Nine years ago the Federal Communications Commission became displeased by the employment practices of two radio stations on the suburban St. Louis campus of Concordia Seminary of the Lutheran Church-Missouri Synod. The FCC's efforts to bully the stations have now backfired wonderfully.
The FCC said the stations violated equal employment opportunity standards by inadequate minority recruitment, and by seeking employees with certain religious and musical knowledge. Now the U.S. Court of Appeals for the District of Columbia has invalidated the 30-year-old affirmative action program that was the FCC's justification for acting.
One station operates non-commercially and has a religious format. The other operates commercially and specializes in classical music with a religious orientation, and some religious programming. The church believes that many, perhaps most, positions at both stations require employees knowledgeable about Lutheran doctrine and, at the one station, employees knowledgeable about classical music.
When in 1989 the church sought license renewal, the NAACP opposed this, saying the station's equal employment opportunity program was deficient and so was its number of black employees. The church responded that it had minority employees and engaged in minority-specific recruitment. However, it said the need for knowledge of Lutheran doctrine and classical music narrowed the local pool of qualified minorities.
The St. Louis Metropolitan Statistical Area is 14.1 percent black, 0.8 percent Hispanic. The church concluded that only 2 percent of the area population consisted of minorities with Lutheran training and, based on listenership surveys, 0.1 percent were minorities with classical music training. The church also said that for many job openings it did no outside recruiting, taking employees from the seminary, in exchange for which the stations operated rent-free.
The NAACP said the church's survey-based estimate of minorities with classical music expertise reinforced negative racial stereotypes. This was not a prudent argument to make, because the NAACP and the FCC were, in this case, in the business of stereotyping about "racial viewpoints."
The FCC said the Lutheran hiring preference was too broad when applied to those whose work involved no religious espousal on the air (e.g., receptionists, secretaries, engineers, business managers). But then, with exquisite illogic, the FCC asserted that its sole rationale for acting against "underrepresentation" of minorities at the stations was to foster "diverse" programming content. And it insisted that hiring for all positions at the stations _ receptionists, etc. _ is germane to such diversity.
The appeals court notes: "The FCC would thus have us believe that low-level employees manage to get their "racial viewpoint' on the air but lack the influence to convey their religious views."
Regarding the idea of "racial viewpoint," the court cites Justice Sandra Day O'Connor, dissenting in a Supreme Court case concerning broadcasting. O'Connor wondered "how one would define or measure a particular viewpoint that might be associated with race." That is a good question for the NAACP, which is so quick to accuse others of racial stereotypes.
The appeals court says the Supreme Court has "never explained why it was in the government's interest to encourage the notion that minorities have racially based views. We do not mean to suggest that race has no correlation with a person's tastes or opinions. We doubt, however, that the Constitution permits the government to take account of racially based differences, much less encourage them. One might well think such an approach antithetical to our democracy."
The court notes that the FCC never says what it means by "diverse programming" because any "content-based definition" would have serious First Amendment problems. Furthermore:
"It is at least understandable why the commission would seek station to station differences, but its purported goal of making a single station all things to all people makes no sense. It clashes with the reality of the radio market, where each station targets a particular segment. . . ."
The court says the "diverse programming" rationale for affirmative action does not serve a "compelling" public interest, such as ending racial discrimination, and therefore cannot survive the strict scrutiny that courts must give race-based government actions. If the Supreme Court agrees, the racial spoils system will have one fewer program.
Brick by brick, the ugly edifice of that system is being dismantled. The Clinton administration's defense of that system is militant inertia, coining the slogan "mend it, don't end it" and doing nothing else. But the itch of vocational self-interest impels the army of civil rights enforcers to continue to overreach, thereby provoking court rulings and public opinion adverse to racial preferences. The constitutional machinery of self-correction is working.
Washington Post Writers Group