No. 97-1116 (D.C. Cir. April 14, 1998)
Lutheran Church-Missouri Synod appeals the Federal Communication
Commission's finding that it transgressed equal employment opportunity
regulations through the use of religious hiring preferences and
inadequate minority recruiting. The Church argues that the Commission
has violated both its religious freedoms and the equal protection
component of the Fifth Amendment and that the Commission unreasonably
imposed a $25,000 lack of candor forfeiture. We reverse and remand
in part.
The Church argues that under Adarand Constructors, Inc. v. Pena,
515 U.S. 200 (1995), the Commission's use of racial classifications
provokes strict scrutiny, a standard the EEO program cannot survive.
The FCC has identified "diversity of programming" as the
interest behind its EEO regulations.
The Commission never defines exactly what it means by "diverse
programming." (Any real content-based definition of the term
may well give rise to enormous tensions with the First Amendment.
Compare Metro Broadcasting, 497 U.S. at 567-68 (opinion of the Court)
with id. at 616 (O'Connor, J., dissenting)). The government's formulation
of the interest seems too abstract to be meaningful.
Metro Broadcasting held only that the diversity interest was "important."
We do not think diversity can be elevated to the "compelling"
level, particularly when the Court has given every indication of
wanting to cut back Metro Broadcasting.
In Metro Broadcasting, four Justices (who were subsequently in
the Adarand majority) argued that the government's desire to encourage
broadcast content that reflected a racial view was at odds with
the Equal Protection Clause. Even the majority in Metro Broadcasting
who thought the government's interest "important" must
have concluded implicitly that it was not "compelling";
otherwise, it is unlikely that the majority would have adopted a
wholly new equal protection standard to decide the case as it did.
After carefully analyzing Metro Broadcasting 's opinions and considering
the impact of Adarand, it is impossible to conclude that the government's
interest, no matter how articulated, is a compelling one.
Even assuming that the Commission's interest were compelling, its
EEO regulations are quite obviously not narrowly tailored.
The Commission reprimanded the Church for preferring Lutheran secretaries,
receptionists, business managers, and engineers precisely because
it found these positions not "connected to the espousal of
religious philosophy over the air." Yet it has defended its
affirmative action rules on the ground that minority employees bring
diversity to the airwaves. 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.
That contradiction makes a mockery out of the Commission's contention
that its EEO program requirements are designed for broadcast diversity
purposes.
*Footnotes have been omitted
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