Another Blow Against Racial Preferences

Steven Hayward

April 17, 1998

While President Clinton continues to engage in endless gabfests as a part of his "conversation about race" designed to "mend but not end" affirmative action, the federal courts aren’t waiting. On Tuesday, April 14 the Federal Circuit Court of Appeals for the District of Columbia dealt another shattering blow to the regime of racial hiring quotas and preferences in a case that has not yet drawn front page attention from the media. The case pitted the Lutheran Church of Missouri against the Federal Communications Commission, and the court’s stinging opinion lifts the veil on the way racial preferences have worked as an insiders’ game.

The Lutheran Church of Missouri operates two radio stations, one of which offers Lutheran religious programming, and the other which offers classical music along with religious programming. The stations are housed rent-free on the campus of the Lutheran-affiliated Concordia Seminary, and are low-budget operations. But anyone who operates a radio station of any size or description must renew their FCC broadcast license periodically, and the Lutherans ran afoul of the FCC and the National Association for the Advancement of Colored People (NAACP) during its license renewal application back in 1989. The FCC said that the Lutheran’s Equal Employment Opportunity (EEO) hiring practices were insufficient; although the FCC granted the license renewal, they fined the Lutherans $25,000, and imposed a strict set of time consuming and burdensome reporting requirements.

Wait a minute, you might well ask at this point: why is the FCC engaged in reviewing hiring practices? Isn’t that a job for the Equal Employment Opportunity Commission or the Civil Rights Division of the Justice Department? In fact, all federal agencies have found a way to get into the affirmative action game by some means. The FCC justifies affirmative action regulations in the interest of "diversity" on the airwaves, even though it permits religious broadcasters a narrow exemption, allowing them to exclusively hire church members for the behind-the-microphone jobs. But the FCC requires that non-broadcast jobs—secretaries, engineers, ad salespeople—be racially diverse, even though these jobs are unrelated to the "diversity" of what goes out over the airwaves. The court was not amused by this obvious and self-serving contradiction.

The Lutherans nonetheless had hired several minorities, including a Hispanic woman. But the NAACP argued before the FCC that the Lutherans should get no credit for hiring a Hispanic because Hispanics comprise such a small portion of the local labor force; if the Lutherans had followed the correct hiring procedure, which focuses on strict proportionality of the local labor force, they would have hired a black instead. The NAACP intervention makes explicitly clear that the regime of racial preferences not only entails a strict proportionality that makes a hash of the idea of individual rights and common citizenship, but also ultimately pits minority groups against each other.

During the 1970s and 1980s the federal courts tended to look the other way about affirmative action regulations that emphasized "goals" based on "proportionality." No longer. Since Adarand v. Pena and similar cases, the federal courts are blowing over the affirmative action house of cards. The court’s opinion in the current case could not be any more clear: "Perhaps this [case] is illustrative as to just how much burden the term ’diversity’ has been asked to bear in the latter part of the 20th century in the United States. It appears to have been coined both as a permanent justification for policies seeking racial proportionality in all walks of life (’affirmative action’ has only a temporary remedial connotation) and as a synonym for proportional representation itself… We therefore conclude that [the FCC’s] EEO regulations are unconstitutional…" There is much more thumping language like this in Judge Lawrence Silberman’s opinion.

That’s not quite the end of the story, however. Recall that a few months ago civil rights groups gathered several hundred thousand dollars to pay off Sharon Taxman, the public school teacher who was the plaintiff in the Piscataway, New Jersey, case that was about to be decided by the Supreme Court. Affirmative action backers wanted desperately to prevent the high court from ruling on this case, because they knew they would lose. Similarly with this case, the FCC had a suspicion it would lose as the case made its way through the appeals process. The FCC petitioned the court to give the whole matter back to them for reconsideration, hinting that they would let the Lutherans off the hook (but not that they would change their general policy for everyone else). The court wasn’t buying this tactic, admonishing the FCC that "the Commission has on occasion employed some rather unusual legal tactics to avoid judicial review, but this ploy may well take the prize."

Because the DC Circuit Court of Appeals is the appellate court of jurisdiction for most federal agencies, the affirmative action programs of every federal agency, already under a cloud after Adarand, are facing a cloudburst. This case is just the latest confirmation that the constitutional basis of affirmative action is gone. When will the former constitutional law professor currently living in the White House acknowledge this?

Steven Hayward is an Adjunct Fellow of the Ashbrook Center for Public Affairs at Ashland University.