing number of media outlets owned by such or persons be met.” groups H. R. [would] Conf. Rep. (1981). 97-208, No. p. After the FCC complained of the difficulty of defining “underrepresented” groups and raised other problems statute,21 the concerning Congress enacted a second lottery statute its intention in reaffirming unmistak able terms. Section 115 of the Communications Amend- 20,For example, proposed the Act Communications of 1979 would have provided any minority applicant previously for a unassigned license would be counted twice in lottery pool. See Staff of the Subcommittee on Communications of the House Committee on Foreign Interstate and Commerce, H. R. “The Section-by- Communications Act of 1979” (Comm. Analysis, 1979). Sess., Section 96th Cong., 1st 39-41 Print 21See Amendment Part 1 Commission’s Rules to Allow Selection Among Mutually Competing Exclusive Applications Using Random from or Selection Lotteries Instead Comparative Hearings, 89 F. C. C. 2d (amending L. Act of Pub. Stat. ments 309(i) (1982 ed.)), any random se- directs that §C. 47 U. S. FCC, be a by preference conducted lection lottery whose license would every applicant receipt granted ownership of mass media the diversification increase media diversify ownership further that, “[t]o communications, significant preference [is an additional mass member or mem- controlled any applicant to be given] §309(i)(3)(A). Observing that a minority group.” bers “has been ownership programming nexus between by both Commission recognized repeatedly *25 it “to the courts,” sought promote Congress explained and diversifi- consequent ownership of media diversification a that “is content,” grounded principle cation of programming H. R. Conf. No. Rep. Amendment.” the First (1982). new mandate from the Congress, 40 With this p. lottery use of a sys- rules the adopted govern Commission low stations.22 tem licenses for television power to award to the Congress The issue returned minority ownership hearing held when a House subcommittee a 1986,23 October of its validity into the inquiry examine the Commission’s chair ex- subcommittee minority ownership policies. of this important message his view that most pressed “[t]he Alloiv the Rules to Selection 22 See Amendment the Commission’s of Applications Among Using Random Selection or Competing Certain from (1983). Hearings, 93 Comparative Lotteries Instead C. 2d 952 F. C. 23 proposals briefly in Congress, The issue the 98th where had surfaced the codify ownership policies the were sub expand and FCC’s Minority Participation in ject hearings the in the House. See extensive Telecommunications, on Con the Subcommittee Hearings Media: before Energy Protection, and Finance of the House on sumer and Committee (1983); Commerce, Parity the Minorities in Media: Cong., 98th 1st Sess. for Telecommunications, Hearing on H. R. 1155 before Subcommittee on Protection, Energy Finance of the House on and Consumer and Committee Commerce, (1983); and Cong., Regulation Station 98th 1st Sess. Broadcast Ownership: 6122 H. R. before the Subcommit Hearings on H. R. and Protection, Telecommunications, tee and Finance on Consumer (1984). Commerce, Cong., 2nd Sess. Energy House Committee on 98th passed. No legislation was is that the Commission not
hearing today, must dismantle these longstanding which diversity policies, Congress has re peatedly endorsed, such time as until or courts Congress direct otherwise.” Minority-Owned Broadcast Stations: Hearing on H. R. 5373 before the on Subcommittee Telecom munications, Protection, Consumer and Finance of House Committee on Energy Commerce, Sess., 99th Cong., 2d (1986) Wirth). After (Rep. Commission an issued order holding abeyance, pending completion the inquiry, on actions licenses and distress sales in which minority a pref erence would be number dispositive,24 of bills proposing codification of the minority ownership policies were intro duced in Members of Congress.25 Congress questioned rep resentatives of the during FCC hearings over six span months 1987 with to the respect FCC for fis appropriation cal year 1988,26 to reauthorize legislation the Commission for 1989,27 fiscal years 1988 and and legislation to Com codify the mission’s minority ownership policies.28 Racial, Classifications, Notice Inquiry Ethnic or Gender (1986), amended, F. C. Red C. as 2 F. C. C. Red 2377 recognized These bills link minority ownership between diver sity. introducing example, In S. Lautenberg explained Senator *26 “[d]iversity ownership promote diversity of Minority does of views. . . . broadcasters a not They serve need that is as well as served others. (1987); id., address issues Cong. that others do not.” 133 Rec. 9745 also see (H. (H. id., 1090); (S. 1277). 293); id., at 860 R. at 3300 R. at 13742-13745 Commerce, Justice, State, Judiciary, 26 See Agencies the and Related Appropriations Hearings Fiscal for Year 1988: on H. R. 2763 a before Sub of Appropriations, committee the Senate on Cong., Committee 100th 1st (1987). Sess. 27See FCC Hearing Authorization: before the Subcommittee on Commu Commerce, of Science, nications the Transporta Senate Committee on and tion, Sess., (1987); Cong., 100th 1st 55 and FCC NTIA Authorizations: Hearings on H. 2472 R. before the on Subcommittee Telecommunications Commerce, and Energy Finance of the on House Committee and 100th (1987). Sess., 130-131, Cong., 1st Broadcasting Improvements
28 See Act of Hearings 1987: on 1277be S. fore the Subcommittee on Communications of the Senate Committee on Commerce, Science, (1987). Sess., Transportation, Cong., and 100th 1st 51 578 appropriations
Ultimately, Congress employ to its chose minority ownership policies place keep power in the to FCC’s Report year supra, at 560. The fiscal 1988.29 for See explained: Appropriations originating “The on Committee policies Congress expressed support for such in the has its diversity ownership promoting past of of and has found that important public policy goals. properties broadcast satisfies diversity programming Diversity ownership in results minority improved and women audiences.” S. service and (1987). p. recognized Rep. Committee No. 76 continuity congressional action in the field of the lottery sys- “[i]n ownership policies, noting approving a Congress licensees, for the selection of broadcast tem certain preferences promote explicitly approved minor- the use ity ownership.” Id., at 76-77. and women prohibition
Congress has twice the extended the use repeal minority ownership modify appropriated funds to or upon policies30" focus For and has the issue. continued year example, legislation, in fiscal the debate on the 1989 Hollings, authorizing the committee chair of both Senator presented appropriations FCC, the for the and subcommittee by summary report prepared to the Senate of a June 1988 (CRS), Minority Congressional entitled Research Service 29 Congress standstill,” “kind simply did not of mental direct Winter 2d, Park, (Williams, J., App. C., 277 D. F. U. S. concur part part), appropriations ring dissenting legislation but rather policies expressed unqualified minority ownership and support its Congress’ that in view instructed the Commission in no uncertain terms Acts, study topic Appropriations further. like there was no need to laws, they “passe[d] [by] are any binding other are both Houses because Munoz-Flores, signed . . . v. President.” United States (1990); id., (Stevens, J., concurring judgment). U. S. at 401 (1980); Will, also States v. S. United U. United States Dickerson, 310 U. S. Commerce, Justice, State, Departments Judiciary 30 See *27 Act, 1989, 100-459, Agencies Appropriations Pub. L. Related 102 Stat. Commerce, Justice, 2216; Departments State, Judiciary and Re and Act, Agencies Appropriations Pub. L. 1020. lated Stat. Ownership Programming: Broadcast Station and Broadcast study, Hollings reported, Is There a Nexus? The Senator “clearly minority ownership demonstrates that of broadcast diversity viewpoints presented stations does increase the Cong. over the airwaves.” 134 Rec. 18982 As revealed the historical evolution of current federal policy, Congress both and the Commission have concluded minority ownership programs that the are critical means of promoting diversity. give great weight broadcast We must joint to their determination.
C judgment expanded The that there is a link between mi- nority ownership diversity and broadcast does not rest im- permissible stereotyping. Congressional policy does not as- every minority ownership sume management that case minority-oriented will programming lead more or to the expression “minority viewpoint” of a discrete on the air- pretend programming waves. Neither does it that all that appeals minority “minority pro- audiences can be labeled gramming” programming might that or be described as “minority” appeal does not to nonminorities. Rather, both Congress simply expanded and the FCC maintain minor- ity ownership aggregate, of broadcast outlets in will, re- greater diversity. broadcasting sult in industry broadcast A representative minority participation produce with will more diversity variation ownership than will one whose single racially ethnically homogeneous drawn group. from predictive judgment about the overall result of minority entry broadcasting rigid assumption into is not a minority every about how owners will behave in case but rather is akin to Justice Powell’s conclusion Bakke greater admission of minorities would contribute, on aver- age, exchange “to the ‘robust S., ideas.’” 438 U. at 313. guarantee To be sure, there is no ironclad that each diversity. owner will contribute to But neither was there an *28 minority would interact students in Bakke that assurance particular minority nonminority or students that with “minority” typical distinct or would have admitted students J.) (noting (opinion Powell, viewpoints. id., of at 312 See pro- “widely believedto be only educational excellence that added); body”) (emphasis by id., at a diverse student moted (“ things, hard know how, it is to ‘In the nature of n. 48 “learning through if, diver- when, and even this informal and sity” omitted). ”) (citation actually occurs’ by guided Although to extent some all station owners are Congress programming decisions, in their demand market may there be im- have determined that the Commission and portant practices broadcasting of mi- between the differences nonminority counterparts. nority and those of their owners judgment there is a nexus conclusionthat be- This —and broadcasting diversity minority ownership and tween —is empirical a host of evidence.31 Evidence corroborated 8,720 example, analyzed the CRS data some FCC-licensed For from stations correlation between strong radio and television and found minor diversity CRS, Minority ity ownership of programming. See Broad Ownership and Is There Programming: cast Station Broadcast Nexus? (June 1988). only with percent While no Afro-American stations responded programming at ownership they attempted that Afro- to direct audiences, percent ownership Afro-American American stations with id., percent reported they Only 10 that did so. at stations See 13. Hispanic ownership they targeted programming stated that without audiences, percent Hispanic while 59 owners Hispanic of stations with said id., 15. they concluded: did. CRS minority argument policies can be made that that enhanced . . “[A]n FCC . minority may have ownership station resulted in and other audience more increasing minority program- To targeted programming. degree ming adding programming markets across audience is considered diver- then, data, sity, survey argument the FCC can be made based on an contributed, turn, policies programming preference the FCC diver- Id., page. sity.” at cover surveys support the is a FCC’s determination there nexus be-
Other University of ownership programming. study A Wisconsin tween Afro-American-owned, radio found that Afro-American-oriented stations white-owned, playlists have more diverse than Afro-American-oriented suggests influences selec- status that an owner’s coverage presentation topics and the edito- news tion of particular viewpoint, especially concern to on matters rial spe- “[Minority ownership appear have does minorities. minority images presentation impact in local cific *29 minority-owned to devote stations tend as news,”32inasmuch minority topics and to avoid ra- of interest more news time stereotypes portraying In in ad- minorities.33 cial and ethnic likely a is more owner dition, studies show important managerial employ roles in other minorities Jeter, Analysis Programming Prac- Comparative A stations. See J. and White-Owned Black-Oriented Radio Stations tices of Black-Owned (1981) 130, (University Wisconsin- of Black-Oriented Radio Stations Madison). in Broad- Spitzer, Justifying Minority Preferences M. See also Paper No. Working Technology of casting, California Institute 1990) (March might why minority owner af- (explaining status of pp. 19-29 behavior). programming fect Images in Local Fife, Minority Minority Ownership on Impact The of Change, Political News, KeyA to Economic and TV Communications: University Communi from the 15th Annual Howard Proceedings Selected (1986) Metropolitan (survey Sta of four Standard cations Conference Fife, Minority Ownership on Impact Areas); M. The of see also tistical 1986) (June (report Study 52 A Multi-Market Broadcast News Content: Broadcasters). of Association submitted to National 3,000 survey of University Boston of Massachusetts at example, For in the statistically significant difference found local Boston news stories K. events, ownership. See John depending on the race of treatment (Jan. 1987) Community son, Black Images of Boston’s Media Institute). (William an Afro- comparison A between Monroe Trotter in Detroit station station and a white-owned American-owned television coverage between the topic mix overall and location concluded that “the different, higher use of blacks statistically and with its two stations is significance, racial higher coverage of issues of and its newsmaker roles represent a different station’s] content does Afro-American-owned [the Fife,M. The station].” of the white-owned perspective [that on news than A Case Ownership Program Content: Impact Minority On Broadcast Content, National Associ Report to the Study Local News of WGPR-TV’s 1979). Broadcasters, (Sept. Planning 45 Office Research and ation of 1990) (2d Press, ed. A. Wolseley, Black S. R. The U. See also minority ownership). importance of (documenting policies.34 impact they station If the have an on can where employment policies equal . . “ensure that. licensees’ FCC’s viewpoints fairly mi- programming the tastes and reflects nority groups,” S., n. it FPC, 425 U. NAACP deny minority-owned stations follow difficult policies employment will their own also contribute to such diversity. no illusion that members of a While we are under minority group cohesive, particular share some collective legitimate Congress viewpoint, inference for believe it a we gain to draw that as more minorities and the Commission ownership policymaking varying per- media, roles fairly represented spectives be more on the airwaves. will product “‘analysis’” policies are thus a rather than stations, example, radio have hired Afro- Afro-American-owned top important job categories management and other at far Americans stations, than have white-owned even those with higher rates Afro- *30 Hispanic hiring formats. The same has been true of at American-oriented stations, compared Spanish- Hispanic-owned Anglo-owned to stations with EEO, Honig, Relationships Among Program See language formats. Serv ice, Ownership in Minority Regulation, Proceedings Broadcast from Policy Telecommunications Research the Tenth Annual Conference 88-89 1983). (0. 1986, Espinoza, September Gandy, P. & J. Ordover eds. As of Hispanic managers general the 14 Afro-American or at TV stations half of minority-owned or in the States worked at controlled stations. United Broadcasters, Minority Broadcasting Association of See National Facts 1986). 1981, (Sept. Spanish-language In 15 55-57 13 of the radio by Hispanies majority in the United States owned also had a stations of management positions, only Hispanics Anglo-owned while a third of majority Hispanic managers, Spanish-language stations had a of 42 Anglo-owned, percent Spanish-language Hispanic stations had no of Minority managers Singleton, at all. See Schement & The Onus of Owner Radio, 78, Policy ship: Spanish-Language 31 J. Communication FCC (1981). Johnson, (“Many generally supra, agree 80-81 observers single largest poor coverage reason that the for the networks’ of racial staffs”); makeup networks’ own news is related to the racial 2, Wimmer, (“[M]inority-owned n. at 426-427 broadcast supra outlets tend minority employees. policy ownership ... A to hire more time, could, growth minority employment, to a which over lead has been (footnotes omitted). minority-responsive produce programming”) shown to “‘stereotyped ‘“[h]abit.’” Fullilove, based on reaction”’ (citation dissenting) S., J., 448 U. n. 4 (Stevens, omitted). reasoning employed by Our cases that the demonstrate Congress permissible. recog- We have Commission and requirement example, nized, for that fair-cross-section groups forbids the on the the Sixth Amendment exclusion gender jury as race and from a basis of such characteristics requirement, “[without venire State could because produce pool pro- up jury draw in such manner as to lists spective jurors disproportionately disposed ill towards one or likely yield petit to defendants, all and thus more classes of juries disposition.” Illinois, Holland v. with similar step logic It is a small from this U. S. 480-481 electromag- including in the minorities the conclusion likely produce spectrum a “fair cross netic will be more Missouri, Duren v. section” content. Cf. of diverse (1979);Taylor Louisiana, v. 357, 358-359, 363-364 U. S. (1975).35 many voting addition, In of our
U. S. 531-533 assumption rights operate on the that minorities have cases worthy protection. particular viewpoints and interests “ example, safeguarding the ‘effec- held, We have ” minorities, racial tive exercise of the electoral franchise’ Williamsburgh, Organizations Inc. v. United Jewish (1977) quoting (plurality opinion), Carey, 144, 159 430 U. S. (1976), per- “[t]he 130, States, 425 U. S. Beer v. United eliminating criteria is not confined missible use of racial (1972) (opinion of Mar Kiff, Peters 407 U. S. See also *31 J.) (“[W]e shall, assumption that the exclusion unwilling to make the are any large only involving race. When for issues Negroes of has relevance service, jury community the is excluded from segment and identifiable of nature and jury qualities of human the effect to remove from the room is perhaps and range which is unknown experience, human the of varieties of group will necessary that the excluded unknowable. It not to assume do, conclude, its exclusion we consistently a class in order to as vote as may have unsus deprives jury perspective on human events that the of a may importance any presented”). be pected in case districting apportion- past discriminatory or of the effects subject §5 S., Rather, a to at 161. State of 430 U. ment.” Rights Voting amended, as Act of 79 Stat. the § “deliberately preserv[e] creat[e] may or 1973c, C. U. S. particular majorities to in in order ensure districts black reapportionment plan complies §5”; with “neither the its any per mandates nor the Fifteenth Amendment Fourteenth districting appor- using against racial factors se rule S., 430 U. at 161. tionment.”
D minority ownership policies the are in find that other We substantially goal respects promot to the related of relevant ing diversity. adopted First, the Commission broadcast minority ownership preferences only Congress endorsed study long painstaking of all consideration available after (opinion Fullilove, S., 448 U. alternatives. J.); (Powell, concurring). Burger, id., J., at 511 of C. For years, attempted encourage diversity many to FCC of programming content the race without consideration issue, owners.36 When it first addressed a 1946 station pro has over The Commission eschewed direct federal control discrete See, g., gramming decisions radio and television stations. e. Network Policy, Inquiry, Report Reg. Programming and Statement Fed. (1960) (“[W]hile may they inquire the Commission licensees what have community serve, they propose determine needs of the done to may impose pub upon private not them its notions of what the Commission hear”). diversity by In lic ought order to ensure means of adminis decree, required the Commission would have been to familiarize it trative every community monitor the needs and to self with broadcast every likely presented station. would have in content Such scheme difficulties, practical light surmountable of the thousands of broadcast myriad in the outlets United States and the local variations audience policy plan and interests. Even were such an ambitious of central tastes feasible, ning it would have raised First Amendment issues” if it “serious ability particular program pub “carry a broadcaster or to denied views,” censorship particular pro if it of a “government own risked lish his gram,” government dominating public if it led to “the view or official broad FCC, (1969); Broadcasting Lion U. S. casting.” Red Co. v.
585 Li- Broadcast Responsibility Public Service entitled report (Blue stated that although the Commission Book), censees service, for program primary responsibility licensees bore in the licenses broadcast sta- renewing and issuing “[i]n consideration particular tions, give [would] the Commission to the factors relevant inter- public service to four program altered course In the Commission at 55.37 Id., est.” li- of the ingredient that “the somewhat, announcing principal in the his station interest public to operate censee’s obligation effort... to discover continuing positive is the diligent, of his or tastes, needs, community and desires fulfill the Network area, Program- for broadcast service.” service Policy, Reg. Fed. and Statement Report ming Inquiry, (1960). that meet they advised could Licensees were members the lis- ways: by canvassing two this obligation the station’s signal, by who could receive tening public . . . and who life others community “leaders with meeting Id., make up community.” interests which bespeak at 7296. that these efforts it had become obvious 1960’s, late
theBy
diversity
programming.
sufficient
failed to produce
had
warned that the vari
Commission,
example,
The Kerner
(1940).
Station, 309 U. S.
Brothers Radio
cf. FCC
Sanders
v.
Court,
Commission,
“avoid[ed]
has therefore
approval
with the
of this
The
interpreted
and has
discretion”
unnecessary restrictions on licensee
journalistic
“seek[ing]
preserve
discre-
1934 as
Act of
Communications
FCC
listening public.”
promoting the interests
while
tion
Guild,
Listeners
WNCN
U. S.
programs
carried
un-
a station
was the extent
to which
factor
One
public is
during hours “when the
by
advertisers
sponsored
commercial
The Commission believed
listening.”
Book 55-56.
Blue
awake and
popular
the broadcast of less
diversity by permitting
expand
this would
and interests
appeal
particular
tastes
would
programs
id.,
See
at 12. Sec
go unserved.
might
otherwise
listening audience
encourage
local self-
ond,
programs
live
called for local
the Commission
id.,
Third,
expected “program
the Commission
at 56.
expression.
Ibid.
final factor
public
issues.”
[ming]
to the discussion
devoted
Ibid.
advertising
the licensee.
aired
amount
was the
*33
of the media “have not communicated to whites
elements
ous
a
for the difficulties
frustrations of
feeling
being Negro
a
United States.
have not shown
They
understanding
in the
thus have
communicated —a
of—and
not
appreciation
or
or
. . . The
culture,
thought,
of
world
Negro
history.
sense
television and
offer to their black audience
newspapers
.” Report
white . . .
of the National Advi
totally
is almost
(1968).
Disorders
In response,
Commission on Civil
210
sory
employment
FCC promulgated equal
opportunity regula
supra,
tions,
554-555,
see
and formal “ascertainment”
a broadcaster as a condition of license “to
requiring
rules
as
needs and interests of the residents of
problems,
certain
other
his
of license and
areas he undertakes
to
community
“what
he
serve,”
proposes
and to
broadcast matter
to
specify
Primer on
As
meet those
needs
interests.”
problems,
certainment
Community Problems
Broadcast
by
Appli
of
(1971).38
cants, 27 F.
682
650,
C. C. 2d
The Commission ex
it
there was “no
plained
although
recognized
single
stations,”
answer for all
“
it
each licensee to devote
expected
a
” of a
‘significant
station’s
com
proportion’
programming
(citation omitted).39
Id., at 686
munity concerns.
Com
policies
guard against
38 TheCommission also devised
discrimination
example,
“arbitrar[y]
programming.
For
it determined that
refus[al] to
present
group,
programming,
members of an ethnic
or their
or
views”
present
groups
integrated
refusal to
members of such
“in
situations with
groups,”
members of
would
license
ground
other
constitute a
for
nonre-
(1970).
Center,
705,
newal.
Citizens Communications
25 F. C. C. 2d
addition,
developed
guidelines,
39In
the Commission
nonentertainment
pro
percentage
which called for
to devote a
of their
broadcasters
certain
news,
affairs,
subjects
gramming
public
public
to nonentertainment
such as
announcements,
Guild,
topics.
service
and other
See WNCN Listeners
41;
supra,
Programming
n.
Revision
and Commercializa
Policies,
Requirements,
Program Log Require
tion
Ascertainment
Stations,
1076,
ments
2d
Commercial Television
98 F. C. C.
for
(1984) (hereinafter
Television)-,
Radio,
Deregulation
Deregulation
(1981).
Applicants
guideline
F.
2d
proposing
C. C.
less than
applica-
programming
amounts of nonentertainment
could not have their
expressly
“minority
groups”
mission
included
and ethnic
as
segments
community
expected
that licensees were
g.,
Community
e.
See,
consult.
Ascertainment
Problems
by
Applicants,
(1976);
Broadcast
57 F.
C. C. 2d
Community
Ascertainment
Problems Noncommercial
Applicants,
Educational Broadcast
54 F. C. C. 2d 766, 767,
(1975).
The FCC held that a broadcaster’s failure to
minority groups
ascertain and serve the needs of sizable
in its
responsibility
service area
inwas,
itself,
failure of licensee
regardless
any
intent to discriminate and was a sufficient
ground
g.,
Chapman
nonrenewal of license.
e.
See,
Co.,
Radio and Television
24 F. C. C. 2d 282, 286
*34
“[t]he problems
The Commission observed that
of minorities
by
be
planning
must
taken into consideration
broadcasters in
program
their
schedules to meet the needs and interests of
they
the communities
are licensed to serve.” Time-Life
(1972);
Broadcast, Inc.,
33 F. C. C. 2d
see also
Mahoning Valley Broadcasting Corp., 39 F. C. C. 2d
(1972);
Broadcasting Corp.,
WKBN
30 F. C.
C. 2d
(1971).
policy,
example,
Pursuant to this
the Commis
eight
sion refused to renew licenses for
educational stations
application
in Alabama
per
and denied an
for a construction
ground
ninth,
mit for a
all on the
that the licensee “did not
take the trouble to inform itself of the needs and interests
minority group consisting
percent
population
of a
of 30
of the State of Alabama” and that such a failure was “fun
damentally
obligations
irreconcilable with the
which the
places upon
Communications Act
those who receive authori
zations to use the airwaves.” Alabama Educational Televi
(1975),
sion
citing
Comm’n, 461, 472,
F. C.
2d C.
Red
(1969).
Broadcasting
Lion
v. FCC,
Co.
nities, see 57 F. C. C. See, ascertainment system. improvements sider on Ascertainment Commu Primers Amendment e. g., Broadcast Renewal Appli by Problems Commercial nity Educational Broadcast Appli and Noncommercial cants (P&F) 189 cants, Licensees, 47 Radio 2d Permittees and Reg. had determined however, the Commission By not broadcast content were at influencing these efforts even diver- adequate programming means of generating effective “[wjhile industry the broadcasting The FCC noted that sity. to its ascertainment positively whole responded has on the in its employ- strides significant and has made obligations the views of observe that compelled we are practices, ment be inadequately represented minorities continue to racial Statement, Minority Ownership broadcast media.” omitted). (footnotes 2d, support, As F. C. C. at 980 Commission cited a United States report Commission underrepre- that minorities “are which found Rights, on Civil on the television programs on network dramatic sented frequently do are they appear they news. When network Dressing roles.” Window token or stereotyped seen *35 1977). “despite The FCC concluded that Set 3 (Aug. the rules employment of importance equal opportunity our in of assuring diversity program- ascertainment policies and necessary measures are it that additional ming appears In the Commission believes this regard, appropriate. sig- minorities is another by of broadcast facilities ownership in views minority the inclusion of nificant of way fostering see also 2d, 981; 68 F. C. C. at the area of programming.” Advancement Minority Regarding Policy Commission (1982) in F. Broadcasting, C. C. 2d Ownership (“[I]t minority order to broaden became apparent airwaves, additional influence over voices and spheres measures beyond were necessary” the equal employment rules).40 ascertainment
In short, the Commission established minority ownership preferences after only long experience demonstrated that race-neutral means could not produce adequate broadcasting not diversity.41 FCC did act precipitately devising the programs today; we uphold contrary, Commis sion undertook thorough evaluations of its policies three times —in 1960,1971, and 1978—before adopting minority In ownership programs.42 endorsing the minority ownership 40 The recently Commission eliminated its policies ascertainment stations, commercial radio and television together with its non- entertainment programming guidelines. Deregulation Radio, supra, 975-999, denied, (1981), reconsideration 87 F. C. C. 2d 797 rev’d grounds on other sub nom. Communication the United Church Officeof FCC, Christ v. App. (1983); D. U. S. C. 707 F. Deregula 2d 1413 of tion Television, supra, denied, reconsideration (1986), F. C. C. 2d 358 remanded on grounds other sub nom. Action for FCC, Children’s Television v. App. U. S. D. 821 F. C. 2d 741 (1987). The Commission found that the imposed sig ascertainment rules nificant burdens on licensees without producing corresponding benefits responsiveness terms of community 2d, issues. See 98 F. C. C. at 1098 (“Ascertainment procedures . . . were intended aas means of ensuring actively problems, licensees discovered the facing needs and issues Yet, their communities .... we have procedures no evidence that these effect”) (footnote omitted). have had such an 41Although the Commission has concluded growth that “the of tradi tional broadcast development facilities” and “the of new electronic informa tion technologies” have rendered “the unnecessary,” fairness doctrine Re port Concerning the General Fairness Doctrine Obligations Broadcast Licensees, (1985), 102 F. C. C. 2d the Commission has not made finding such a respect with to its ownership policies. To the con trary, expressly the Commission has noted that abrogate its decision to fairness doctrine does not its view call question into “regulations its de (Reconsider signed promote diversity.” Syracuse Peace Council ation), 2035, 2041, 3 F. C. C. Red n. 56 42Justice O’ConnoR offers few policies race-neutral to the alternatives FCC has already that the employed wanting. found She insists that “[t]he FCC could directly advance its requiring pro interest licensees to *36 vide programming Post, that the FCC diversity.” believes would add to Congress agreed
preferences, with the Commission’sassess race-neutral had failed ment that alternatives to achieve the necessary programming diversity.-43 policy the the at 622. But Commission’s efforts to use ascertainment to community the programming comparative determine needs of each and the provide licensing procedure pro- to to licensees incentives address their system to these needs met with A gramming failure. of FCC-mandated fate, programming would have the same “diverse” suffered while introduc- as well. See n. ing problems supra. new proposal applicants that FCC . . . “[t]he evaluate O’Connor’s Justice offer, ability provide, upon to to program- their commitment whatever underrepresented FCC believes ming viewpoints,” post, would reflect 623, similarly ignores practical in determining difficulties the “un- viewpoints” community. addition, derrepresented of each In Justice proposal equal protection. tension with view of her own O’CONNOR’S hand, she for failing develop spe- On the one criticizes the Commission to “minority viewpoints” cific that it might implement definitions so her Ibid..; suggestion. post, (noting see that also at 629 the FCC has declined “any particular identify deficiency viewpoints to in the contained added). spectrum”) (emphasis hand, implies broadcast the other On she any effort would equal protection principles, such violate which she interprets prohibiting as “identifying the FCC from what constitutes a viewpoint,’ viewpoint,’ an viewpoint,’ ‘Black ‘Asian ‘Arab an and so on determining viewpoints Post, underrepresented.” which [and] are at 615. light, In a perceive this O’ConnoR should as than virtue rather Justice diversity by vice decision to the FCC’s enhance broadcast of mi- means ownership policies nority defining specific rather than “Black” or viewpoint. “Asian” experimented maintains that the should FCC have O’Connor Justice measures,” with financial and post, “[r]ace-neutral informational minority promote ownership. suggestion order to vague This is so that it case, (de- any In Congress, is difficult evaluate. supra, both see at 574 minority scribing financing accompanied fund that lottery sys- would have tem), directly steps Commission considered to address financial minority ownership. Minority and informational barriers After the Task Ownership requirement Force identified the demon- licensees availability strate of sufficient operate funds to construct and a station Co., year, see Broadcasting one Ultravision F. 2d C. C. (1965), obstacle ownership, Report as an Task see Force subsequently requirement was three reduced to months. See Finan- *37 judg- of nature the Commission’s the considered Moreover, minority ownership policies particular selecting inment the today the the fact that Commission is illustrated at issue (television (1979) appli- Standards, Qualifications 72 F. C. 2d 784 C. cial 407, cants); Applicants, 69 F. C. 2d Qualifications Aural C. Financial for (1978) (radio addition, applicants). In noted that the Commission 407-408 minority eligible for the Small Business assistance from broadcasters are Report Task agencies. federal See Force Administration and other potential disseminated about 17-22. The also information Commission See, g., EEO-Minority FCC minority buyers properties. e. of broadcast Division, Ownership A Minority of Broadcast Facilities: Enterprise (Dec. 1979). initiatives, Despite the Com- Report 8-9 these race-neutral “ minority ownership’ of in the in 1982 that the ‘dearth mission concluded industry” remained a of “serious concern.” matter telecommunications Regarding Minority Oionership Advancement Policy Commission of 849, 852 Broadcasting, 92 F. C. C. 2d promot- employ to of has race-neutral means The Commission continued expand example, to the num- diversity. For it has worked ing broadcast see, limits, g., e. technological within workable ber of broadcast outlets Availability FM No. To 80-90 Increase Implementation BC Docket of of (1985), develop strict F. C. 2d 1332 Assignments, 100 C. Broadcast rules, encourage supra, n. issue-oriented cross-ownership see present program- obligation by recognizing licensee’s programming See, g., e. license. responsive facing community the of ming to issues (1986); Deregulation 104 F. C. 2d Deregulation, Television C. of Radio, 2d, con- has nonetheless 84 F. 982-983. The Commission C. C. poli- minority ownership for its cannot substitute cluded these efforts See, id., at g., cies. e. 977. pro closely to increase Congress the Commission’s efforts followed 572-579, development diversity, supra, including the of see gramming (1974); See, g., Rep. pp. 6-7 e. No. policy. S. the ascertainment al. Hearings Act: on S. 16 et befoi'e Sub Renewal Broadcast License Commerce, 93d Committee on on Senate committee Communications (tes (1974) Scott); icl., Sess., (testimony at 65 p. Cong., pt. 2d Sen. Brown). testimony from chief timony Congress heard Rep. .of “seri were Bureau that the ascertainment rules Mass Media Commission’s unpro highly and created ously they “became ritualistic flawed” because Broadcast over trivia.” unseemly squabbling administrative ductive H. R. 6134 Ownership: Hearings on H. R. 6122 and Regulation and Station Protection, Telecommunications, Consumer on before Subcommittee Commerce, 98th Energy Finance the House Committee minority preferences. other For exam- types has rejected refused has studied but to implement the Commission ple, aside certain setting more alternative of fre- expansive Nighttime Opera- broadcasters. quencies Channels, on Clear Red tions 3 F. C. C. Criteria, Deletion AM 102 F. C. C. Acceptance
(1988); *38 Channel Broadcasting, Clear (1985); 555-558 2d denied, reconsideration 83 F. C. F. C. 2d C. 2d C. FCC, aff’d sub nom. Loyola University (1980), 218-219 (1982). D. C. 670 F. 2d In App. 216 U. S. addi- it tion, adopted in a released the after the ruling day compar- credit and the distress sale hearing preference, ative to a adopt 45-day FCC declined to advance plan require pub- sold, before a station be which had lic notice could been advo- it cated on the that would ensure minorities a ground chance bid on stations that otherwise be sold to in- might industry ever market. siders without on the See 43 Fed. coming (1978).44 afterward, Soon Reg. Commission re- (1984). Sess., 165 testified Cong., minority- 2d Other witnesses that the ownership policies adopted “only specific by were findings after the Com- policies, equal opportunity mission that ascertainment far rules fell increasing minority participation programming ownership.” short Minority Ownership Hearing of Broadcast Stations: before the Subcommit- Commerce, Science, tee on Communications of the Senate Committee (1989) Sess., Transportation, p. Cong., (testimony 101st 1st of J. Association). Smith, Jr., Clay In enacting lottery National Bar stat- ute, explained Congress comparative hearing process” the “current had produce adequate diversity and programming policy failed to that “[t]he diversity encouraging by of information sources is best served ... assur- minority ing groups any and ethnic have been acquire unable to significant degree ownership provided of media an opportu- are increased (1982). nity Rep. p. Only so.” H. R. Conf. to do No. in this way public diversity “the American to a wider [gain] would access of in- Id,., at formation sources.” 45. proposal opposition was
44The withdrawn after vociferous from broad casters, requirement who maintained that a notice “would create a burden by causing significant delay presently a in the time it on stations takes to might require and that it sell a station” the disclosure confidential finan Reg. 43 Fed. cial information. minority ownership proposals jected advanced other Policy Department of and the of Telecommunications Office brokerage, sought to revise the FCC’s time Commerce that policies.45 multiple ownership, and other policies, ownership minority furthermore, are aimed The entering directly face minorities the barriers industry. broadcasting identi- The task force Commission’s minority key hampering growth of owner- as fied factors adequate financing, paucity ship of information lack availability, inexperience. regarding and broadcast license Report Advisory 8-29; Committee on Task Force Financing Minority Opportunities for in Tele- Alternative Report, Advancing Strategies Mi- Final communications, 1982). (May nority Opportunities Ownership preference assigned in the status Commission licensing proceeding, reasoning comparative an en- that such help compensate might for a dearth of broad- hancement casting experience. acquisitions, however, are Most license *39 only necessity existing by purchases stations, of a because available, those are new stations are and limited number of profitable portions on less less markets or often desirable 253; Petition Presidents, supra the n. Papers 45See Public of for by Telecom Inquiry or National Policy Issuance Notice Statement of of Administration, 1591, 1593 munications and 69 F. C. 2d C. Information exemption for petition proposals such as a blanket The advanced policies, as a rule then-existing such minorities from Commission certain stations restricting by stations who had held their assignments of owners (1978); ownership § multiple 47 years, less than see CFR 1.597 for three broadcast holding an owner more than one regulations precluded from that id., signal, see facility given overlapped with another’s a service 73.636; §§73.35, required a 73.240, “Top policy, and which 50” and was allowed showing public interest the same owner compelling of before UHF) (either station acquire a VHF or fourth VHF or television to third propos rejected these largest markets. The the 50 television Commission for on a ease- ground might qualify while waivers als on the minorities basis, inappropriate.” by-case exception for “would be minorities blanket 2d, F. C. C. at 1597. Congress spectrum, as such the UHF band.46 and of minority found for distress sale a need therefore FCC helps problem inadequate policy, to overcome which problem by lowering price capital and the the sale access to by existing providing licensees in with an of information lack buyers. minority The seek out Commission’s centive minority very ownership policies thus addressed the choice being responsible minority for isolated un- it had as factors industry. derrepresentation in the broadcast minority ownership policies “appropriately are limited subject re- duration, to reassessment and in extent any by prior Congress extension re- or evaluation (opinion Burger, S., at Fullilove, 448 U. enactment.” J.) omitted). (footnote Although it has underscored C. support minority ownership policies, emphatically its for the support through Congress has manifested that series of thereby ensuring appropriations duration, Acts of finite fu- minority ownership ture the need reevaluations program the as number of broadcasters increases. Congress hearings addition, hold In has continued to on the minority ownership.47 subject has The FCC noted with mid-1973, percent of the commercial 46As of licenses for 66.6 television percent existed 91.4 of the VHF stations —that in mid-1989 stations —and percent already Sixty-eight awarded. and one-half AM had been of the FM the FCC as of radio station licenses authorized mid-1989 had by mid-1973, already including percent been issued AM stations. as Amicus Cities/ABC, Inc., Curiae No. Capital See Brief for supra; Honig, Fluctuating n. also n. and Its p. 19. See The FCC Facilities, Minority Ownership Commitment of Broadcast How. L. J. (1984) 859, 875, (reporting n. statistics Afro-Americans properties” with the least AM “tended to own desirable the lowest —those *40 frequencies, with the power highest and hence those smallest areas of and coverage). 47See, Minority g., e. Ownership Hearing of Broadcast Stations: before on of the the Subcommittee Communications Senate Committee on Com (1989). Cong., 1st Sess. merce, Science, 101st Transportation, and See supra, at 578-579. also
595 lottery minority preferences in the respect contained to the (1982 309(i)(3)(A) ed.), Congress § S. C. statute, 47 U. annually “report the effect to the Commission instructed serving pur system it is preference whether and Congress able to further tailor poses will be intended. may information, eliminate the program and based on appropriate.” preferences Amendment Commis when Among Com Certain Allow Rules to Selection sion’s from Using In Applications or Lotteries peting Random Selection Hearings, Comparative 952, 974 93 F. C. C. 2d stead of (1983). provision for administrative Furthermore, there is guar decisions, which judicial of all Commission review applied ownership policies minority are both that antees correctly frequent will be that there in individual cases/48 Klutznick, (1980), in Fulliloue the FCC 448 U. S. 48 As scrutiny identify and elimi subject to “administrative are preferences Id., who are not bona fide. applicants participation” those nate from Relating Broadcast Rules Policies and Formulation 487-488. Participants Competing Applicants Other Applicants, Reneival Reneival Abuses to Prevention Reneival Process and Comparative Process, Board, super The FCC’s Review Red 5179 3 F. C. C. integration to detect sham hearing process, seeks comparative vising the g., e. Silver See, applicants, including minorities. by all credits claimed Communications, Metroplex Com 469, (1990); Springs 5 F. C. Red C. (1989); munications, Inc., 8149, 8149-8150, 8159-8160 4 F. Red C. C. (Rev. Associates, 5164, Media Bd. Northampton Red 5170-5171 3 F. C. C. (Rev. Broadcasting, 3 F. C. C. Red 3948, 3955 Shoshone Washoe 1988); (Rev. modified, 1988), Mulkey, 3 F. C. C. Red 590, Bd. 1988); 590-593 Bd. Limited, Television Neivton (1989); 5520, 5520-5521 Red 4 F. C. C. Part Magdelene Gunden (Rev. 1988); 553, Bd. n. Red F. C. C. Broadcasting 1988); Tulsa (Rev. 488, nership, Bd. Red 488-489 3 F. C. C. Televi (Rev. 1987); 6124, Group, Bd. Red 6129-6130 2 F. C. Pacific C. (Rev. denied, sion, Ltd., 1987), 1101, Bd. review Red 1102-1104 2 F. C. C. Communications, Inc., Payne (1988); Red 1 F. C. C. Red 3 F. C. C. Co., Broadcasting (Rev. N. E. O. 1986); 103 F. C. C. Bd. 1054-1057 Owners, Inc., Hispanic (Rev. 1986); 2d 99 F. C. C. Bd. 2d (Rev. Corp., 99 F. C. C. 2d (Rev. 1985); KIST 186-190 Bd. (1985), 288, 292-293, modified, and n. 1984), 2d 102 F. C. C. aff’d as Bd. *41 596 policies.
opportunities merits of Con- to revisit the those minority adopted policy gress have and the Commission a ownership itself, an but as a means of not as end rather goal achieving greater programming diversity. car- a Such will for further limit, natural for there no need its own be ries diversity minority preferences sufficient has been once pro- plan, like the Harvard admissions FCC’s achieved. gram the own termi- Bakke, discussed contains seed of its Transportation Agency, Johnson v. Santa nation. Cf. (1987) “express County, (agency’s 640 U. S. Clara work ensures to ‘attain’ a balanced force” that commitment duration). plan be of will limited ownership pol- Finally, minority we do that the not believe impose impermissible at issue burdens on nonminori- icies nonminority Although challengers in these cases ties.49 already- they not suffered of an concede have the loss they they license, claim have been broadcast awarded ability handicapped in their to obtain first instance. one just part “[a]s of this Na- But as we determined have eradicating discrimination, dedication to racial innocent tion’s may upon persons be to bear burden called some of the remedy,” Wygant, (opinion S., Powell, at 476 U. J.), similarly congressionally mandated, be- we that a find Telecasters, FCC, sub nom. App. United American Inc. 255 U. S. aff’d 397, 801 F. 2d D. C. by Shurberg’s on respondent As evidenced own attack unsuccessful 2d, Astroline, App. C., at U. S. D. F. credentials see 278 challenges to the bona of distress the FCC also fide nature sale entertains Statement, Policy 2d, 92 F. at 855. participants. C. C. broadcasters, by Minority those who both obtain their licenses means not, stigma and those not ownership policies who do are programs. not know as inferior do tized Commission’s Audiences speculate ob race and reason to how he or she broadcaster’s have no about license; pro judged each his or her tained broadcaster the merits of Furthermore, minority appli satisfy licensees gramming. otherwise must Fullilove, supra, qualifications requirements. Cf. cable FCC (Marshall, J., concurring judgment). related to substantially that is program race-conscious nign, *42 interest important governmental the achievement of an it does so as long protection principles consistent with equal Fullilove, undue burdens on nonminorities. Cf. not impose J.) (“It a con- C. is not Burger, S., 448 U. at 484 (opinion that it program may disappoint stitutional this defect lim- firms. nonminority effectuating When expectations prior to cure the effects of remedy tailored ited properly innocent ‘a of the burden’ discrimination, sharing such id., (citation 521 at omitted); is not parties impermissible”) in judgment). J., concurring (Marshall, licenses, the burden broadcasting In the context is to grant The FCC’s responsibility is slight. nonminorities 47 interest, convenience, necessity,” or licenses the “public (1982 fre- ed.), and number of §§ the limited 307, U. S. C. 309 “[n]o means that spectrum electromagnetic on the quencies Lion, Bed to a license.” right has a First Amendment one expectation have no settled S., at 389. Applicants U. be without consideration granted will that their applications ownership. such as minority interest factors public or transfer a comparative hearing Award of a preference “no legitimate in a sale thus contravenes a station distress John- of competing applicants. rooted firmly expectation^]” son, at supra, 638. minority insists that because Shurberg
Respondent firms nonminority to exclude operates distress sale policy sta- in the of certain from consideration transfer completely hearing burden than the tions, comparative it is a greater factor minorities, which is a “plus” simply preference appli- with other characteristics considered together Johnson, Bakke, supra, S., at 317-318; 438 U. cants.50 Cf. that, practice, minority enhancement 50Petitioner Metro contends rather comparison applicants but part is not of a credit multifactor comparative minority applicant in a per se preference for a amounts to a ownership experience has shown that licensing proceeding. But Jones- See, e. Radio applicant prevail. g., will guarantee that an does not policy disagree imposes sale an We the distress 638. By policy terms, its burden on nonminorities. undue only may discretion with re- be invoked the Commission’s desig- spect licenses to a small fraction of broadcast —those hearings for revocation or to examine basic renewal nated only qualification issues—and when licensee chooses to price go through at a distress rather than to with the out sell boro, Inc., (1985); Lampreckt, 100 F. C. C. 2d 945-946 99 F. C. C. 2d (Rev. denied, (1988), 1984), ap- Bd. 3 F. C. C. Red 2527 review Industries, FCC, (CADC); Lamprecht Horne 88-1395 peal pending, No. Co., Inc., Broadcasting (1984); Vacationland F. C. C. 2d (Rev. 1984), modified, Reg. Bd. 58 Radio 2d C. 2d F. C. Co., (P&F) (1985); Bejar Las Television Misiones de 93 F. C. C. 2d *43 (Rev. Wa- 1983), denied, 16, 1984); 191, (May 195 Bd. review FCC 84-97 1981). (Rev. Broadcasting Corp., 88 F. 1204, ters 2d C. C. Bd. Metro, many minority pre applicant
In cases cited even when the vailed, dispositive was not the the enhancement for status factor See, g., e. Silver in the Commission’s decision to award the license. Communications, Inc., (ALJ 469, 1990); Rich Springs 5 F. C. Red 479 C. (ALJ 1989); Broadcasting Group, 4 F. 7989, Pueblo ardson Red 7999 C. C. (ALJ Service, Broadcasting Pough 7802, 1989); 4 F. Radio Red 7812 C. C. Broadcasting Partnership, Limited 6543, 6551, keepsie 4 F. C. C. Red 1989); Barden, (ALJ (ALJ 1989); 7043, Perry 4 F. 7045 n. 4 C. C. Red (ALJ Television, Inc., 4618, 1989); Corydon 4 F. 4603, 4620 C. C. Red Ltd., (ALJ remanded, Broadcasting, 4 F. 1537, 1989), 1539 C. C. Red (Rev. 6, Bridge Bd.); Breaux Broadcasters Limited 1989 of Dec. Order (ALJ 1989); Partnership, Key Broadcasting 4 F. 581, Corp., C. C. Red 585 (ALJ Inc., Broadcasting, 6587, 1988); 62 3 F. C. Red 6600 3 F. C. C. C. (ALJ (Rev. 4429, 1988), aff’d, 1768, 4450 Red 4 F. C. Red 1774 Bd. C. Communications, 1989), denied, (1990); Gali review 5 F. C. C. Red 830 (ALJ Inc., 1987); Bogner Corp., Newton 2 Red 2 F. C. C. 6994 (ALJ Garcia, 4166, 4168, 1987); 2 F. F. C. C. Red 4805 C. C. Red (ALJ (Rev. 1987), aff’d, Bd.), denied, n. 1 3 F. Red 1065 3 C. C. review (1988); Magdalene Partnership, Gunden F. Red 4767 2 F. Red C. C. C. C. (ALJ (Rev. 1987), aff’d, 1987), 1223, 1238 2 F. Red 5513 Bd. re C. C. (Rev. denied, Bd.), denied, 3 F. C. Red 488 review 3 consideration C. Group, 2 (1988); Broadcasting Tulsa F. C. Red 7186 F. C. Red C. C. (Rev. (ALJ), aff’d, 1987), denied, 2 F. C. Bd. review C. Red (ALJ (1988); Tomko, 206, 209, F. Red 4541 2 F. Red n. 3 C. C. C. C. 1987). hearing. policy quota The distress sale a is not or fixed quantity nonminority Indeed, set-aside. firm exercises control over whether a distress sale will ever occur at all, be- policy operates only qualifications cause the where the of an existing broadcasting desig- licensee continue have been hearing applications nated for and no other for the station question have been filed with the Commission at the time of designation. Policy, Distress Sale Clarification of (P&F) Reg. nonminority Radio 2d Thus, a can prevent procedures being the distress sale from ever invoked by filing competing application timely in a manner.51 practice,
In represented tiny distress sales have frac- percent tion—less than 0.4 all broadcast sales since 1979. —of See Brief for Federal Communications Commission in p. only No. 44. There have been 38 distress sales policy since the was commenced 1978. See A. Barrett, Minority Employment Federal CommunicationsCommission, Ownership in the Communications Market: What’s (Address p. Bay 90’s?, Ahead to the Area Black 51Faith Center also held broadcast stations, licenses for three California designated and in the FCC hearing for a Faith Center’s renewal application for its San Bernadino allegations station because of of fraud in connection with over-the-air solicitation for funds and for failure cooper investigation. ate with an FCC Although respondent Shurberg did not competing application file a prior to the Commission’s decision to designate *44 hearing for Faith application station, Center’s renewal for its Hartford timely competing applications against filed two of Faith Center’s California prevented stations their transfer policy. under the distress sale See Faith Center, Center, Inc., (1982), Inc., 89 F. C. C. 2d 1054 and Faith 90 F. C. C. 2d 519 course, competitor may Of a be unable to might foresee the FCC designate a license for a hearing, revocation or renewal and might so ne- glect competing application a timely file in But it precisely fashion. is in such circumstances that the policy distress sale would least dis- rupt any competitor’s expectations. settled competitor’s From the windfall; perspective, only denied an opportunity it has been at a it ex- pected broadcasting indefinitely the current licensee to continue and did anticipate not that the license would become available.
600 1990). Apr. Conference, Francisco, 21, San This
Media only percent average, of about 0.2 renewal that, means year applications each in distress filed have resulted sales policy 54 was commenced 1978. See FCC Ann. since (1988).52 Nonminority compete Rep. firms are free for 33 opportunities license available remainder the vast properties. 11,000 over broadcast market that contains buy apply existing station, an for a can new Nonminorities competing application against appli- a renewal file a station, existing participation station, seek financial an or cation of qualify enterprises for treatment. distress sale nonminority Report 9-10. The burden on firms Task Force program “relatively light” that created as is at least as percent minorities Fullilove, which set aside for at issue in public projects. granted for local works of federal funds J.); Burger, (opinion id., 485, C. see also at S., U. n. 72.
Ill minority ownership policiesbear the im- The Commission’s congressional support primatur longstanding and direction substantially related to the achievement of the and are diversity. objective important governmental broadcast judgment judgment affirmed, in No. 89-453 licensees, relatively phenom rare Even troubled distress sales are for opt ena; possibility with revocation presented of license most stations special policy. Many granted not to utilize the distress sale are seek con enabling them license another from the to transfer relief FCC Commission, see Coalition with part negotiated as settlement cern FCC, Hispanic Broadcasting App. the Preservation of U. S. (1990); bankrupt 200, 203-204, F. licensees 2d 1352-1353 D. C. under the “Second the benefit innocent creditors can effect a sale for Thursday Corp., 22 F. C. C. 2d doctrine, Thursday” Second see (1970), granted, 2d F. C. C. 113-115 reconsideration 520-521 (WLTH), Broadcasting Corp. Indiana 65 F. C. C. 2d (1970); Northwestern practices hearing. (1977); others elect to defend their and still *45 pro- reversed, and the cases are remanded for No. 89-700 is ceedings opinion. this consistent with
It is so ordered. Stevens, concurring. Justice
Today squarely rejects proposition that a the Court governmental that rests on decision a racial classification except past permissible remedy wrong. as a never I Ante, benefit, at 564-565. endorse this focus the future justification, rather than the remedial of such decisions.1 convinced, course, I ethnic charac remain that racial or only provide disparate relevant basis for treatment teristics extremely “espe in rare situations and that it is therefore cially any important that the reasons for such classificationbe clearly unquestionably legitimate.” Fullilove identified and (1980)(dissenting opin 448, Klutznick, v. ion). 448 U. S. 534-535 explains opinion The Court’s how both elements Specifically, for the classi standard are satisfied. the reason diversity recognized fication—the interest broadcast —is clearly imply any judgment not concern identified and does ing the owners of or the merits of abilities of different races programming. favored different kinds of Neither the nor stigmatized any way.2 In addition, class is disfavored the Court demonstrates that these cases fall within the ex tremely governmental category for which narrow decisions may heritage provide racial or ethnic a rational basis for dif public ferential in broadcast diver treatment.3 interest (1989) Co., v. A. 1See Richmond J. Croson 488 U. S. 511-513 (Stevens, Wygant J., part concurring concurring judgment); Education, (1986) (Stevens, J., Jackson Board U. S. 313-315 dissenting). 516-517; S., Croson, Fullilove, S., 2 Cf. 488 U. 448 U. n. 17. Center, Inc., Living 3 See Cleburne v. Cleburne 473 U. S.
(1985) (in (Stevens, J., concurring) examining the “rational basis” for a ‘rational,’ classification, course, requirement the “term includes a that an impartial logically lawmaker could believe that the classification would public purpose that legitimate serve a transcends the harm to the members *46 in diver integrated police interest an the sity force4 —like 5 or faculty diversity school a composition public in the sity in view my school6—is body of professional in the student legitimate. unquestionably and the judgment I both the
Therefore, join opinion Court. O’Connor, Justice, with Chief Jus- whom
Justice
Kennedy join, dissenting.
and Justice
alia,
tice Sc
of equal
of the Constitution’s guarantee
pro-
heart
At the
that
the Government must
the
command
simple
lies
tection
individuals,
‘as
of a
simply components
“as
not
citizens
treat
”
class.’ Arizona
Govern-
sexual or national
racial, religious,
Comm,
and
Tax
Com-
Annuity
ing
Deferred
Deferred
(1983).
Norris,
Plans v.
1073, 1083
S.
So-
U.
pensation
debate
may
peoples’
thoughts
how
cial scientists
their
the Constitution
reflect
but
background,
pro-
behavior
benefits
the Government
not allocate
and bur-
may
that
vides
that
assumption
individuals based on the
race or
dens among
think. To uphold
determines how
act or
ethnicity
they
from these funda-
the Court
programs,
departs
challenged
and from
traditional
requirement
mental
our
principles
if
are
only
necessary
classifications
permissible
racial
interest.
tailored to achieve a
This de-
compelling
narrowly
racial classifications
marks
renewed toleration of
parture
of our
that the Constitu-
and a
recent affirmation
repudiation
to all citi-
equally
tion’s
extend
equal protection guarantees
class”);
Superior
Court
Michael M.
Sonoma
disadvantaged
v.
(discuss-
(1981)
464, 497,
J.,
County,
(Stevens,
dissenting)
n. 4
450 U. S.
cases).
scrutiny appropriate
protection
ing
equal
the level of
in
Wygant,
S.,
(Stevens,
J.,
dissenting).
476 U.
at 314
4 See
id.,
opinion concurring
at 315-316. See also Justice O’ConnoR’s
5 See
Wygant, recognizing
concurring
in
part
judgment
in
“goal
providing
‘role models’ discussed
the courts below should not be
very
diversity among
goal
promoting
with the
different
racial
confused
Id.,
faculty.”
n.
Regents
opinion
judgment
announcing
6See Justice Powell’s
Bakke,
University
U. S.
of California
application
equal protection
zens. The Court’s
of a lessened
congressional
support
actions finds no
standard
our
respectfully
I
cases or
the Constitution.
dissent.
I
recognized
requires
Term,
As we
last
the Constitution
scrutiny
apply a strict
the Court
standard of
to evaluate ra-
*47
challenged
such
cial classifications
as those contained
comparative licensing policies.
and
FCC distress sale
(1989);
Co.,
Richmond
A. Croson
v. J.
Sharpe,
488 U. S.
see also
(1954).
scrutiny”
Bolling v.
In both the the Federal Communica- (FCC) provides to some tions Commission benefits members society of our and denies to others based on race or benefits ethnicity. Except in circumstances, the narrowest of par- as a Constitution bars such racial classifications denial to any ethnicity, equal pro- individuals, of of “the ticular race or § Croson, cf. Const., 1; tection of the laws.” U. Arndt. S. supra, dangers such classifications are at 493-494. reasoning concep- They and the clear. endorse race-based contributing blocs, thus tion a divided into racial of Nation hostility Croson, an racial and conflict. See escalation of supra, States, 323 U. S. 493-494; Korematsu v. United (1944) dissenting) (upholding (Murphy, treatment J., 214, 240 destroy “to race is of individual based on inference from open encourage dignity individual and to and the door discriminatory against groups other in the actions to passions tomorrow”). may embody policies Such stereo- product types race, as the of their eval- that treat individuals very thoughts uating worth as citi- their and efforts—their according to criterion barred to Government zens— history Mississippi Accord, the Constitution. Univer- Hogan, sity v. 458 U. 725-726 Women S. for providing classifications, Racial whether benefits to or bur- may dening particular groups, stigmatize or ethnic racial groups singled may those out for different treatment cre- widely with the ate considerable tension Nation’s shared evaluating upon their commitment to individuals individual Regents University Bakke, merit. Cf. of California (1978) J.). (opinion 438 U. S. Brennan, provide so “Because racial characteristics seldom relevant disparate treatment, and basis for because classifications potentially body based on race are so harmful to the entire politic, especially important any it is that the reasons such clearly unquestionably legiti- be identified classifications *48 Klutznick, 448, v. mate.” Fullilove S. 533-535 448 U. (1980) (footnotes omitted). dissenting) J., (Stevens, guarantee protection equal of binds the Constitution’s no States, Federal as it does the lower level Government scrutiny applies the Federal use of race Government’s Bolling Sharpe, companion supra, In the v. classifications. (1954), Education, case to Board S. Brown v. 347 U. 483 equal protection principles the Court held that embedded prohibited the Fifth Amendment’s Due the Process Clause racially segregated maintaining Federal from Government “[I]t be schools in District of Columbia: would unthink- the impose duty able lesser that the same Constitution would Id., with on the Federal Government.” at 500. Consistent repeatedly that “the reach view, this the Court has indicated guarantee equal protection Amendment is of the Fifth v. with that United States coextensive Fourteenth.” 605 Paradise, (1987) 166, n. 16 149, 480 U. S. (plurality opinion) id., classification); remedial race at 196 (considering (O’Con- Valeo, e. g., Buckley J., also, see v. dissenting); nor, v. (1976); Weinberger Wiesenfeld, 636, U. S. 420 U. S. 638, n.
Nor does the role the FCC’s congressional prolonging level of with all in- policies justify lower As any scrutiny. stances of of federal judicial review Court legislation, does not lightly set aside considered of a co- judgment Nonetheless, ordinate branch. due a coordinate respect yields branch neither less defense of vigilance equal pro- tection diminution of the any nor principles corresponding Weinberger Wiesenfeld, standard of review. In v. for exam- ple, Court a widower’s upheld equal protection challenge Act, to a provision Security assertedly the Social found the to be and noted benign congressional purpose illegitimate, Court’s to Fifth Amendment approach equal pro- “[t]his tection claims has been the same as to always precisely equal the Fourteenth protection claims under Amendment.” S., has U. n. 2. The Court not varied its standard of review when other entertaining equal protection challenges Mathews, e. Heckler v. g., See, measures. congressional Webster, (1984); U. S. 728 v. S. 313 U. Califano (1977) curiam); (per v. Goldfarb, 430 U. S. Califano (1977) (traditional 210-211 standard equal protection applies determinations) deference despite congressional benefit Valeo, Buckley J.); supra, (opinion 93; v. Brennan, Richardson, Frontiero v. (1973) U. S. (opin- J.). ion of Bolling And itself Sharpe, supra, Brennan, involved extensive congressional regulation segre- gated District of Columbia public schools.
Congress latitude, has considerable con- special presenting *49 cerns for judicial review, when it exercises its reme- “unique §5 dial . . . powers Amendment,” under of the Fourteenth Croson, see supra, J.), at 488 this (opinion but O’Connor, case does not those implicate powers. Section 5 empowers Congress respecting States, to act and of this case course only by programs federal the administration of fed- concerns Congress provides “power eral officials. Section to by appropriate legislation, provisions enforce, to of this “[n]o part provides which in article,” State shall . . . any person deny jurisdiction protec- equal to within its §1. Reflecting laws.” Arndt. Const., tion of the U. S. change the Fourteenth Amendment’s “dramatic in the bal- congressional power between and state ance over matters of J.), (opinion Croson, race,” S., at U. O’Connor, provides Congress particular, that section a to structural role oversight id., in the of the certain States’ actions. (§ Hogan, swpra, grants power 488-491, 504; at 732 5 to equal protection enforce Amendment “‘to . secure . . ” against quoting parte laws State or invasion,’ denial Vir- Ex ginia, (1880)); supra, Fullilove, 100 U. S. at 476- 478, 483-484. supports appli-
The Court asserts that Fullilove novel its scrutiny “benign” cation of intermediate race conscious adopted by Congress. Ante, measures at 564. Three rea- sons this First, defeat claim. Fullilove an exer- concerned Congress’ § powers cise of under 5 of the Fourteenth Amend- Congress Fullilove, ment. In the Court reviewed an Act of required percentage that had States to set aside of federal minority-owned construction funds for certain businesses remedy past discrimination the award of con- construction Although opinions tracts. the various Fullilove referred congressional authority, opinions to several sources of § apply make clear that it 5 that was led the Court dif- challenged program. g., ferent form review to the See, e. (opinion Burger, joined by at S., 448 U. J., C. White, J.) (“[I]n organ government, J., and Powell, no state or repose comprehensive federal, does there a more remedial power Congress, expressly charged than the Con- competence authority equal pro- stitution with to enforce guarantees”); (Powell, id., tection J., concur- *50 ring). any might Last Term, Croson resolved doubt that regarding point. remain In Croson, this we invalidated a local distinguished set-aside for contractors. We upheld Fullilove, in which we a similar set-aside enacted Congress, ground “Congress that in Fullilove was ex- ercising § powers its under 5 of the Fourteenth Amendment.” (opinion Court);
Croson, 488 S.,U. at 504 id., at 490 (opinion joined by of O’Connor, J., C. J., and Rehnquist, J.). Croson indicated that the decision Fullilove White, unique powers turned Congress on “the remedial under (opinion J.), §5,” id., at 488 of O’Connor, and that the lati- Congress identifying tude redressing afforded past § “specific discrimination 5’s rested on constitutional mandate to enforce the dictates of the Fourteenth Id., Amendment.” at 490. Justice Kennedy’s concurrence Croson likewise provides majority support, questioned with no for it any whether should, the Court as it Fullilove, had in afford particular pursuant latitude even to measures undertaken §5. id., See at 518. applies only congressional
Second, Fullilove at most remedy past measures that seek to identified discrimination. upheld challenged only Court measures in Fullilove Congress because par had identified discrimination that had ticularly industry carefully affected the construction and had corresponding constructed remedial measures. Fulli See love, (opinion Burger, S., U. at 456-467, 480-489 J.); (Powell, id., C. concurring). at J., 498-499 in Fullilove dicated that careful review was essential to ensure that Con gress solely illegitimate acted for remedial rather other, than purposes. (opinion J.); Burger, id., id., See at 486-487 C. (Powell, concurring). at Congress J., The FCC and clearly acting any are purpose, not remedial see infra, today expressly 611-612, and the Court extends its standard any to racial classifications that are not remedial in sense. ante, present at 564-565. This case does not “a consid Congress ered decision of the President,” Fullilove, and the present supra, 473; nor a remedial effort does it or exer- § powers. cise of
Finally,
applied
if
even Fullilove
outside
remedial exer-
*51
§5
Congress’
power,
support today’s
not
of
it would
cise
proffered by
adoption the
of
of
intermediate standard
review
rejected,
in
but
Fullilove. Under his
Marshall,
Justice
suggested standard, the Government’s use of racial classifi-
“
”
only
‘substantially
need
be
related to
cations
achievement’
governmental
important
Ante,
interests.
at 565. Al-
of
though
correctly
majority
that a
the Court
observes
did not
scrutiny,
apply
rejected
strict
six Members of the Court
scrutiny
stringent
in favor of some more
intermediate
form
applied
Three
of review.
scrutiny.
Members of
Court
strict
(Powell,
concurring)
See 448
S.,
U.
at 496
J.,
(challenged
“employs
statute
a racial classificationthat is con-
stitutionally prohibited
necessary
it is a
unless
means of
advancing compelling governmental interest”);
id., at 498
(“means
narrowly drawn”); id.,
selected must be
at 523
(Stewart,
joined by
dissenting).
J.,
J.,
Chief
Rehnquist,
Burger’s opinion,
joined
Justice
Justice White and Jus-
particular
adopt
Powell,
tice
declined to
standard of review
searching
indicated that
but
the Court must conduct “a most
id.,
examination,”
at
that courts
must ensure that
“any congressional program
employs
racial or ethnic cri-
accomplish
objective
remedying
present
teria to
of
past
narrowly
effects
discrimination is
tailored to the
goal.” Id.,
achievement of that
at 480. Justice
Stevens
“[rjacial
simply
perni-
indicated
are
classifications
too
permit any
cious to
but the most exact connection between
justification
(dissenting
Id.,
classification.”
opinion).
opinion concurring
Even Justice Marshall’s
in
judgment, joined by
and Justice
Brennan
Justice
today:
opin-
Blackmun, undermines the Court’s course
That
expressly
plu-
drew
ion
rality opinion
its lower standard of review from the
Regents
University
California
(1978),
Bakke,
regardless Federal like States, not may “deny any within its person jurisdiction the equal protection laws.” As we observed last only Term “[ajbsent Croson, into the searching judicial inquiry justifica- for such measures, tion race-based there is simply no way *52 what determining classifications are or ‘remedial’ and ‘benign’ what classifications are fact motivated by no- illegitimate of racial tions or racial inferiority simple politics.” id., S., J.); U. at 493 see (opinion also at O’Connor, (“[TJhe standard of under the review Protection Equal Clause is not on the race of those dependent burdened or ben- classification”). efited aby particular The Court’s reliance racial classifications,” on “benign ante, is particularly troubling. racial “‘Benign’ classification” is a contradiction terms. Governmental dis- tinctions among citizens based on race or ethnicity, even the rare circumstances our permitted by cases, exact costs with them carry substantial To the de- dangers. person nied an opportunity race, or based on right classification is hardly benign. The right equal protection of the laws Kraemer, Shelley is a see personal right, U. S. each individual an immunity from treat- (1948), securing ment on in a predicated simply membership racial particular or ethnic group. The Court’s on emphasis racial “benign classifications” confidence in its suggests to distin- ability from harmful guish good uses of racial criteria. governmental should teach History greater humility. Untethered to nar- “benign” rowly it no with notions, carries confined remedial only acceptance independent meaning, the cur- but reflects acceptable politically generation’s bur- that a conclusion rent imposed particular race, is on the basis of on citizens den, determining provides no The basis for Court reasonable. By ex- to be a racial fails “benevolent.” classification when “benign” distinguishing pressly from remedial race-conscious any possibility distinct measures, the Court leaves substantially impor- an be related to measure found to racial by “benign.” governmental objective also, definition, tant Depending preference ante, at 564-565. might expressly directed moment, those racial distinctions be any practice group. Nation or ethnic We are a racial or divergent teeming one alone, but with not of black white by together car- communities knitted various traditions Upon by basis, individuals. we are forth, all, ried above guarantee providing single governed Constitution, one equally equal protection, citizens. that extends to all one dispute appropriate regarding the of review This standard may lawyers’ quibble it is words, strike some as but over and when not. The standard review establishes whether employ allow the the Court and Constitution Government signals Gov- A lower standard that the racial classifications. readily. may racial distinctions more ernment resort to enough, departure disturbing cases is but Court’s from our disturbing renewed classi- more still is the toleration of racial fications that its standard review embodies. new *53 h—I h-H history most of dis- that the blatant forms Our reveals upon the ra- crimination have visited some members of been challenged programs. groups in cial and ethnic Many identified opportunity Nation’s have lacked to share in the participate enterprises. in its It is wealth and to undisputed commercial broadcasting minority participation in- that in the dustry markedly demographic representation falls below g., Congressional groups, Service, Research see, e. of those Ownership Minority and Broadcast Pro- Broadcast Station (June 1988) (minority gramming: a Nexus? Is There percent possess interest in 13.3 of stations and owners an stations), percent controlling in 3.5 and this interest part may and the traced to the discrimination shortfall be society. widely patterns our that have affected of exclusion aspire society to create a untouched that As a Nation we equality history exclusion, and to ensure that defines all daily experience opportunities as well as the citizens’ protection to them under law. afforded may despite harms that attend reasons,
For these classifications, of racial we have re the Government’s use possesses peatedly recognized a com Government remedying pelling race the effects of identified dis interest subject even racial classifications claimed crimination. We scrutiny, however, to ensure that the to be remedial to strict any employs measures to in fact race-conscious Government only employs when, interest and them further this remedial g., broadly See, e. than, the interest demands. and no more Wygant supra, Bd. Croson, 493-495, 498-502; Jackson (1986)(plurality opinion). Ed., The FCC or 476 U. S. Congress may yet after suitable examination conclude required narrowly are tailored race-conscious measures may remedy be identified the allocation discrimination clearly broadcasting are within licenses. Such measures power. the Government’s policies challenged equally clear that the these
Yet it is designed and are in cases were not as remedial measures narrowly remedy discrimi- no tailored to identified sense policies appropriately that its nation. The FCC concedes purpose, Arg. Tr. of embodied no remedial Oral possibility infected has disclaimed the that discrimination congressional action at the allocation of licenses. The most simply policy designed interest in endorsed a to further the achieving programming. appropriations if diverse Even the *54 challenged poli purpose of the transform the could measure purpose, accompa and the reveals no its text remedial cies, Congress upon nying legislative material acted confirms diversity the FCC to rationale that led formulate the same challenged policies. Rep. p. No. 100-182, See S. suggestion, The Court refers to the bare contained legislation passed addressing Report in 1982, different in a “underrepresentation inequities” “past mi have led to communications, media of as it has in the mass ad norities versely participation in other their sectors of the affected economy Rep. p. No. 97-765, as well.” H. R. Conf. (1982); nothing ante, 566. indicates This statement what appropriations purpose about the of the relevant meas ever broadcasting no in the ures, identifies discrimination indus sufficiently identify try, not discrimination if and would even § acting pursuant powers. Congress its 5 Fulli were Cf. J.) (sur Burger, (opinion love, S., at 448 U. C. contracting affecting veying identification discrimination (Powell, concurring). opportunities); id., J., at 502-506 policies only designed as measures Court evaluates programming diversity. agree Ante, at 566-568. I increase upheld the racial classifications cannot be as remedial measures.
Ill appropriate scrutiny, only standard, strict Under may support compelling interest the Government’s use of ra- protection equal Modern cial classifications. doctrine has only remedying recognized one such interest: effects increasing racial discrimination. The interest the diver- viewpoints clearly sity compelling not a of broadcast inter- simply amorphous, too insubstantial, est. It is too and too any legitimate employing unrelated to basis for racial classi- Rather, fications. The Court does not claim otherwise. it employs that this in- its novel standard and claims asserted only “important.” be, and This conclusion is, terest need compounds reducing twice the Court’s initial error its level *55 casually scrutiny it First, too a racial classification. of of might support justifications racial classifi- extends past beyond remedying We discrimination. that of cations, recognized are so harmful that racial classifications have settings, strictly they for remedial “[u]nless reserved are inferiority promote may they notions of racial in fact hostility.” Croson, politics S., racial U. of to a lead Burger “The his- in Fullilove: warned As Chief Justice 493. using practices or governmental racial tory of tolerance imposing purpose the effect of or with for the ethnic criteria the deleterious us to must alert discrimination an invidious benign when or ethnic classifications racial even effects of justifications.” S., stray 448 U. they narrow remedial from departure en- this Second, initiated it has at 486-487. certainly insuffi- dorsing interest, one insubstantial an justify dis- ciently weighty Government’s tolerance ethnicity. among This on race and citizens based tinctions guard command to trivializes the constitutional endorsement potentially far- against has a loosed such discrimination disturbingly reaching principle with our traditional at odds protection equal doctrine. justifying capable measures race-conscious
An interest sup- sufficiently specific it verifiable, such that must be carefully only uses of racial classi- ports defined limited and remedy- Croson, interest we held that an In fications. compelling. ing be considered discrimination cannot societal (because pre- city Richmond had S., at 505 488 U. See discrimination, it had “failed of identified no evidence sented public apportioning compelling a interest to demonstrate race”). contracting opportunities We deter- basis of on the past “generalized discrimination assertion” mined that support stopping point” logical uncon- and would “has no (internal id., at 498 See uses race classifications. strained omitted). rejected Wygant, as- quotation we In marks pub- [a minority “providing models for role interest serted attempt system’s] to allevi- students, as an lic school ate the discrimination,” S., effects societal 476 U. at 274 (plurality opinion), “[s]ocietal because discrimination, with amorphous imposing racially more, out is too a basis for remedy” age classified and would allow “remedies that are past, ability in their less reach into the and timeless in their Id,., to affect the future.” at 276. Both cases condemned they those interests because would allow distribution of goods essentially according demographic representa to the particular groups. tion of racial and Croson, ethnic *56 supra, Wygant, (plu 498, 505-506, 507; S., 476 U. at 276 rality opinion).
The asserted interest these cases suffers from the same certainly amorphous: defects. The interest is The FCC and majority understandably suggest of this Court do not particular how viewpoint one would define or measure a might be with race, associated or even how one would assess diversity viewpoints. vague of broadcast Like the asser- insufficiently tion of societal discrimination, a claim of diverse broadcasting viewpoints might justify equally be used to un- preferences, nothing constrained racial linked to other than proportional representation of various races. And the inter- support est would indefinite use of racial classifications, em- ployed appropriate first to obtain the mixture of racial views broadcasting spectrum then to ensure that the continues to reflect that mixture. We cannot deem to be constitution- ally adequate support an interest that would measures that “outright amount to the core constitutional violation of racial balancing.” supra, Croson, at 507. justify against asserted interest would discrimination any group insufficiently
members of found to contribute anto broadcasting spectrum, including groups diverse those cur- rently Wygant, rejected insufficiently In favored. we as weighty achieving public interest role models in part readily schools, in because that rationale could as be hiring used belonged particular to limit the of teachers who to minority groups. Wygant, supra, (plurality at 275-276 similarly justify opinion). could The FCC’s claimed interest participation members’ in broadcast- limitations upon ing. depend It be unwise to would Court’s restric- “benign” holding its measures to this re- tion of forestall any purpose sult. Divorced from remedial and otherwise shifting “benign” only means undefined, what fashions changing politics acceptable. any Members of deem racial or group, preferred poli- under the whether now FCC’s ethnic may politically not, out of fashion and cies or find themselves disadvantageous “benign” subject to but discrimination. may majority’s holding, the FCC also advance Under diversity by identifying viewpoint interest its asserted viewpoint,” viewpoint,” an “Asian what constitutes a “black determining viewpoint,” view- on; “Arab and so which an using underrepresented; points then that determina- are particular deny programming or to licenses tion to mandate likely ethnicity virtue of race or less to those deemed their present Indeed, the FCC if taken has, favored views. essentially pursued course, word, this albeit without at its choosing express particular making its reasons for favor broadcasting spectrum concluding groups in- that the or *57 Policy Minority sufficiently See Statement diverse. of Ownership Broadcasting Facilities, F. 2d 979 C. C. of (1978 Statement). (1978) Policy equal protection pur- accept adequate as for
We should not capable yet supporting poses race, an unrelated to interest proscribed distinguish from dis- difficult to measures so may support race classi- The remedial interest crimination. necessarily past interest related to because that fications yet diversity in view- the interest discrimination; racial important, legitimate, provides points less reason much no generalizations apart employ im- from classifications race to thoughts equating And permissibly with behavior. race preferences distinguish prove impossible naked for will it preferences particular for members races from members they possess valued particular certain races because purpose, views: No matter its what the Government will be persons claim certain able to that it has favored for their abil- ity, stemming to contribute race, from distinctive views or perspectives. justification using
Even
other than
for
race
considered as
viewpoint diversity
interest
classifications, the asserted
being weighty enough.
recog
falls short of
The Court has
obtaining
broadcasting
nized an
interest
diverse
view
legitimate
points
acting pursuant
as a
for
basis
the FCC,
“public
statutory
adopt
its
interest”
mandate, to
limited
competing
measures to increase the number of
licensees and
encourage
present
licensees to
varied views on issues of
public
g.,
concern.
e.
See,
FCC v. National Citizens Com
Broadcasting,
(1978);
mittee
We have also concluded that these measures do not run afoul prohibition of the First Amendment’s usual of Government regulation marketplace part ideas, because First support Amendment concerns limited but inevitable Govern regulation peculiarly ment broadcasting of constrained spectrum. g., supra, See, Lion, e. Red at 389-390. But adopted conclusion that measures to further the interest diversity broadcasting viewpoints beyond are neither statutory authority contrary FCC’s nor to the First Amend hardly important equal ment establishes the interest as protection purposes. diversity
The FCC’s extension of the asserted interest in presents, very of views in these cases at the least, an unset- tled First Amendment issue. The FCC has concluded that broadcasting public the American receives the mix incorrect adopted challenged policies *58 of ideas and claims to have supplement programming particular to content with a set of Although approved views. we have limited measures de- the Court and views generally, to increase information signed to broadcasting amplify a measure designed never upheld has views of class a particular set of views or distinct has the First Indeed, suggested that the Court speakers. such allocating licenses to further Amendment prohibits Broadcasting States, Co. v. United See National ends. supra, (“But not the Com- did authorize at 226 Congress the basis applicants upon to choose among [license] mission any or social or other views, upon of their economic political, if the did, If or Commission these basis. it capricious some among upon a choice proposed applicants Regulations would issue before us be basis, Amendment] the [First such different”). to if an interest is determined be Even wholly impor- does not become context, suddenly in one it legitimate based race. to distinctions on tant enough justify i—H C in addi- requires, doctrine equal traditional protection Our interest, that Government’s compelling to a state tion tai- narrowly to accomplish, means be necessary chosen Wygant, interest. further, the asserted lored Sidoti, 466 U. Palmore S. S., at 274 (plurality opinion); U. scrutiny de- This element strict 429, 432-433 com- means ‘fit’ [the] chosen “ensur[e] signed there is or no possibility so little goal closely pelling racial motive classification was illegitimate for the Croson, S., (opinion U. or prejudice stereotype.” J.). do means, they as resting chosen O’Connor, end, asserted indirectly and so furthering stereotyping The Court narrowly tailored. not be deemed plausibly could “substantially re- finds the classifications be instead racial ante, interest, achieving lated” to the Government’s fail policies fit The FCC’s rigorous requirement. far less this requirement. even
A its asserted in The FCC claims to advance interest di- viewpoints by ethnicity pecu- singling out race and as verse require liarly linked to distinct views enhancement. employ choice to a racial criterion embodies the The FCC’s particular viewpoint in- notions that a distinct related groups, particular appli- in certain and that a racial heres ethnicity by alone, virtue of race is cant, or more valued than applicants “likely provide [that] other because distinct p. perspective.” in 89-453, 17; Brief for FCC No. see 1978 (policies Policy “rep- Statement, 2d, at 981 68 F. C. C. seek minority viewpoints programming”); Brief resentation (current p. ownership FCC No. for structure programming “minorities[’]. creates deficient . . tastes and directly equate viewpoints”). policies The race with belief they necessary behavior, race as a establish and suffi- preference. securing cient condition The cho- FCC’s “premise rest on race, sen means differences in or in person’s color of a real skin, reflect differences that are person’s right blessings to a relevant to share a free society. utterly [T]hat premise repugnant is irrational and principles society.” Wygant, a free and democratic (internal supra, dissenting) quotation at 316 (Stevens, J., omitted). policies impermissi- omitted; marks bly citation they presume persons value individuals because in a think manner associated with their race. See Steele v. App. FCC, 248 U. S. D. C. F. 2d (1985) (minority contrary preference to “one of our most principles cherished constitutional and societal an in- . . . that tastes, beliefs, dividual’s and abilities should be assessed on by categorizing their own merits rather than that individual group presumed a member of a as racial to think and behave (Oct. particular way”), 1985), vacated, in a No. 84-1176 1986). (CADC, remanded 9,Oct. particularly strong
The FCC assumes a race correlation of justifies behavior. The its FCC conclusion that insuffi- ciently by viewpoints are broadcast diverse reference to the percentage minority-owned assumption stations. This only minority-owned pro- correct to the extent that stations views, vide the and that desired additional stations owned *60 by preferences individuals the cannot, not favored or at least underrepresented programming. not, do broadcast Addi- tionally, ownership improve program- the FCC’s focus to ming preferences strong assumes that linked to race are so they operating that will dictate the owner’s behavior in the personal overcoming station, owner’s inclinations and re- gard strong for the This link market. between race and especially behavior, when mediated market forces, is the assumption rejected that Powell in his Justice discussion of health care Bakke. See 438 S., service U. at 310-311. argued In that case, the state medical school that it could prefer minority groups they members of because were more likely particularly needing to serve communities medical rejected concluding care. rationale, Justice Powell this that assumption unsupported was and that such individual presumed ethnicity choices could not from Ibid. be or race. majority point by arguing this addresses that the equation of race views “im- with distinct and behavior is not permissible” particular Apart Ante, in these cases. at 579. placing from ity undue faith the Government abil- and courts’ distinguish “good” stereotypes, to from “bad” this rea- soning repudiates equal protection principles essential prohibit generalizations. racial The Court embraces the reasoning applicant’s likely FCC’s that an race will indicate applicant perspective, possesses that the a distinct but notes assump- rigid race to behavior is correlation of “not every about owners will behave in case.” tion how corollary plain: this Ibid. The to notion is Individuals of unlikely backgrounds pos- unfavored racial and ethnic are background unique experiences and that contribute sess the corollary viewpoint diversity. reasoning Both the and its objectionable disregard about a stereo- reveal but what inevitably The racial does generalization not type: apply individuals, may persons certain and those claim legitimately have been to their they according race rather judged a relevant criterion. See Los upon Angeles than Dept. of (1978) Manhart, Power 435 U. S. Water (“Even a true about class is an generalization insufficient an individual to whom disqualifying reason the generaliza not apply”). tion does is the Similarly disturbing majority’s that different treatment on the reasoning basis of race is per because “in the Ante, missible efficacious aggregate.” In Wiesenfeld, we similar 579. rejected “Obvi reasoning: the notion that ously, likely men are more than women to be of their primary supporters spouses children is not without But entirely empirical such a support. gender- generalization based cannot suffice to justify denigration *61 of the efforts women who do work and whose con earnings ” significantly tribute to their families’ support. S.,U. (citation omitted). in these Similarly cases, if even equation of Court’s race and programming has viewpoint basis, empirical some equal protection principles prohibit Government from that basis to relying upon racial employ (“Practices Manhart, classifications. See at 709 supra, classify employees race, of religion, terms or sex tend to traditional preserve about assumptions groups rather than individuals”). This thoughtful scrutiny reliance on the and on “aggregate” confirms that probabilities the Court has abandoned which heightened scrutiny, requires a direct rather than approximate fit of means to ends. We would not tolerate the Government’s claim that hiring persons of a par ticular race leads “in to better service the aggregate,” and we should not accept as the FCC’s claim in legitimate these cases that members of certain races will provide superior program even if “in the The ming, text, Constitution’s aggregate.” cases, our and our foreclose such history premises. Nation’s
B Moreover, selective FCC’s focus on viewpoints asso- ciated with race illustrates a particular tailoring difficulty. The asserted interest the Nation’s advancing different “social, political, esthetic, moral, and other ideas and experi- Lion, Red ences,” S., 395 U. at 390, of all yet the varied traditions and ideas shared our among citizens, the FCC has sought amplify only those particular views it identifies through classifications most suspect under equal protec- tion doctrine. Even if distinct views could be associated with particular ethnic and racial groups, focusing this par- ticular aspect Nation’s views calls into question the Government’s genuine commitment to its asserted interest. Bakke, J.) (race- S.,U. at 314 (opinion Powell, conscious measures be might employed to further diversity if only race were one of many aspects of background sought and considered relevant achieving diverse student body).
Our equal protection doctrine intermediate re- governing view indicates that the Government not use race and may as ethnicity “a ‘proxy other, more bases of clas- germane Hogan, Craig sification.’” S., 458 U. v. quoting Boren, 190,198 429 U. S. The FCC has used race as for whatever proxy views it believes to be underrepresented in the broadcasting spectrum. This reflexive or unthinking use of a suspect classification is the hallmark of an unconstitu- g., Wengler Druggists See, e. Mutual Ins. tional policy. Craig, supra, Co., 446 U. S. 151-152 (1980); at 198-199; supra, Wiesenfeld, at 643-645. ill fit of means to ends is *62 manifest. The policy is over inclusive: members of a Many particular racial or ethnic will in group have no interest ad- vancing views the believes FCC to be underrepresented, or will find them utterly The foreign. is underinclu- policy sive: It awards no to preference disfavored individuals who bemay well in particularly versed and committed to present- those views. ing The FCC has failed to implement a case- by-case determination, and that failure is particularly unjus- already hearings in the occur, as individualized when
tified licensing process. Orr, 440 S. Orr v. U. comparative re- context, we have Even the remedial 268, 281 adopt that the means to ensure quired that the Government preference inter- particular the asserted advances of a award § powers, reviewing an exercise of 5 Fullilove, In even est. only challenged upheld because it con- set-aside the Court program provision that the that ensured a waiver tained particular Fulli- cases. See function its remedial served J.); Burger, (opinion also C. see S., at 487-488 love, 448 U. J.). (opinion O’Connor, Croson, S., at 488-489 488 U. programs survive even inter- cannot Moreover, the FCC’s scrutiny and untried means race-neutral because mediate directly accomplishing readily governmental interest are directly advance its interest could The FCC available. programming provide be- requiring the FCC licensees to diversity. interest asserts the FCC add to lieves would adopting challenged diversity, yet programming inis having attempted any expressly policies, disclaimed the FCC goal. Policy See 1978 to achieve its asserted efforts direct ante, Statement, at n. 36. 2d, 981; 68 F. C. C. suggests convenience excuses that administrative The Court scrutiny yet ibid., bars the Govern- failure, intermediate this relying upon to avoid measures that that excuse from ment g., directly Orr, e. v. See, interest. Orr further the asserted Craig supra,.at swpra, Boren, 198. The FCC and 281; suggest interests some that First Amendment the Court employing exempt direct, from this should the FCC manner They asserted interest. means to achieve its race-neutral may equal protection prin- essentially argue our that we bend readily apparent ciples First avoid more harm our ways: cannot have it both values. But the FCC Amendment seeking Amendment bars FCC from Either the First may directly; accomplishindirectly accomplish or what it not may pursue goal, in manner but must do so the FCC principles. comports equal protection ifAnd the with *63 any programming employ can fashion, FCC direct it must resorting that direct means before to indirect race-conscious means. exist,
Other race-neutral means also and all are at least as direct as the FCC’s racial classifications. The FCC could applicants upon ability provide, evaluate to their and com- programming mitment offer, whatever the FCC believes underrepresented viewpoints. would reflect If the FCC truly programming seeks diverse rather than allocation of goods persons particular backgrounds, racial it has little background programming excuse to look racial rather than programming Additionally, to further interest. if the by persons unique that FCC believes certain virtue of their experiences will contribute as owners to more diverse broad- casting, simply applicants par- the FCC could favor whose background they ticular will indicates add to the diver- sity programming, rely solely upon suspect than rather Also, classifications. race-neutral means exist to allow ac- broadcasting industry persons cess to the for those excluded for financial and related reasons. Court reasons that minority preferences, including various those reflected experience, sale, information, distress overcome barriers of financing minority ownership. Ante, inhibit 593-594. Race-neutral financial informational measures directly most reduce financial and informational barriers. develop policy, The FCC could an effective ascertainment guaranteeing programming underrepre- one that reflects viewpoints. sented The Court’s discussion of alternatives nearly exclusively pol- the FCC’s focuses on ascertainment icy. policy applied only Ante, at 585-589. Yet that to exist- ing viewpoints licensees, addressed not but issues of concern relatively homogeneous by to often communities, local and, the FCC’s own admission, was toothless and ineffective. According policies FCC, to the ascertainment altered programming already little more than the market did, and provided guarantee “no a concern once is ascertained *64 programming responsive means, or formal informal to that presented.” Stations, will be TV concern Commercial (1984), denied, F. C. C. 2d reconsideration (1986), grounds C. 2d remanded on sub nom. F. C. other App. FCC, Action Television v. 261 U. S. Children’s (1987); see 2d, D. C. 821 F. 2d also 98 F. C. C. at Unsurprisingly, 1098-1101. FCC has concluded that policy proved has effec- this limited ascertainment not to be throughout it tive, id., and has eliminated most media. See (surveying proceed- nn. 1097-1101;id., and requirements). ings abandoning ascertainment “minority posited The a relative absence FCC has view- yet suggested points,” might it never what has those views viewpoints might be or what other be absent the broad- from casting spectrum. any particular It has never identified deficiency diversity programming that should be the sub- ject greater programming or that necessitates racial classifications. attempted
The FCC never has assess what alterna- might prove tives to racial classifications effective. The 1978 Policy only Statement referred two alternatives that the minority hiring policy Commission had undertaken: a policy. 68 F. 2d, ascertainment C. C. at 979-980. Re- lying ownership cursory on statistics evaluations of what viewpoints broadcasting spectrum contained, the FCC programming diversity asserted that insufficient existed and necessary. Id., that racial classifications were at 980-981. attempt Not until 1986did the FCC to determine the nature viewpoints might underrepresented be or to de- might termine whether effective race-neutral measures g., achieve See, the FCC’s asserted interest. e. Notice Inquiry Racial, Ethnic, or Gender Classifications, (1986), modified, F. C. C. Red 1315 (1987). 2 F. C. C. Red 2377 poten- range solicited comment FCC about a tial race-neutral alternatives: It race- asked what effectively might diversity, program neutral means increase require showing ability whether it an should individualized program diversity, to contribute to it whether should allow nonminority ability members demonstrate their to contrib- programming, ap- ute to diverse it whether should select plicants particular based on demonstrated commitment to is- according sues rather than to race. 1See F. C. C. Red, at inquiry, congressional 1318. It course, was this that the appropriations Continuing Appropria- halted. measures tions Act for Fiscal Year Pub. L. 100-202, 101 Stat. 1329. Thus the is clear: record The FCC has never deter- *65 any mined that it has need to resort to racial classifications employed interest, to achieve its asserted and it has race- adopting readily conscious means before available race- neutral, alternative means. tailoring
The to avoid FCC seeks the difficulties focus- ing minority ownership rather than the asserted inter- diversity viewpoints. est in of broadcast The Constitution clearly prohibits allocating goods valuable such as broadcast simply Bakke, licenses on the basis of S., race. See 438 U. J.). (opinion Powell, at 307 Yet the FCC refers to the minority ownership support lack of of stations to the exist- diversity viewpoints, ence of a lack of and has fitted programs ownership. Policy its to increase State- supra; Policy Regarding ment, Commission Advancement Minority Ownership Broadcasting, 92 F. C. C. 2d 849 repeated ownership supports This focus on the infer- ence that the FCC seeks to allocate race, licenses based on an impermissible diversity end, rather than to increase of view- points, justification the asserted interest. And this that preferences minority ownership links the use of race diversity viewpoints rather than to ensures that the FCC’s programs, Croson, like that issue “cannot be said to be narrowly any goal, except perhaps outright tailored to racial balancing.” Croson, S., 488 U. at 507.
C in the from these defects FCC’s tailoring poli- apart Even flaw the Government’s ill fit underscores cies, particular one assume, ends. The policies rely FCC’s of means of a “nexus” existence bound between tightly upon, and the race Court’s resulting programming. owners’ ante, issue, of this purports discussion lengthy that some between owners’ race only relation exists establish e., i. FCC’s choice to that focus on and programming: to the of licenses is related asserted end. rationally allocation stronger claims, makes no be- understandably The Court evidence no because the provides support req- cause would so abandon scru- obviously heightened uisite deference sake, we can that argument’s grant For Court’s tiny. and social science congressional studies hearings review rational nexus. the existence of some But even establishes true, to be the Court’s discussion does not assuming are directly to establish and sub- begin programs related to the interest diverse stantially programming. issue on the owners’ race protection degree That turns equal whether any related to rather than relation programming, the extent cannot show exists. To that the FCC the nexus that failure confirms the chosen nearly complete, to be *66 interest, not asserted that the directly means do advance the instead upon stereotypes, rest policies illegitimate use of replace individualized determinations must FCC’s race as a the desired proxy programming. difficulties that the nexus between owners’ suggest
Three
less than substantial.
considerably
race and
is
programming
to a
the market
tremendous ex-
First,
shapes programming
own
Members of
who
licenses
minority groups
might
tent.
broadcast
like other
to seek to
owners,
programs
be thought,
audiences,
attract and retain
rather than programs
that will
Winter
that reflect the owner’s tastes and
See
preferences.
FCC,
Communications,
Park
Inc. 277 U. S.
D. C.
App.
(case below)
(1989)
(Wil-
F.
134, 145-148,
2d
concurring
part
dissenting
part) (survey-
liams, J.,
ing
suggesting programming geared
evidence
to audience
taste).
only
Second, station owners have
limited control
programming.
pre-
over the content of
The distress sale
particularly
difficulty
sents a
acute
of this sort. Unlike the
comparative licensing program,
policy pro-
the distress sale
preferences minority
vides
owners who neither intend nor
manage
any respect.
desire to
the station in
ante,
See
Policy Regarding
557-558; Commission
Advancement Mi-
nority Ownership Broadcasting, supra.
Whatever dis-
programming may
actively
tinct
an
attend the race of
owner
managing
station,
involved
an absentee owner would
programming.
have far less effect on
absolutely
Third, the
had
FCC
no factual basis for the
adopted
policies
nexus when it
and has since established
support
none
its
existence. Until the mid-1970’s, the
public
FCC believed that its
interest mandate and 1965Pol
icy
precluded
awarding preference
Statement
it from
based
ethnicity,
required applicants
on race and
and instead
particular
advantage
demonstrate
entitlement to an
in a com
parative hearing. Policy
Comparative
on
Statement
Broad
(1965).
Hearings,
g.,
cast
F. C.
See,
C. 2d 393
e. Mid-
(Rev.
Corp.,
Bd.),
Florida Television
33 F.
2d 1
C. C.
(1972),
denied,
review
37 F. C.
rev’d,
C. 2d 559
TV Inc. v.
App.
(1973),
FCC, 161 U. S.
D.
C.
“For Commission has ined there is a nexus between a broadcast own- whether diversity, gender program either on er’s race or case-by-case generically. to, basis or We had no reason could, must, court TV 9 indeed because the told us we Minority-Owned nexus.” Broadcast assume such a Sta- Hearing tions, H. R. on 5373 before Subcommittee Protection, and Fi- Telecommunications, Consumer Energy nance the House and Com- Committee on Cong., merce, Sess., 99th 2d Through Congress appropriations barred measures, attempt Continuing FCC’s to initiate examination. See Appropriations Act for Fiscal Year 101 Stat. 1329-31. apart claims,
Even from the limited nature of the Court’s congressional First, little can be discerned from the action. survey purport the Court’s does not to establish that the *68 deficiency any particular in Congress has identified FCC or spectrum. viewpoints Sec- the broadcast contained the may degree congressional endorsement transform no ond, per- thoughts equation behavior and into the of race with governmental ex- Even most action. the missible basis of congressional lavishly press declaration and documented produce and will as owners distinct members certain races superior programming allow the Government would not employ reasoning burdens such to allocate benefits and among be- Third, we hesitate citizens on that basis. should any regarding accepting even definitive declaration fore as legislative Reports that two of a nexus. The the existence provide no to sources some nexus to exist refer claim p. Rep. proposition. support 100-182, S. No. the See (1982). Congress, (1987); Rep. p. H. R. No. Conf. sought through appropriations measures, to foreclose exami- entirely unre- an believed to be issue that the FCC nation Continuing Appropriations Year Act for Fiscal solved. rejects Congress supra. Especially consid- where the particular judgment possessing of the executive officials ered hardly expertise regarding issue, courts are the matter g., accept congressional e. See, declaration. bound to (1981) Goldberg, J., 83-85 453 U. S. Rostker (White, challenged dissenting). Additionally, created the FCC appropriations process, Congress through policies. has, by preventing policies place from FCC frozen those congressional reexamining altering action them. That or reasoning em- not amount to an endorsement does originally pirical and then abandoned claims asserted judgment considered em- FCC, not reflect the same does through legislative process measures crafted bodied accompanying subject hearings and deliberation to the legislation. Hill, Cf. TVA v. 437 U. S. substantive (1978); Club, 442 U. S. Andrus v. Sierra D Finally, employ the Government cannot race classifications unduly burden individuals who are not members of the groups. g., Wygant, racial See, favored and ethnic e. (plurality opinion). challenged poli- S., at 280-281 U. independent requirement, fail this cies as well as the other *69 requirements. comparative licensing The constitutional and programs provide sale distress eventual licensee with an exceptionally property unique valuable and with a rare and opportunity community. to serve the local The distress sale imposes particularly significant a burden. The has at FCC specialized exclusively created a market base minority reserved applicants. rigid quota controlled There is no more a than 100% set-aside. This fact is not altered the ob- ante, servation, see 598-599, at that the FCC and the seller may have some discretion over whether stations be sold through program. purchaser the distress For the would-be person compete opportu- or who station, seeks to for the that nity depends entirely upon ethnicity. race or The Court’s argument only per- that the distress sale allocates a small centage ante, all sales, license at also the mark. misses argument readily supports complete preferences This scrutiny particular programs: response avoids It is a no person discharged denied school, admission at one or from job, solely race, one on the basis of that other schools or em- ployers do not discriminate. comparative licensing program, imposes sig- too, emphasis
nificant burden. The Court’s on the multifactor process prefer- should not be confused with the claim that the ence is some sense minor one. It is not. The basic given nonrace criteria meet, are not difficultto and, the sums applicants every stake, have incentive to structure their ownership arrangement prevail comparative proc- in the Applicants ess. race, cannot alter their course, and race clearly dispositive percentage factor in a substantial comparative proceedings. Petitioner Metro asserts dispositive overwhelmingly reply, factor. In race is operation not assessed the of its own admits that it has FCC p. program, 89-453, No. and the Court Brief for FCC only “minority ownership guarantee does not *70 dissenting. years Ferguson, ago Plessy 100 v. 537
Almost 163 U. S. (1896), government-sponsored upheld this race- Court required “equal measure, a Louisiana law that but conscious separate “white” and railroad accommodations”for “colored” passengers. asked whether the were Court measures ques- determining “[i]n “reasonable,” and it stated that legislature] liberty [the reasonableness, tion of is at to act usages, with reference to and tradi- the established customs people, promotion tions of the and with a view to the of their Plessy Id., comfort.” at 550. The Court concludedthat the “race-conscious it reviewed were be- measures” reasonable they increasing governmental cause served the interest of riding pleasure passengers. of railroad The fundamental Plessy, errors its standard of review and its validation by State, rank racial law for insult distorted the apparent six decades before the Court announced its demise Education, in Brown v. Board U. S. and its explication
Plessy’s standard of review have disturb- today’s majority opinion should warn us ing parallels is amiss here. something the Court latitude to “be-
Today grants Congress employ . . . [that] race-conscious measures are not. . . nign designed compensate governmental victims of or societal dis- past crimination,” but that important governmental “serve objec- substantially . . . and are related to tives achievement of Ante, 564-565. objectives.” those The interest the Court the race-conscious measures accepts uphold of the Federal (Commission FCC) Commission or Communications is “broad- diversity.” Furthering interest, told, cast we are the cost worth of discriminating among citizens on the basis of race because it will increase the of media listening pleasure In audiences. this preference, ex- upholding majority Plessy’s humes deferential to racial approach classifications. The Court the broad abandons even societal remedial justifi- cation for racial preferences once advocated by Justice Mar- e. g., Regents University Bakke, shall, of California (1978) 438 U. S. (separate opinion), and now will allow the use of racial classifications untied to Congress the effects of any goal past race discrimination. addressing All that need be the new shown under until approach, which Richmond v. A. now had J. only advanced, Justice Stevens (1989) Co., Croson U. S. (opinion concurring Wygant v. Jackson Board part concurring judgment); (1986) Education, 476 U. S. (dissenting opinion), is that the future effect of citizens on discriminating among the basis of race will advance some “important” govern- mental interest. *71 the
Once Government takes the which be step, itself should forbidden, into law the enacting stereotypical assumption that the race of linked to content, owners is broadcast it fol- lows a that becomes ever more must de- path tortuous. It which cide races to favor. While the Court refers repeatedly ante, at “minorities,” to the as preferences favoring imposed purports on “nonminor- burdens to evaluate emphasized discrimi- that the must be 596, it ities,” ante, at many today operate upheld natory policies exclude to the Commis- have not made minorities that racial and ethnic protected is be of the races to list. The enumeration sion’s ra- the remedial statute, but since remedial from a borrowed policy, the in order to sustain must be disavowed tionale govern- asserted relation to the bear scant race classifications jus- reasoning provides little The Court’s mental interest. welcoming classifications the return of racial tification for our Nation’s laws.1 per- agree the Constitution the Court that
I with cannot among its citizens to discriminate mits the Government so trivial as interests in order to serve of race the basis scrutiny abandoning diversity.” to en- In strict “broadcast on the level the clock Court turns back interest the dorse this scrutiny applicable measures. race-conscious to federal early scrutiny may invalidate have sufficedto not strict Even validity, as we learned most doubtful race-based laws of (1944). But the States, 323 S.U. Korematsu v. United today validate would review embraced relaxed standard any classifications of future racial number case, difficulties, practical and constitu both The fails to address Court its decision tional, defining groups members of racial with the task of necessary Commission, example, it for has found require. will applicant history family to 1492 to conclude applicant’s trace an policy. See of a tax certificate “Hispanic” purposes was (1981). Co., very “the agree that Broadcasting I 87 F. C. C. 2d Storer charac racial beneficiary’s qualifying precision a attempt to define with Klutznick, Fullilove our constitutional ideals.” repugnant teristics id., (1980) (Stevens, J., see dissenting); 448, 534, n. 5 448 U. S. J., is to make (Stewart, dissenting). “If the National Government administered that can be racial classes criteria define a serious effort to Regulation to the First study precedents such as the objectively, it must 14, 1935, in 4 Nazi Con November translated Citizenship Law of Reichs (1946).” Id., 1417-PS, pp. 8-9 Document No. spiracy Aggression, Registration Population examples available. are n. 5. Other Africa 71 Republic South Act No. 30 of Statutes *72 may scrutiny find Government useful. Strict is the surest yet holding has test the Court devised for true to the con- equality. stitutional command racial Under our modern precedents, explains, scrutiny as Justice strict O’Connor applied approach must be to this statute. The taken to con- § gressional measures under 5 of the Fourteenth Amendment (1980), Klutznick, v. Fullilove U. S. even assum- validity,
ing
supra,
(opinion
see Croson,
its
at 518
of Ken-
applicable
J.), is not
to this case.
nedy,
congressional power,
As
exercises
to other
our cases fol
lowing Bolling Sharpe,
(1954),
The Court insists that the under review are “be- nign.” agrees. “[T]he reason for the Justice Stevens recognized classification—the interest broadcast diver- sity clearly imply any judgment identified and does not —is concerning the abilities ofowners of different races or the mer- programming. its of different kinds of Neither the favored stigmatized any way.” nor the disfavored class is Ante, concurring).2 J., A fundamental error (Stevens, 2Justice the FCC Stevens’ policy assertion that imply “does any not judgment concerning . . . the merits of different kinds of programming,” ante, is curious. If policy, explicitly this which is aimed at the ulti content, goal altering mate programming not'“imply any does judgment concerning . . . the merits of different programming,” kinds of then it is ability Plessy was its similar confidence its Court *73 identify “benign” underly- consider the discrimination: “We ing fallacy plaintiff’s argument the to consist the of separation assumption the enforced of the two that races badge inferiority. stamps race with a of If the colored this by anything be of in the so, act, it is not reason found but solely put race because the colored chooses to that construc- upon Although majority S., tion at 551. it.” 163 U. is “confident” that it can determine when racial discrimination explanation benign, ante, is n. it offers no as to how it will do so. justifies ground its result
The Court also on the “Con- gress may have determined that there and the Commission important broadcasting practices between be differences nonminority of those of owners and their counter- parts.” The Court is Ante, at 580. all too correct by type employed Congress reasoning the Commissionand separation preference is of racial not novel. Policies are always justified benign, any almost as even when it is clear to they following sensible observer that are not. The state- example, among up- ment, fit well those offered to for would preference policy: policy racial hold the Commission’s “The concept inferiority, any superiority not based on merely or but people particularly differ, on the fact their group loyalties, associations, cultures, outlook, modes of life development.” Africa and standards of See South (1968)(official publication Afri- Rule of Law 37 of the South Government). can history governmental reliance on race demonstrates policies benign
that racial defended as often are not seen that way by Today’s affected them. dismissive the individuals may plan type im- aside, statements of the sustained here pose supposed “stigma Croson, beneficiaries,” its interest, any governmental policy difficult to see how the FCC’s serves let substantially important alone furthers an one. (opinion S., at 516-517 U. and “foster intol- Stevens, J.), antagonism against membership
erance and entire classes,” Fullilove, favored dissenting). Although 448 U. at 547 (Stevens, S., J., majority it, disclaims the FCC policy demeaning seems based on the notion that members of groups “minority racial the defined ascribe to certain views” Special be different from that must those of other citizens. preferences also can foster the view that members of the fa- groups inherently compete are vored less able to on their rightly wrongly, special preference programs And, own. or perceived targets exploitation by opportun- are as
often monetary advantage seek to take ists who rewards without advancing policy minority the stated inclusion.3 *74 perceptions of the excluded class must also be weighed, with attention to the cardinal rule that our Con- protects each individual, stitution citizen anas not as a mem- group. danger “stereotypical ber of a thinking” There is the that the prompts policies such as the FCC rules here “stigmatizes disadvantaged unproven the with class the charge past racial Croson, discrimination.” S.,U. J.). (opinion pro- of Stevens, Whether or not such grams message conveyed can be “remedial,” described as the acceptable group is that it is to harm a member of the ex- privilege. the cluded from benefit or If this is to be consid- acceptable ered under Constitution, there are various possible explanations. group disadvantaged One is that the by preference stigma all, should feel no because racial preferences address not the evil of intentional discrimination continuing stereotypes but the unconscious use that disad- 3The in one record of these two cases indicates that Astroline Commu Company, beneficiary case, nications policy of the distress sale in this capitalization had a total of approximately $24 million. Its sole principal Hispanic-American was a who held 21% of Astroline’s eq overall uity voting its equity. and 71% of His total cash contribution $210. was App. in pp. No. 68-69. proposition minority groups. vantage this is not But knowledge many “have never dis- citizens, who to their anyone against race,” ibid., will the basis criminated easy accept. find stigma imposed might explanation that the be
Another upon overlooked, either because be excluded class should wrongs grievous must past disfavored class that the are so simply harms are individual blame, or because bear collective compensate in- for racial in the face of efforts irrelevant premises that the Court even equalities. not But these are analysis. willing appears Until the Court in its to address imposed pref- stigma racial about the existence candid “animosity about the classes, candid affected on both erences supra, they Fullilove, at 532-533 create, and discontent” theory defending dissenting), open about J., (Stevens, bearing stigma why explains is worth the cost of this be why Constitution, no basis can can consist with it scrutiny. today’s of strict casual abandonment shown for composition di- Though Nation is far more of this the racial warning in foresaw, his first Harlan than the Justice verse apposite: two “The destinies of the is now all the more dissent together, indissolubly country, linked are in this races, government require common that the of both the interests planted permit be under race hate to the seeds of *75 all not shall (dissenting Plessy, S., law.” U. the sanction Perhaps role opinion). its assumed can succeed Court benign case-by-case it is desirable arbiter of when and favor others some citizens to disfavor the Government Perhaps the tolerance color of their skin. on the based people aspire decency let the disfavored rise will which our escape hostility But condescension. and the favored above enterprise, suggests peril history and so in this much regret I that after it. forbids us to undertake Constitution century judicial opinions interpret we the Constitution to “separate nodo more than move us equal” from but to “un- equal benign.” but notes applicant prevail.” Ante, will n. 50. an sum, In has not met its burden even under the FCC approves racial are test that classifications that Court’s substantially governmental important an ob- related to clearly jective. programs even more fail the course, Of scrutiny applied. that should be The Court has deter- strict Congress agencies are mined, essence, that all federal significant exempted, degree, but from to some ill-defined protection requirements. equal This the Constitution’s precedents greatly equal protec- break with our undermines guarantees permits among citizens tion distinctions ethnicity clearly on race and which the based Constitution respectfully I forbids. dissent. Kennedy, with whom Justice Scalia joins, Justice