FCC's EEO Regulations Unconstitutional: Excerpts from Lutheran Church-Missouri Synod v. FCC
 

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

   

2001 The Federalist Society