THE MINORITY OWNERSHIP POLICIES

Congress, through the Communications Act of 1934, authorized the Federal Communications Commission (FCC) to grant licenses, based on "public convenience, interest, or necessity," to persons wishing to construct and operate radio and television stations.  After years of effort, FCC acknowledged that its policies had not increased the diversity of broadcast content and that the views of minorities had been inadequately represented.  FCC considered this lack of diversity to be detrimental to the minority audience and the entire viewing and listening public.

To improve the diversity of broadcast content, FCC adopted two minority ownership policies.  First, it pledged to consider minority ownership as one factor in comparative proceedings for new licenses.  Minority ownership and participation in management would be considered in a comparative hearing as a "plus" to be weighed together with other relevant factors.  Second, it adopted a plan to increase opportunities for minorities to receive reassigned and transferred licenses through a "distress sale" policy.  This distress sale policy allowed a broadcaster whose license had been designated for a revocation hearing, or whose renewal application had been designated for hearing, to assign the license to an FCC-approved minority enterprise.  

Application of the Policy

There were two cases involved in the decision.  The first involved a challenge of FCC's policy awarding preference to minority owners in comparative licensing proceedings.  In this case, FCC awarded an applicant substantial credit in its review because it was 90 percent Hispanic owned.  The second case resulted from a licensee of a television station that attempted to execute a minority distress sale.  This minority distress sale was opposed by an applicant for a new station in the same geographic area who requested that FCC deny the distress sale and set up a comparative hearing to examine its application for a television station.

THE ISSUE

Did the two minority ownership policies violate the equal protection component of the Fifth Amendment.

THE JUDGMENT

The benign race-conscious measures mandated by Congress -- even if those measures are not "remedial" in the sense of being designed to compensate victims of past governmental or societal discrimination -- are constitutionally permissible to the extent that they serve important governmental objectives within the power of Congress and are substantially related to achievement of those objectives

THE COURT OPINION

This decision includes a majority opinion with a new level of scrutiny and a minority opinion completely against the majority decision. 

The opinion was delivered by Justice Brennan with Justices White, Marshall, Blackmun, and Stevens joining in the opinion.  

Standard of Scrutiny To Apply

In beginning their discussion of the standard of scrutiny to apply to these cases, the Court noted that 

"It is of the overriding significance in these cases that the FCC's minority ownership programs have been specifically approved--indeed, mandated--by Congress."

In its opinion, the Court was careful to note that its decision in Croson dealt with a minority set-aside program adopted by a municipality and that the decision did not prescribe the standard of scrutiny to be applied to a benign racial classification employed by Congress.  Instead, the Court pointed to its Fullilove decision to conclude that race-conscious classifications adopted by Congress to address racial and ethnic discrimination are subject to a different standard than classifications prescribed by state and local governments.

The Court also noted that in Fullilove, another federal program mandated by Congress, a majority of the Court did not apply strict scrutiny.  They further pointed out that three justices in Fullilove would have upheld benign racial classifications that "serve important governmental objectives and are substantially related to achievement of those objectives."  This is the standard that they used in this case.

Important Governmental Objective

The Court identified "broadcast diversity" as the important governmental objective and found that FCC’s minority ownership policies served that objective.  Noting the limited number of frequencies for broadcasting and FCC’s responsibility to serve the public, the Court said that the broadcast of diverse and opposing viewpoints was essential to the welfare of the public.  To bolster its opinion, the Court pointed to its Bakke judgment  where it recognized that a university’s efforts to seek “a diverse student body” was “a constitutionally permissible goal." 

The Court also pointed out that minorities constituted at least 20 percent of the United States population during the two decades preceding this opinion.  However, in 1971 minorities owned only 10 of about 7,500 radio stations and none of more than 1,000 television stations.  By 1986, minorities owned just 2.1 percent of over 11,000 radio and television stations.  Using an FCC study, the Court explained that the barriers to minority ownership included (1) a lack of adequate financing, (2) a paucity of information regarding license availability, and (3) broadcast inexperience.  Congress reported that the effects of past inequities stemming from racial and ethnic discrimination had resulted in the severe underrepresentation of minorities in the media of mass communications.

Substantial Relationship to the Achievement of the Important Objective

In linking minority ownership with the objective of broadcast diversity, the Court noted that it must pay close attention and give great weight to FCC’s expertise and Congress’ analysis of the facts.  The Court noted that FCC found that increased minority participation in broadcasting promoted programming diversity.  Additionally, the Court identified several Congressional actions and reports that indicated Congress’ belief that minority ownership provided for broadcast diversity.  Congress displayed this belief by directing FCC to maintain its minority ownership policies.  

Consideration of Alternative Means

The Court pointed out that FCC adopted and Congress endorsed minority ownership policies only after long study and painstaking consideration of all available alternatives.  In the case of FCC, the Court noted

• FCC efforts in 1946 and 1960 that directed station owners to discover and meet the broadcast interests of their communities or service areas.
  
  
• In the late 1960s, a special commission found that television stations were not providing service to their minority communities.  In response, FCC adopted equal employment opportunity regulations for station owners and new guidelines for station owners to devote a significant proportion of their programming to the concerns of minorities and ethnic groups.
  
  
• By 1978, FCC determined that its efforts still did not provide an effective means of generating adequate programming diversity.  As a result, FCC concluded that ownership was needed to foster the inclusion of minority views in the area of programming.

The Court recognized that FCC established minority ownership preferences only after long experience demonstrated that race-neutral means could not produce adequate broadcast diversity.  Additionally, the Court noted that Congress followed the FCC’s efforts closely and concurred in their minority ownership policy.

Tailored to Address a Specific Goal

The Court stated that the ownership policies were tailored at the barriers that minorities faced in owning stations.  For example, FCC

• Assigned a preference for minority status in the comparative licensing procedure that was designed to help compensate for a lack of broadcasting experience.
  
  
• Adopted the distress sale process to help overcome (1) inadequate capital by lowering the sale price and (2) the lack of information by providing an incentive to existing owners to identify potential minority buyers.

The Court considered that the ownership goals were temporary because the Congress would subject the policies to annual review during the appropriations process.   This afforded Congress with an opportunity to evaluate the results of the program and modify or eliminate the program according to its needs.

Sharing of the Burden

The Court found that for broadcasting licenses, the burden on non-minorities was slight.  They explained that applicants have no settled expectation that their applications will be granted without consideration of public interest factors such as minority ownership.  Award of a preference in a comparative hearing or transfer of a station in a distress sale contravenes no legitimate firmly rooted expectation of competing applicants. 

Additional Concurring Opinions

Justice Stevens returned to his dissenting opinion in Wygant.  His basic statement was

"Today the Court squarely rejects the proposition that a governmental decision that rests on a racial classification is never permissible except as a remedy for a past wrong.  Ante, at 564 - 565.  I endorse this focus on the future benefit, rather than the remedial justification, of such decisions."

Dissenting Opinions

Justice O'Connor submitted a dissenting opinion that was joined by Chief Justice Rehnquist and justices Scalia and Kennedy.

In leading off the dissenting opinion, the justices made their point that the strict scrutiny standard applies to all reviews of racial classifications.  They said

"As we recognized last Term, the Constitution requires that the Court apply a strict standard of scrutiny to evaluate racial classifications such as those contained in the challenged FCC distress sale and comparative licensing policies.  See Richmond v. J. A. Croson Co., 488 U.S. 469 (1989); see also Bolling v. Sharpe, 347 U.S. 497 (1954).  'Strict scrutiny' requires that, to be upheld, racial classifications must be determined to be necessary and narrowly tailored to achieve a compelling state interest.  The Court abandons this traditional safeguard against discrimination for a lower standard of review, and in practice applies a standard like that applicable to routine legislation. Yet the Government's different treatment of citizens according to race is no routine concern.  This Court's precedents in no way justify the Court's marked departure from our traditional treatment of race classifications and its conclusion that different equal protection principles apply to these federal actions."

These justices also explained that the equal protection provisions of the Constitution affects both the federal and state governments.  They said

"The Constitution's guarantee of equal protection binds the Federal Government as it does the States, and no lower level of scrutiny applies to the Federal Government's use of race classifications.  In Bolling v. Sharpe, supra, the companion case to Brown v. Board of Education, 347 U.S. 483 (1954), the Court held that equal protection principles embedded in the Fifth Amendment's Due Process Clause prohibited the Federal Government from maintaining racially segregated schools in the District of Columbia: "[I]t would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government." Id. at 500 . Consistent with this view, the Court has repeatedly indicated that "the reach of the equal protection guarantee of the Fifth Amendment is coextensive with that of the Fourteenth." United States v. Paradise, 480 U.S. 149, 166, (1987) (plurality opinion) (considering remedial race classification); id. at 196 (O'Connor, J., dissenting); see also, e.g., Buckley v. Valeo, 424 U.S. 1, 93 (1976); Weinberger v. Wiesenfeld, 420 U.S. 636, 638, n. 2 (1975)."

"Nor does the congressional role in prolonging the FCC's policies justify any lower level of scrutiny.  As with all instances of judicial review of federal legislation, the Court does not lightly set aside the considered judgment of a coordinate branch.  Nonetheless, the respect due a coordinate branch yields neither less vigilance in defense of equal protection principles nor any corresponding diminution of the standard of review.  In Weinberger v. Wiesenfeld, for example, the Court upheld a widower's equal protection challenge to a provision of the Social Security Act, found the assertedly benign congressional purpose to be illegitimate, and noted that  [t]his Court's approach to Fifth Amendment equal protection claims has always been precisely the same as to equal protection claims under the Fourteenth Amendment. 420 U.S. at 638, n. 2."

However, they noted the federal government's "unique" powers under paragraph 5 of the Fourteenth Amendment.   The Justices said

"Congress has considerable latitude, presenting special concerns for judicial review, when it exercises its "unique remedial powers . . . under § 5 of the Fourteenth Amendment," see Croson, supra, at 488 (opinion of O'Connor, J.), but this case does not implicate those powers.  Section 5 empowers Congress to act respecting the States, and of course this case concerns only the administration of federal programs by federal officials.  Section 5 provides to Congress the 'power to enforce, by appropriate legislation, the provisions of this article,' which in part provides that '[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.  U.S. Const.Amdt. 14, § 1.  Reflecting the Fourteenth Amendment's 'dramatic change in the balance between congressional and state power over matters of race,' Croson, 488 U.S. at 490 (opinion of O'Connor, J.), that section provides to Congress a particular structural role in the oversight of certain of the States' actions.  See id. at 488-491, 504; Hogan, supra, at 732 (§ 5 grants power to enforce Amendment 'to secure equal protection of the laws against State denial or invasion,' quoting Ex parte Virginia, 100 U.S. 339, 346 (1880)); Fullilove, 448 U.S. at 476-478, 483-484."

The remainder of the argument is set up in a format that is similar to the opinion of the Court.

Lack of a Compelling State Interest

The dissenting Justices noted that only a compelling interest may support the use of racial classifications under the strict scrutiny standard.  Additionally, they noted that

“Modern equal protection doctrine has recognized only one such interest:  remedying the effects of racial discrimination.  The interest in increasing the diversity of broadcast viewpoints is clearly not a compelling interest. It is simply too amorphous, too insubstantial, and too unrelated to any legitimate basis for employing racial classifications.”

The dissenting Justices stated that “An interest capable of justifying race-conscious measures must be sufficiently specific and verifiable, such that it supports only limited and carefully defined uses of racial classifications.”  They noted the past cases of Croson and Wygant and their concerns that “societal discrimination” was too broad and unclear an interest to be compelling.  Likewise they stated that broadcast diversity is too vague an interest to be compelling.

Narrowly Tailored

Narrow tailoring, as an element of strict scrutiny, is designed to ensure that the “means” chosen to satisfy the compelling interest fits the goal stated in the compelling interest "so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype."

The dissenting Justices state that the program assumes a "particularly strong correlation" between race and behavior.  For example, they question FCC’s “focus on ownership to improve programming” because it “assumes that preferences linked to race are so strong that they will dictate the owner’s behavior in operating the station, overcoming the owner’s personal inclinations and regard for the market.”

Over- and Under-inclusive

The Justices further note a lack of a link between the “means” of achieving the compelling interest and the interest..”  They explained that the policy is “overinclusive” because “many members of a particular racial or ethnic group will have no interest in advancing the views the FCC believes to be underreparesented, or will find them utterly foreign.”  At the same time, the policy is “underinclusive” because “It awards no preference to disfavored individuals who may be particularly well versed in and committed to presenting those views.”

Efforts to Identify a Race-Neutral Remedy 

The dissenting Justices claimed that race-neutral and untried means were readily available.  The Justices claimed that FCC could have adopted race-neutral measures such as

• Requiring station owners to provide programming that would add to diversity.
  
  
• Evaluating applicants upon their ability to provide, and commitment to offer, underrepresented viewpoints.
  
  
• Favoring applicants whose particular background indicates that they will add to the diversity of programming, rather than rely solely upon suspect classifications.

Undue Burden on Members Not Included in the Classification

The dissenting justices concluded that the FCC policy was an undue burden on individuals who were not members of the favored race or ethnic group.  For example, they said that the distress sale policy represented a rigid 100 percent quota.  Additionally, they believed that the non-race criteria in the comparative licensing process was not difficult to meet and that the race was the important factor in a substantial percentage of the comparative hearings.

Additional Dissenting Opinions