Walton v. Nashville Arkansas Special School District No. 1 Brief for Appellant

    SCHEDULED FOR ORAL ARGUMENT JANUARY 12, 1998 ' a! i 1 n1 i /

UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 97-1116
Consolidated with No. 97-1115

THE LUTHERAN CHURCH - MISSOURI SYNOD,

FEDERAL COMMUNICATIONS COMMISSION,

On Appeal from the Federal Communications Commission

b r ie f  f o r  a p p e l l a n t
THE LUTHERAN CHURCH - MISSOURI SYNOD

In the

Appellant,

v.

Appellee.

Of Counsel:

Leonard J. Pranschke, Esq. 
PRANSCHKE & HOLDERLE 
1611 Des Peres Road 
Suite 300
St. Louis, Missouri 63131-1850 
(314) 965-6455

Richard R. Zaragoza 
Kathryn R. Schmeltzer 
Barry H. Gottfried 
Scott R. Flick
FISHER WAYLAND COOPER 
LEADER & ZARAGOZA L.L.P.
2001 Pennsylvania Ave., N.W., Suite 400 
Washington, D.C. 20006-1851 
(202) 659-3494

Gene C. Schaerr 
Nathan A. Forrester
SIDLEY & AUSTIN
1722 Eye Street, N.W. Attorneys for Appellant 

The Lutheran Church-Missouri SynodWashington. D.C. 20006 
(202) 736-8000

Dated: September 8, 1997



SCHEDULED FOR ORAL ARGUMENT JANUARY 12.1998

In the
UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 97-1116
Consolidated With No 97-1115

THE LUTHERAN CHURCH - MISSOURI SYNOD.

Appellant.

v.

FEDERAL COMMUNICATIONS COMMISSION.

Appellee.

On Appeal From the Federal Communications Commission

BRIEF FOR APPELLANT,
THE LUTHERAN CHURCH - MISSOURI SYNOD

CERTIFICATE AS TO PARTIES. RULINGS. AND RELATED CASES

The Lutheran Church-Missouri Synod (the "Church"), the appellant in Case No. 97- 

1116. pursuant to Rule 28(a)(l) of this Court, hereby submits this certificate of counsel as to 

parties, rulings and related cases:

A. PARTIES AND AMICI

1. The following are all parties who have appeared before the Federal 

Communications Commission in the previous phases of this proceeding. MM Docket No. 94-10: 

• The Lutheran Church-Missouri Synod:



Mass Media Bureau of the Federal Communications Commission: and 
Missouri State Conference of Branches of the NAACP. St. Louis Branch of 
the NAACP. and St. Louis Countv Branch of the NAACP.

The Church certifies that the following are all persons who are parties, intervenors or amici 

in the consolidated cases in this Court:

• The Lutheran Church-Missouri Synod;
• Office of the General Counsel. Federal Communications Commission;
• Missouri State Conference of Branches of the NAACP. St. Louis Branch of 

the NAACP. and St. Louis County Branch of the NAACP;
• American Center for Law and Justice (amicus on behalf of the Church);
• Center for Individual Rights (amicus on behalf of the Church): and
• National Religious Broadcasters (amicus on behalf of the Church).

2. The Church has the following affiliates (as defined in Rule 26.1(a) of the Court) 

which have issued debt securities to the public:

• Lutheran Church Extension Fund - Missouri Synod;
• Califomia-Nevada-Hawaii District Church Extension Fund:
• The Central Illinois District Church Extension Fund:
• The Church Extension Board of the Michigan District of The Lutheran 

Church - Missouri-Svnod:
• The Ohio District Lutheran Church Extension Fund. Inc.; and
• The Church Extension Funds of the following entities:

* Iowa District East of The Lutheran Church - Missouri Synod;
* Iowa District West of The Lutheran Church - Missouri Synod;
,  South Dakota District of The Lutheran Church - Missouri Synod;
* Southern District of The Lutheran Church - Missouri Synod; and 
, Texas District of The Lutheran Church - Missouri Synod.

The general nature and purpose of all of these Church extension funds is to lend funds to

congregations of the Church and to other eligible synodical borrowers. Loans are made for site

acquisition, construction and renovation of facilities for worship, education and other purposes that

serve to further the religious, educational and charitable purposes of the Church. Funds for the

loans are obtained by the regular issuance of general obligation notes by the above-listed entities.



The notes are secured and are issued to Church congregations, individual members of the Church, 

and to other synodical investors.

B. RULINGS UNDER REVIEW

The ruling under review in this case is The Lutheran Church/Missouri Svnod 

(Memorandum Opinion and Order). 12 FCC Red 2152 (1997). released January 31.1997.

C. RELATED CASES

The case on review has not previously been before this Court or any other court. The 

Church is unaware of any other related cases currently pending in this Court or in any other court 

other than the consolidated case. Missouri State Conference of Branches of the NAACP. Case No. 

1115.

Respectfully Submitted.

Barry H. Gottfried 
Scon R. Flick
FISHER WAYLAND COOPER LEADER 

& ZARAGOZA L.L.P.
2001 Pennsylvania Ave.. N.W.. Suite 400 
Washington. D.C. 20006-1851 
(202) 659-3494

Attorneys for Appellant,
The Lutheran Church -Missouri Synod

Dated: September 8. 1997



I A D L L  U f  L U l ' l  1 1 a

TABLE OF AUTHORITIES...................................................................................................... iii

STATEMENT OF JURISDICTION..............................................................................................2

STATEMENT OF THE ISSUES........................   2

STATEMENT OF THE C A SE ......................................................................................................3

A. The Commission’s Decision ..................................................................................3

B. The Origin of the Broadcast EEO Rule and the FCC's
King’s Garden Ruling ............................................................................................4

C. The Church and Its Stations.................................................................................. 9

D. The Petition to Deny. Hearing Designation Order and Hearing .......................... 10

E. The Equal Employment Opportunity Issues ........................................................ 13

F. The Misrepresentation/Lack of Candor Issue ...................................................... 17

SUMMARY OF ARGUMENT....................................................................................................18

ARGUMENT............................................................................................................................... 20

I. By Second-Guessing the Church's Judgment as to Which Jobs at the 
Radio Stations Are Important to its Religious Mission, the FCC Violates
Both the Religious Freedom Restoration Act and the First Amendment ........................21

A. The MO&O violates RFRA..................................................................................22

B. The MO&O also violates the Free Exercise Clause ............................................28

C. The MO&O also violates the Establishment C lause............................................31

II. By Forbidding the Church to Use a Religious Criterion In Hiring 
Personnel for Certain Positions at the Radio Stations, the FCC 
Discriminates Against Religious Broadcasters In Violation of Both
the Free Speech and Free Exercise Clauses of the First Amendment................ ............32

III. The FCC’s Application of Its EEO Rule to The Church Violates
the Equal Protection Clause of the Fifth Amendment.................................................... 35

-  i  -



IV. The FCC Acted Arbitrarily and Capriciously. And Therefore 
Unlawfully, In Applying Its King’s Garden Ruling to the Church
Without Adequately Examining the Ruling's Underlying Prem ises................................. 38

V. The FCC Acted Arbitrarily and Capriciously. And Thus Unlawfully.
In Concluding that the Church Lacked Candor Based on a Legal
Argument o f Its Counsel ...........................................................................................................40

RELIEF SOUGHT AND CONCLUSION ......................................................................................... 43

STATUTORY ADDENDUM ..................................................................................  45

- ii -



TABLE UK AUTHORITIES

CASES

* Adarand Constructors. Inc, v. Pena. 115 S.Ct. 2097 ('1995') ..................................... 35.37

* Rechtel v. FCC. 10 F.3d 875 (D.C. Cir. 1993) ..................................................  21. 39. 40

Bilingual Bicultural Coalition of Mass Media. Inc, v. FCC.
595 F.2d621(D.C. Cir. 1978) ........................................................................................  38

Calleio v. Resolution Trust Corp.. 17 F.3d 1497 (D.C. Cir. 1994)............................  20. 21

Cantwell v. Connecticut. 310 U.S. 296 (19401 ................................................................30

* Church of the Lukumi Babalu Ave. Inc, v. Citv of Hialeah. 508 U.S. 520 (19931......... 34

Citv of Boeme v. P.F. Flores. 117 S.Ct. 2157 H 997)......................................................27

* Corporation of the Presiding Bishop of the Church of Jesus Christ of
Latter-Dav Saints v. Amos. 483 U.S. 327 (1987) .............. ....................................passim

FF.OC y. Catholic Uniy. of America. 83 F.3d 455 (D.C. Cir. 1996) . . . .  22. 28. 29. 31. 32

Employment Div.. Dep't of Human Resources of Oregon y. Smith.
494 U.S. 872, reh'g denied. 496 U.S. 913 (1990)..................................  22. 28. 29. 30. 33

Everson v. Board of Educ. of Ewing. 330 U.S. 1. reh'g denied.
330 U.S. 855 (1947)........................................................................................................ 34

FCC v. League of Women Voters of California. 468 U.S. 364 (1984)..........................  30

Florida State Conference of Branches of the NAACP v. FCC. 24 F.3d 271
(D.C. Cir. 1994)....................................... ...................................................................... 42

Fowler v. Rhode Island. 345 U.S. 67 (1953)..................................................................  23

Hopwood v. State of Texas. 78 F.3d 932 (5th Cir.). reh'g denied.
84 F.3d 720. cert, denied. 116 S.Ct. 2581 (1996) ................................................ -..25.37

Hsu v. Roslvn Union Free Sch. Dist. No. 3. 85 F.3d 839 (2d Cir.).
cert, denied. 117 S.Ct. 608 (1996)..................................................................................  31

* Cases and materials marked with an asterisk are those principally relied upon.

- iii -



nearon v. si. nicnoias lainearai or ine Russian urtnoaox inurch in 
North America. 344 U.S. 94 (1952).................................................... 29

*

King's Garden. Inc, v. FCC. 498 F.2d 51 (1974) ......................................

Lamb's Chapel v. Center Moriches Sch. Dist.. 113 S. Ct. 2141 (1993)----

Lemon v. Kurtzman. 403 U.S. 602, reh'p denied. 404 U.S. 876 (1971) . . .

Little v. Wuerl. 929 F.2d 944 (3d Cir. 1991) ............................................

Mack v. O’Leary. 80 F.3d 1175 (7th Cir. 1996), reh'g denied.
1997 U.S. App. LEXIS 540 (January 8. 1997) ..........................................

Melodv Music. Inc, v. FCC. 345 F.2d 730 (D.C. Cir. 1965)......................

Miller v. Johnson. 115 S.Ct. 2475 (1995)..................................................

NAACP v. Federal Power Comm'n. 425 U.S. 662 (19761 ........................

National Org. for Women v. FCC. 555 F.2d 1002 (D.C. Cir. 1977)..........

NLRB v. Catholic Bishop of Chicago. 440 U.S. 490 (1979)........................

Porter v. Califano. 592 F.2d 770 (5th Cir. 1979)..........................................

Presbvterian Church v. Marv Elizabeth Blue Hull Presbyterian Church.
393 U.S. 440 (1969)......................................................................................

Rayburn v. General Conference of Seyenth-Dav Adventists. 772 F.2d 1164 
(4th Cir. 19851. cert, denied. 478 U.S. 1020 (1986))...................................

passim

. . . .  34

. . . 31 

29.32

.. .28 

. . .43

37 

. 5

38 

32 

20

23

32

Rosenberger v. Rector and Visitors of Univ. of Virginia..
115 S.Ct. 2510 (1995) ..............................................................................................  33.34

Sable Communications of California Inc. v. FCC. 492 U.S. 115 U989) ......................  34

Texas v. Johnson. 491 U.S. 397 (1989)..........................................................................  35

Thomas v. Review Bd. of the Ind. Employment Sec. Div.. 450 U.S. 707 (1981)..........  23

Turner Broadcasting System. Inc, v. FCC. 114 S. Ct. 2445, reh'g denied.
512 U.S. 1278 (1994)................................................................................................  33, 34

* Cases and materials marked with an asterisk are those principally relied upon.

- iv -



whw Enterprises, me. v. H i . O i i-.4d l u j  (D.c. Ur. 1985) .................................. 40

Wisconsin v. Yoder. 406 U.S. 205 (1972)......................................................................  30

Young v. Crystal Evangelical Free Church. 82 F.3d 1407 (8th Cir.).
reh'g denied. 89 F.3d 494 (1996)..............................................................................  21. 28

FCC CASES

Abacus Broadcasting Corp.. 8 FCC Red 5110 (Rev. Bd. 1993) ..................................... 40

Character Policy Statement. 102 F.C.C. 2d 1179 (1986)................................................  40

Discriminatory Employment Practices bv King's Garden. Inc..
34 F.C.C. 2d 937 (1972) ........................................................................................  6.7.38

Eagle Radio. Inc.. 9 FCC Red 836 (1994), recon, denied. FCC 95-434
(released January' 19, 1996)............................................................................................  11

Fox River Broadcasting. Inc.. 93 F.C.C. 2d 127 H983) ................................................  40

* Fox Television Stations. Inc.. 10 FCC Red 8452 (1995). recon, denied.
3 CR 526 (1996)............................................................................................17. 40. 42. 43

King's Garden. Inc.. 38 F.C.C. 2d 337 (1972)..............................................................  3. 7

National Religious Broadcasters. Inc.. 43 F.C.C. 2d 451 (19731 .............................. 8.23

Nondiscrimination in Employment Practices. 60 F.C.C. 2d 226 (1976),
set aside on other grounds sub, nom.. Office of Communication of the
United Church of Christ v. FCC. 560 F.2d 529 (2d Cir. 1977)....................................  5. 6

Notice of Proposed Rule Making in Streamlining Broadcast EEO Rule
and Policies. 11 FCC Red 5154 (1996)........................................................................  5. 6

Nondiscrimination Employment Practices of Broadcast Licensees.
13 F.C.C. 2d 766(1968) ........................................................................................  4.5.36

Nondiscrimination Employment Practices of Broadcast Licensees.
18 F.C.C. 2d 240 (1969) .................................................................................................. 4

* Cases and materials marked with an asterisk are those principally relied upon.



* Rov M. Speer. 3 CR 363 (1996) .................................................................................... 42

Statement of Policy of Minority Ownership of Broadcasting Facilities.
68 F.C.C. 2d 979 (1978). as revised. 92 F.C.C. 2d 849 (1982)......................................  11

STATUTES

5 U.S.C. § 553(b) (1994)................................................................................................  39

5 U.S.C. § 706(1994) ..............................................................................................  20.21

42 U.S.C. §§ 2000 et sea. (1988 & Supp. V 1993)......................................................  4. 6

* 42 U.S.C. §§ 2000bb et seq. (Supp. V 1993)............................................................  20. 28

42 U.S.C. § 2000bb-l(b) (Supp. V. 1993)......................................................................  28

* 42 U.S.C. § 2000e-l (1972) ....................................................................................passim

47 U.S.C. § 402(b) (1988 & Supp. V 1993) .................................................................... 2

47 C.F.R. § 73.2080 (1996)....................................................................................  3, 5. 33

MISCELLANEOUS

Equal Employment Opportunity Act of 1972. Public Law 92-261. 86 Stat. 103 ............ 7

H.R. REP. No. 103-88. 103d Cong.. 1st Sess. 9 (1993) ................................................  28

S. REP No. 103-111. 103d Cong.. 1st Sess. 13-14 (1993). reprinted in
1993 U.S.C.C.A.N. 1892 . . . .  T...................................................................................... 28

United States Constitution, art. 1. § 8. cl. 18 .................................................................. 28

* United States Constitution, amend. I .........................................................................passim

* United States Constitution, amend. V .......................................................................passim

* Cases and materials marked with an asterisk are those principally relied upon.

vi -



SCHEDULED FOR ORAL ARGUMENT JANUARY 12, 1998

In the
UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 97-1116
Consolidated with No. 97-1115

THE LUTHERAN CHURCH - MISSOURI SYNOD,

Appellant,

v.

FEDERAL COMMUNICATIONS COMMISSION,

Appellee.

ON APPEAL FROM THE 
FEDERAL COMMUNICATIONS COMMISSION

BRIEF FOR APPELLANT,
THE LUTHERAN CHURCH - MISSOURI SYNOD



STATEMENT OF JURISDICTION

This Court has jurisdiction over this appeal by the Lutheran Church-Missouri Synod (the 

“Church”) pursuant to Section 402(b) of the Communications Act of 1934. as amended. 47 

U.S.C. § 402(b) (1988 & Supp. V 1993). The Church filed a timely appeal on March 3. 1997 

from the decision of the Federal Communications Commission (the “FCC" or the 

“Commission”), released on January 31. 1997. granting the Church's license renewal 

applications for radio stations KFUO(AM) and KFUO-FM. Clayton. Missouri (“KFUO" or the 

“Stations” when referred to jointly), but concluding that certain EEO related violations had 

occurred that warranted the imposition of EEO reporting requirements and assessing a $25,000 

forfeiture. The Lutheran Church/Missouri Svnod ('Memorandum Opinion and Orderl. 12 FCC Red 

2152 (1997) (the “MO&Q”V J.A.__ .

STATEMENT OF THE ISSUES

1. Did the MO&O violate the Religious Freedom Restoration Act and the Church's 

rights under the Free Exercise and Establishment Clauses of the First Amendment by arrogating 

to the Government the right to determine which job functions at the Church's Stations need 

religious hiring preferences?

2. Did the MO&O discriminate against religious broadcasters in violation of the Free 

Speech and Free Exercise Clauses of the First Amendment'?

3. Did the FCC's application of its affirmative action requirements to the Church 

violate the Fifth Amendment by prohibiting the Church from using religious preferences while 

requiring the Church to be conscious of race in its employment actions?

. i  .



4. Did the FCC act arbitrarily and capriciously in failing to reexamine the premises 

of its 25 year old ruling limiting the use of religious hiring preferences by religious 

organizations?

5. Was the MO&O arbitrary and capricious in holding that a forfeiture should be 

imposed on the Church because former counsel's use of the word “required" rather than 

“preferred’' in an argument allegedly “lacked candor”?

STATEMENT OF THE CASE

A. The Commission's Decision

In the MO&O. the FCC renewed the Church's licenses for KFUO. but concluded that the 

Church had violated the FCCs Equal Employment Opportunity (“EEO”) Rule. 47 C.F.R.

§ 73.2080 (1997) (the “EEO Rule"), imposed "EEO reporting" requirements, and assessed a 

$25,000 forfeiture for a purported lack of candor. The Commission found that KFUO had not 

engaged in any discrimination and that KFUO's statistical record of employment did not raise 

any inference of discrimination. MO&O r 17. KFUO had written antidiscrimination and 

affirmative action policies (ID !̂r  42-43) and had sought minority applicants and hired 

minorities by using a variety of religious and secular referral sources. ID 76. 79, 82. 88. 91, 

120. 126. 130. Nonetheless, the Commission ruled that there were EEO violations because the 

Church had given preferential hiring treatment to individuals with knowledge of Lutheran 

doctrine for positions at KFUO that the Government deemed were not reasonably connected with 

espousal of the Church's religious views over the air. thereby violating the FCCs ruling in 

King s Garden. Inc.. 38 F.C.C. 2d 339 (1972). aff d. King's Garden. Inc, v. FCC. 498 F.2d 51



H974) (“King’s Garden”!  MQ&Q T I9-14.

The Commission also concluded that the Church violated the FCC's affirmative action 

requirements for two and one-half years of the seven year license period because KFUO solicited 

the assistance of likely sources of minority referrals on an “irregular" basis and had not engaged 

in continual “self-evaluation” of the success of its minority recruitment policies as compared to 

the availability of minorities in the labor market. See MO&O 5, 29. In addition, the 

Commission fined the Church $25,000 for a purported “lack of candor" in a statement describing 

its recruiting policies embedded in a legal argument. MO&O ^21. The Church appeals from the 

FCC’s rulings that it violated any valid EEO requirement and that it lacked candor, from the 

EEO reporting requirements and from the forfeiture.

B. The Origin of the Broadcast EEO Rule and the FCC’s King's Garden Ruling 

In 1964. Congress delegated regulatory authority over discrimination in employment to 

the Equal Employment Opportunity Commission under Title VII of the Civil Rights Act of 1964, 

42 U.S.C. §§ 2000 et seq. 11988 & Supp. V 1993) (“Title VH’’). Four years later, the FCC 

adopted a Memorandum Opinion and Order and Notice of Proposed Rulemaking announcing that 

the National policy against discrimination embodied in Title VII is fully applicable to 

broadcasting. Nondiscrimination Employment Practices of Broadcast Licensees. 13 F.C.C. 2d 

766 (1968). The first EEO Rule was adopted in 1969. Nondiscrimination Employment Practices 

of Broadcast Licensees. 18 F.C.C. 2d 240 (1969).

The impetus for the Commission's action in 1968 was the “serious racial crisis” then 

confronting the Nation. Nondiscrimination Employment Practices of Broadcast Licensees. 13 

F.C.C. 2d at 774. The Commission reasoned, “we simply do not see how the Commission could

- 4 -



make the public interest finding as to a broadcast applicant who is deliberately pursuing or 

preparing to pursue a policy of discrimination -- of violating the National policy." 1 .̂ at 769.

The FCC did not mention “program diversity" as a justification until 1976. when it asserted that 

its EEO Rule served to ensure that licensees' programming “fairly reflects the tastes and 

viewpoints of minority groups." quoting dicta from a footnote in the Supreme Court's opinion in 

NAACP v. Federal Power Comm'n. 425 U.S. 662. 670 n.7 (1976); Nondiscrimination in 

Employment Practices (Broadcast). 60 F.C.C. 2d 226. 229 (1976), set aside on other grounds sub 

nom.. Office of Communication of the United Church of Christ v. FCC. 560 F.2d 529 (1977) 

(“Broadcast Discrimination"-).

Following further amendments, the FCC's current EEO Rule. 47 C.F.R. § 73.2080. 

provides in pertinent part: (a) “Equal opportunity in employment shall be afforded by all 

licensees . . .  of commercially or noncommercially operated AM. FM . . . broadcast stations .. . 

to all qualified persons, and no person shall be discriminated against in employment by such 

stations because of race, color, religion, national origin, or sex"; and (b) “Each broadcast station 

shall establish, maintain, and earn' out a positive continuing program of specific practices 

designed to ensure equal opportunity in even aspect of station employment policy and practice." 

47 C.F.R. § 73.2080 (a), (b) (1996).

Under this EEO Rule, the FCC requires any broadcast station that employs five or more 

full-time employees to develop a written "model'' EEO plan. The station must recruit candidates 

from minority groups for each job opening from a number of minority recruitment sources. 

Sanctions are levied for unsatisfactory efforts to recruit from minority referral sources or to 

advertise in minority publications. See Notice of Proposed Rule Making in Streamlining

- 5 -



Broadcast EEO Rule and Policies. 11 FCC Red 5154. 5160 (1996) (“Streamlining"). The

broadcaster must “recruit. . .  [so as to] enhance access by minorities and women to employment 

opportunities in broadcasting...  Icf at 5158.

The FCC subjects a station's EEO efforts to intensive scrutiny if it fails to meet certain 

“processing guidelines based on employment statistics." See Broadcasting Nondiscrimination. 

60 F.C.C. 2d at 236-39. Under the FCC's guidelines, stations with 11 or more full-time 

employees are subject to intensive scrutiny if the proportion of minority representation is not at 

least 50% of that of the “relevant” labor force for both overall and upper level job categories. 

Streamlining. 11 FCC Red at 5160.

The FCC's initial ruling concerning the bearing of its EEO Rule on religious 

organizations was made in response to a 1971 letter of complaint alleging that King's Garden. 

Inc. (“King's Garden”), a Christian religious organization and radio licensee, had discriminated 

against a prospective employee by asking whether he was a Christian. Discriminatory 

Employment Practices bv King's Garden. Inc.. 34 F.C.C. 2d 937 (1972). In response. King's 

Garden referred to Title VII. which at the time exempted religious corporations "with respect to 

the employment of individuals of a particular religion to perform work connected with the 

carrying on by such corporation . . . of its religious activities . . . ." 42 U.S.C. § 2000e-l (This 

amendment was codified as § 702 of Title VII. Pub. L. No. 92-261. 86 Stat. 103. 42 U.S.C. § 

2000e- 1(a) (1972). and is hereinafter referred to as "Section 702.”)

The Commission issued a letter ruling that King's Garden's hiring action discriminated 

on the basis of religion in violation of the FCC’s EEO Rule because the job at issue was not 

related to the licensee's religious mission. The Commission said: “In keeping with the

- 6 -



exemptions . . .  [in] the Civil Rights Act of 1964. the Commission believes that those persons 

hired to espouse a particular religious philosophy over the air should be exempt from the 

nondiscrimination rules.” Discriminatory Employment Practices bv King's Garden. Inc.. 34 

F.C.C. 2d at 938. In fact, however, the Commission's ruling was not “in keeping" with the Civil 

Rights Act of 1964 -- two months earlier, on March 24. 1972. the Equal Employment 

Opportunity Act of 1972 had been approved. Public Law 92-261. 86 Stat. 103, and had amended 

Title VII to permit religious discrimination by religious organizations in hiring any person "to 

perform work connected with its activities.” not just religious activities. 42 U.S.C. § 2000e-l 

(1972)4

King's Garden sought reconsideration, referring to the actual Section 702 that had been 

enacted shortly before the FCC's ruling, and filed a petition for rulemaking to amend the 

Commission's EEO Rule to exempt religious organizations consistent with Title VII. The 

Commission concluded that King's Garden was not relieved of its obligation to comply with the 

letter ruling because of the change in Title VII. but added that religious licensees' obligations 

would be changed if King's Garden's proposals were adopted in the rulemaking proceeding. The 

Commission promised to consider the petition for rulemaking at a later time. King's Garden. 38 

F.C.C. 2d at 337.

Section 702 provides:

The subchapter shall not apply . . .  to a religious corporation, 
association, educational institution, or society with respect to the 
employment of individuals of a particular religion to perform work 
connected with the carrying on by such corporation, association, 
educational institution, or society of its activities.

- 7 -



In February 1973, the National Religious Broadcasters requested a declaratory ruling as 

to the applicability of King's Garden to various employee categories. The Commission stated 

that writers and research assistants hired for the preparation of programs espousing a licensee's 

religious views and those hired to answer religious questions on a call-in program would be 

exempt from the nondiscrimination rules, but that announcers, as a general category, would not 

be exempt. Acknowledging that the area involved First Amendment rights, the Commission 

indicated that it preferred to have religious stations present specific factual settings before issuing 

rulings. National Religious Broadcasters. Inc.. 43 F.C.C. 2d 451.452 (1973) (“NRB").

In 1974, this Court rejected King's Garden's facial challenge to the FCCs refusal to 

exempt religious licensees from the FCC's strictures against religious discrimination. £ge King's 

Garden. 498 F.2d 51. Opining that Section 702 was “of very doubtful constitutionality.” the 

Court upheld the Commission's letter ruling providing for a limited religious exemption for 

religious organizations. However, the Court observed that “[t]he Commission has set itself the 

difficult task of drawing lines between the secular and religious aspects of the broadcasting 

operations of its sectarian licensees.” and cautioned that future application of King's Garden 

would require continuing judicial scrutiny. Id. at 61. The Court noted that King's Garden “had 

requested institution of rulemaking proceedings on the Commission's exemption policy" and 

held that the issue of application of the exemption ruling was not before it. isL at 53 n .l.*

King's Garden's May 1972 rulemaking was never docketed, much less concluded, according to

*■ Chief Judge Bazelon disagreed with the Court's decision that the FCC could impose
employment requirements in direct conflict with the standards established by Congress in 
Section 702. but joined in the decision because he believed Section 702 was 
unconstitutional and not binding on the FCC. King's Garden. 498 F.2d at 61.

- 8 -



the Commission’s records.

C. The Church and Its Stations

The 117-year history of the Church's work with African Americans demonstrates an 

aggressive attitude against racism and a longstanding commitment to outreach toward African 

Americans. II) t  36. For example, in 1953. the Church formed the Lutheran Human Relations 

Association of America to make efforts to eliminate segregation and discrimination, and in 1977 

the Church created the Commission on Black Ministry to expand the Church’s African American 

membership. H) 37. The Church has approximately 50.000 African American members (out 

of a total of 2.6 million) and has 86 African American pastors. H) 38. Since 1975. the national 

Church leadership has included an African American vice president. ID % 39.

The Church, either directly or through its Concordia Seminar}’, has owned and operated 

Station KFUO(AM) since 1924. and KFUO-FM since 1948. KFUO's personnel are employees 

of the Church. See Church Ex. 4. att. 6. The Stations both operate out of the same studios on the 

campus of the Church's Concordia Seminar}’ and share many support personnel. ID 7; Church 

Ex. 4. att. 6.

KFUO(AM). which operates noncommercial!} , has the distinction of being the world's 

oldest religious broadcast facility. It was the first daily station to air and continuously maintain a 

religious format. KFUO-FM is the only full-time classical music station in the St. Louis market. 

It broadcasts sacred as well as non-liturgical classical music and some religious programming.

ID c 7. The FM station operated noncommercial!} from its inception until March 1983. when 

the Church found it necessary to accept commercial advertising on the FM station because 

voluntary contributions and bequests, which had been the source of revenue for both Stations,

- 9 -



were insufficient. II) 1 17. In the Church's view, both Stations are dedicated to the task of 

carrying out in their way the Church's Great Commission from Christ — to preach the Gospel to 

every creature and to nurture and serve people in a variety of ways. ID 8.

KFUO has had a long and close relationship with Concordia Seminary. Seminary 

students and the Seminary itself contributed funds for the construction of KFUO(AM) and for its 

initial operation. The Seminary' has permitted KFUO to remain on its campus, first in St. Louis 

and later in Clayton. Missouri, on a rent-free basis. Seminary faculty members and students have 

performed as talent on KFUO and have worked as announcers on KFUO as part of a “work- 

study" program, usually on a part-time basis. ID Tfl[ 9-11.23-29. Through KFUO's operations, 

seminarians “were reminded of the importance of radio in their total ministry to the needs of the 

people in their community." ID ^ 26. KFUO has been “part of the campus family and part of a 

campus community." ID ^ 29.

The Church's KFUO had a spotless FCC record over a seventy year period. Neither the 

FCC nor its predecessor agency had ever cited KFUO for any violations of FCC rules or policies. 

ID % 18.

D. The Petition to Deny. Hearimz Designation Order and Hearing

On September 29. 1989. KFUO filed license renewal applications based on the license 

term beginning February' 1. 1983 and ending February 1. 1990 (the “License Term"). On 

January 2. 1990. the Missouri State Conference of Branches of the NAACP and various local 

NAACP branches (collectively, the “NAACP') filed a petition to deny the license renewals of 

several Missouri radio stations, including KFUO. Although KFUO showed minority employees 

during the two week payroll period reflected in each annual employment report for the License

- 10 -



Term except 1987 and 1988. the NAACP argued that the Church did not comply with the FCC's 

EEO Rule based on an analysis of the minority employees at KFUO shown on the annual reports 

as compared with the percentage of minorities in the St. Louis MSA labor force. Pet. to Deny 3.

Between 1990 and late 1992. the Commission's staff sent the Church several letters 

requesting recruitment and hiring data. In a response, the Church's then counsel. Arnold & 

Porter, explained that the Stations' formats “required" that nearly all upper-level positions be 

filled with persons with theological or classical music expertise or training. ID 1 152. The staff 

then asked the Church to explain what aspects of particular positions required theological 

training. MM Bur. Ex. 13 at 1.

On February 1. 1994, the Commission designated the Church's license renewal 

applications for an evidentiary hearing.2 The hearing designation order (“HDO’") faulted a legal 

argument made by counsel at Arnold & Porter based on the use of statistics concerning 

minorities with Lutheran training and knowledge of classical music because, in the 

Commission's view, the argument “appearjedj to evidence a preconceived notion about the

The same day. the Commission also announced several actions "reaffirming" its 
commitment to its EEO Rule, including the release of a number of orders imposing more 
substantial fines than had previously been imposed for alleged EEO violations. News 
Release #41580. See, e.g.. Eagle Radio. Inc.. 9 FCC Red 836 (1994), recon, denied. FCC 
95-434 (released January 19. 1996). However, only the Church's renewal applications, at 
the request of the NAACP. w'ere designated for hearing. The Church had two options: go 
to hearing or sell its Stations at a “fire sale" price to a minority group and avoid the 
hearing. The Commission will not allow a licensee whose licenses have been designated 
for hearing to sell its stations except under the FCC s “minority distress sale" policy 

\ which creates the opportunity for minority-controlled entities to purchase such stations at 
75% or less of fair market value. When there is such a sale, there is no hearing.
Statement of Policy of Minority Ownership of Broadcasting Facilities. 68 F.C.C. 2d 979 
(1978), as revised. 92 F.C.C. 2d 849 (1982).



suitability of minorities to perform certain jobs." The Commission alleged that “Lutheran 

training" and “classical music expertise" were "vague, unascertainable criteria" which “had a 

direct adverse impact on Blacks .. . HDO % 26. In addition, the HDO alleged that the 

Church's arrangement with Concordia Seminary to employ seminary students and their spouses, 

at KFUO violated the EEO Rule, hi

The Church's license renewals were designated for hearing to determine whether the 

Church had complied with the FCC's affirmative action requirements and to determine whether 

the Church had made misrepresentations of fact or lacked candor. The misrepresentation/lack of 

candor issue was designated primarily because there was a discrepancy in the Church's responses 

concerning the number of total hires (full and part-time) during the 12 months preceding the 

filing of the renewal applications. HDO ^ 27. Both the burden of proceeding and the burden of 

proof were placed upon the Church. HDO 334

During the evidentiary hearing. Church witnesses were questioned by the FCC's counsel 

concerning KFUO's employment practices and the reasons for hiring personnel who were 

familiar with the Church's teachings, including as follows:

Q. Let me call your attention to your Exhibit 4. p.7. There you 
indicated it was helpful for certain secretaries to be familiar 
with the Lutheran Church because part of their job was to 
contact pastors to enlist volunteers for share-a-thons. As 1 
understood your testimony yesterday, the secretary's 
principal role was in scheduling ministers for these share-a- 
thons and for other programs that the church had. Is that

At the NAACP's request and over opposition by both the Church and FCC trial staff, the 
Administrative Law Judge subsequently expanded the issue to determine whether the 
Church had engaged in discrimination. The Church had the burden of proving that it did 
not discriminate. MO&O of Mar. 25. 1994.



correct?

A. Certain secretaries, yes.

Q. Did the scheduling of these ministers require the secretaries 
to have familiarity with Lutheran doctrine?

A. It was helpful if they were familiar with the calendars of the 
Lutheran Church and the. and the biblical teachings of the 
Lutheran Church.

Q. Well, why if all they were doing was scheduling ministers 
or other Lutherans to appear on programs did they have to 
themselves have knowledge of the Lutheran calendar?
And —

A. Because the ministers that come to the radio station to 
speak or to do a Bible study or to appear on a worship 
program want to know what church day they'll be 
addressing, what part of the Bible they will be addressing 
and --

The Church's counsel objected that this inquiry raised constitutional concerns under the First 

Amendment. Tr. 734-737.

E. The Equal Employment Opportunity Issues

Based on the hearing record, the FCC Administrative Law Judge (“ALJ") found that the 

Church was and is committed to nondiscrimination and has had a long history of fighting racial 

discrimination and of continuous outreach toward African Americans. ID ^195. The ALJ 

found:

The findings establish^ that no individual was discriminated 
against by the Stations because of race, color, religion, national 
origin, or sex. There is not one scintilla of evidence in the record 
to indicate that any adverse discriminatory act ever occurred, or 
that any individual ever even made an allegation of racial or other 
discrimination regarding the Stations' employment practices.

- 13 -



m  H94.

On appeal, the Commission's Review Board affirmed the holding that the Church had not 

engaged in discrimination. Rev. Bd. Dec. fflf 14-17. Upon review, the Commission affirmed the 

holdings of the ALJ and the Review Board that the Church had not discriminated and the 

statistical record did not raise any inference of discrimination. MO&O 17.

The ALJ's Initial Decision also acknowledged that during the License Term. KFUO 

recruited for minorities in several ways, including through its existing minority employees and 

through Lutheran sources such as local parish networks and a magazine targeted to Church 

members, including 50,000 African Americans. ID Tflf 76. 79. 82, 88. 91. 120, 126. 130. Of 

KFUO's full-time hires, 58.1% were female and 16.3% w'ere minority. H) 1 68. During the 

License Term, the St. Louis MSA labor market included 43.2% females and 15.6% minorities.

ID ^ 12 n.9. Thus. KFUO hired at a rate of 104.5% of minority "parity.”

For the period from February 1. 1983 through August 3. 1987. the Judge concluded that 

the Church's overall affirmative action efforts were "flawed" but in substantial compliance with 

the Commission's EEO Rule. While acknowledging that KFUO used various recruiting 

techniques such as referrals from an African American employee, newspaper advertisements, the 

Broadcast Center in St. Louis and Lutheran sources, the Judge criticized the facts that the major 

source of African American employees during this period was one of the Stations' African 'N 

American employees and that referral sources specifically targeted to minorities had not been 

used for every vacancy. IQ 205. 209-10.

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The ALJ held that from August 3. 1987 through January 31. 1990. the Church's efforts

were inadequate to meet the Commission's newly revised EEO standards. The Judge reached this 

conclusion by holding, first, that the Church violated the ruling in King's Garden by giving 

preferential hiring treatment to individuals with knowledge of Lutheran doctrine, and to active 

members of Christian or Church congregations, for positions for which the Church believed such 

preferences were desirable to serve the Church's mission, in  Ifi! 200-204. The ALJ 

acknowledged that the Church believed that many of the job functions at its Stations require a 

knowledge of Lutheran doctrine and philosophies. H) 50. However, the Judge deemed that 

certain of the job functions for which KFUO had such a preference were not reasonably 

connected with the espousal of the Church's religious views and penalized the Church for using 

religious preferences for positions such as receptionist, secretary, engineer, and business 

manager.^ ID ^200-05.

In addition, the ALJ ruled that KFUO failed to implement a "consistent" or "systematic" 

EEO affirmative action program adequate to meet the FCC's standards, as revised effective 

August 1987. ID *1217. The Judge acknowledged that in the year prior to filing their renewal 

applications the Stations placed advertisements in the St. Louis Post Dispatch, sent letters to 10 

local universities and personnel agencies requesting minority and female referrals, and sought 

referrals from the Lutheran Employment Project of St. Louis, a clearinghouse run by various 

Lutheran churches for employment of minority group members. Indeed. KFUO hired a minority 

applicant through the Lutheran Employment Project. JD cr 88. 91. 120. 126. Nonetheless, the

- In fact, the Stations did not recruit for or hire an engineer during the License Term.
Church Ex. 4. att. 6.

- 15 -



ALJ ruled that the Church's efforts were too "irregular" (U) ^ 220) and that KFUO failed to 

evaluate its employment profile and success in attracting minority applicants and interviewees 

against minority availability in the MSA labor force, thereby violating the FCC's affirmative 

action requirements. ID fflj 220. 221. Based on these rulings, the ALJ granted the Church's 

license renewal applications for full license terms, but required the Church to file four detailed 

EEO reports to the FCC at six month intervals concerning the Church's affirmative action efforts 

for both full and part-time positions. ID ^ 282.

On appeal, the Review Board stated that it lacked authority to modify the holding in 

King's Garden, and thus did not rule on the Church's constitutional or statutory arguments. Rev. 

Bd. Dec. ]j 37. The Board affirmed the Judge's ruling that the Stations were not in substantial 

compliance with the Commission's EEO requirements during the latter part of the License Term, 

and imposed the same EEO conditions as the ALJ but changed the renewal grants to a shorter 

term ending January 1. 1997. one month prior to the next scheduled expiration date. Rev. Bd. 

Dec. Tj 14. 34.-

Upon review, the full Commission rejected the Church's First Amendment. Fifth 

Amendment and statutory challenges to the King's Garden decision, reaffirmed that ruling and 

applied it to the Church. The Commission emphasized that its EEO requirements are not 

founded on Title Vll and ”[t]he EEO rule is not intended to replicate federal and state 

antidiscrimination laws but rather to advance the Commission's unique program diversity-related

The Board Chairman appended "Additional Views" to the Decision in which he quoted 
various Biblical passages in suggesting that the parties should "settle their differences.” 
Rev. Bd. Dec. 8.

- 16-



mandate.” MO&O \  10. The Commission also affirmed the holding that the Church's
X--------

recruitment program was “inadequate” for the last portion of the License Term. Although the 

Commission modified the Review Board Decision by granting the Church full term license 

renewals, the Commission imposed annual EEO monitoring reports for three years covering all 

full-time and part-time hires. MO&O 1flj 27-29.

F. The Misrepresentation/Lack of Candor Issue

The ALJ found, based on the record evidence, that the discrepancy in the Church's 

filings concerning the total number of employees hired that had led to the misrepresentation issue 

was the result of an innocent misunderstanding and was not a misrepresentation. ID 224-229. 

However, the Judge held that the Church “lacked candor" by (a) using the word "required" rather 

than "preferred" in a legal argument advanced by counsel at Arnold & Porter concerning the 

need for classical music knowledge on the part of FM sales personnel; and (b) stating in its 

renewal applications that the Church "actively" sought minority and female referrals. ID 1fll 234. 

251. While noting that the Church's witnesses were credible and testified truthfully and that the 

misconduct was an aberration, the Judge imposed a S50.000 forfeiture for these two supposed 

incidents of “lack of candor." ID ^261.

The Review Board did not accept the ALJ's conclusion that the Church lacked candor by 

stating in a pleading that knowledge of classical music was a "requirement" for the position of 

FM salesperson. The Review Board stated that "because the critical word was embedded in and 

essential to a pre-conceived legal argument contrived by counsel, a laymen [s/c] may not have 

fully appreciated the significance of its use." Rev. Bd. Dec. ^ 27 (citing Fox Television 

Stations. Inc.. 10 FCC Red 8452. 8501 n.68 (1995), recon, denied. 3 CR 526 (1996) (“Fox

- 17-



Television”')'). However, the Board affirmed the ALJ's holding that the Church lacked candor in 

describing its recruitment efforts as "active" because it did not engage in recruitment efforts for 

all of its hiring vacancies. Rev. Bd. Dec. 21. Although the Board narrowed the ALJ's lack of 

candor ruling, it did not reduce the $50,000 forfeiture. Rev. Bd. Dec. 39.

The Commission overruled the Review Board in connection with both purported 

incidents of “lack of candor.” First, it held that the applicable statute of limitations barred any 

sanction for the Church's statement that it “actively” sought minorities and women. MO&O 

t  26. Second, the Commission resurrected the ALJ's finding that the Church “lacked candor" in 

using the word “require” despite the Review Board's conclusion that it was embedded in a legal 

argument suggested by counsel. MO&O c 22. The Commission's MO&O reduced the 

forfeiture for the one instance of “lack of candor" to $25,000. MO&O f  30.

SUMMARY OF ARGUMENT

In the MO&O. the FCC ruled that the Church violated the Commission's EEO Rule by 

giving preferential treatment to individuals with Lutheran knowledge for job positions that the 

Government deemed were not reasonably connected with espousal of the Church's religious 

views over the air. This ruling violates both the Religious Freedom Restoration Act and the Free 

Exercise Clause of the First Amendment by substantially burdening the Church's religiously 

motivated communicative conduct. The ruling burdens, for example, the Church's ability to 

define itself as a community, to assign its stafl with flexibility, and to train its seminarians on 

whose campus the Stations are located without the need for Government approval. The FCC 

cannot show that it has narrowly tailored its ruling and the burdens imposed on the Church to

- 18 -



serve any compelling governmental interest.

The FCC apparently bases its decision to limit the Church's discretion to prefer those 

with Lutheran knowledge, including minorities, on the desire to promote “programming 

diversity.” But even assuming for the sake of argument that this Court were to agree that this is a 

compelling interest, the FCC is wrong when it suggests that the only alternatives are either 

imposition of its EEO Rule or an absence of minority recruitment by religious organizations. 

Indeed, the record shows that KFUO sought out Lutheran minorities during the period at issue in 

this case. Thus, there is no inconsistency between the Church’s religious freedom expressed in 

its hiring practices at KFUO and the FCC's diversity goals. In fact, a broad religious exemption 

modeled on Section 702 of Title VII is more likely to increase programming diversity by 

permitting religious organizations to keep a unified sense of mission and thus to add a unique 

perspective to the programming universe.

The FCC's ruling also violates the Establishment Clause of the First Amendment by 

excessively entangling the Government in a continuing process of testing and evaluating 

religious matters. Moreover, the ruling discriminates against religious broadcasters on the basis 

of their viewpoints in violation of the Free Speech and Free Exercise Clauses of the First 

Amendment because it prohibits discrimination only on the basis of religious viewpoints and not 

on the basis of other viewpoints or categories of speech.

If it is the FCC's position that a religious exemption modeled on Section 702 is 

inconsistent with the premise of the Commission s EEO Rule, the FCC's application of its EEO 

Rule to the Church also violates the Equal Protection Clause of the Fifth Amendment. The FCC 

cannot show that there is a compelling state interest in refusing to allow the Church to prefer

- 19-



applicants with Lutheran knowledge while forcing the Church to be race conscious at every step 

in its employment decisions. In addition, the FCC's ruling is arbitrary and capricious because it 

applies the King's Garden “policy” limiting the right of religious organizations to prefer 

candidates with religious knowledge, adopted in a 1972 letter ruling, without reexamining the 

basic propositions undergirding the ruling.

The Commission cannot justify its “lack of candor" ruling and an associated forfeiture 

based on the word “required” rather than “preferred” in an argument framed by the Church's 

former counsel. Counsel believed that the argument was legitimate whether or not the Church 

had an absolute requirement. Thus, there was no motive to use the word “require" instead of 

“prefer" and no intent to deceive, the sine qua non of lack of candor under longstanding 

Commission precedent.

ARGUMENT

The Church's claims under the First and Fifth Amendments of the United States 

Constitution present questions of law that the Court reviews de novo. 5 U.S.C. § 706 (2)(B) 

(1994). Indeed,

[independent judicial judgment is especially appropriate in the 
First Amendment area. Judicial deference to agency fact-finding 
and decision-making is generally premised on the existence of 
agency expertise in a particular specialized or technical area. But 
in general, courts, not agencies, are expert on the First 
Amendment.

Porter v. Califano. 592 F.2d 770. 780 n.15 (5th Cir. 1979). The Court also reviews de novo, 

without deference to the FCC's interpretation, the Church's claims under the Religious Freedom 

Restoration Act. 42 U.S.C. §§ 2000bb. et seq. (Supp. V 1993) (“RFRA”); see Calleio v.

- 2 0 -



Resolution Trust Corp.. 17 F.3d 1497. 1501 n.4 (D.C. Cir. 1994). The subsidiary issues as to

whether the FCC’s actions “substantially burden" the Church, and whether the Government has a 

compelling reason for imposing these burdens, are also questions of law which the Court reviews 

de novo. Young v. Crystal Evangelical Free Church. 82 F.3d 1407. 1418-19 (8th Cir.). reh'g. 

denied. 89 F.3d 494 (1996) (“Young").

If the Court rejects the Church's constitutional challenges and its claim under RFRA. the 

Court reviews the Commission's decision applying the King's Garden ruling against the Church 

in order to determine whether continued application of that ruling was arbitrary and capricious. 

Bechtel v. FCC. 10 F.3d 875 (D.C. Cir. 1993) (“Bechtel H'T.

In reviewing the FCC's conclusion that the Church “lacked candor." and the 

Commission's imposition of a forfeiture imposed on that basis, the Court determines whether the 

the rulings were arbitrary and capricious. 5 U.S.C. § 706 (2)(A) (1994).

I. By Second-Guessing the Church’s Judgment as to Which Jobs at the
Radio Stations Are Important to its Religious Mission, the FCC Violates
Both the Religious Freedom Restoration Act and the First Amendment

The MO&O penalized the Church by ruling that it violated the EEO Rule and requiring 

EEO monitoring reports based on the FCC's conclusion that the Church “improperly" gave 

preferential hiring treatment to individuals with know ledge of Lutheran doctrine for job positions 

which the Commission deemed w ere "not reasonably connected with espousal of the Church's 

religious views" over-the-air. MO&O *!rcM4. The FCC's arrogation to itself of the Church's 

right to determine which job functions required religious qualifications in order to best serve the

Church's mission is unlawful under both RFRA and the First Amendment. First, the MO&O



allows -- indeed, requires — the FCC to second-guess the Church's judgments as to which jobs 

are important to its religious mission. It is well established that such second-guessing by a 

government agency is itself a substantial burden on religion. £se Corporation of the Presiding 

Bishop of the Church of Jesus Christ of Latter-Dav Saints v. Amos. 483 U.S. 327. 340-46 

(1987) ('“Amos”). The FCCs action is unlawful under R ^ A  because it is not narrowly tailored 

to further a compelling government interest, much less the least restrictive means of doing so. 

Second, the MO&O is the kind of government action that remains subject to "strict scrutiny" 

under the Free Exercise Clause, even after the Supreme Court's decision in Employment Div.. 

Dep't of Human Resources of Oregon v. Smith. 494 U.S. 872. reh'g denied. 496 U.S. 913 (1990) 

(“Smith”). The MO&O cannot survive strict scrutiny. Third, by causing excessive government 

entanglement in the Church's internal management, the MO&O violated the Establishment 

Clause of the FirsxAmendment. See EEOC v Catholic Univ. of America. 83 F.3d 455. 467 

(D.C. Cir. 1996) (“'Catholic University"-).

A. The MO&O violates RFRA

There can be no dispute that the FCCs MO&O imposes a substantial burden on the 

Church's religious practice. As noted already, evangelization and teaching of the Gospel are 

fundamental duties of the Lutheran faith. ID r 8. Operating a radio station is a very important 

means of achieving those goals, as is hiring station personnel who share those goals and have the 

requisite knowledge of Lutheran doctrine. The Church has explained, sincerely and in good 

faith, why it deems these personnel important to its ability to achieve its religious mission. The 

FCC may not. as a government entity, second-guess that explanation without injecting itself into 

the unconstitutional role of evaluating the correctness of a claimant's professed religious beliefs.



Thomas v. Review Bd. of the Indiana Employment Sec. Piv.. 450 U.S. 707. 713-16 (1981) 

(impermissible for courts to reject religious freedom claim by Jehovah's Witness because other 

Jehovah’s Witnesses did not share his sincere religious belief that working in a weapons factor} 

was wrong); Fowler v. Rhode Island. 345 U.S. 67. 70 (1953) (no business of courts to determine 

what are the legitimate practices of a particular religious group); see also Presbyterian Church \ . 

Marv Elizabeth Blue Hull Presbvterian Church. 393 U.S. 440. 450 (1969) (rejecting departure- 

from-doctrine standard for review of church property disputes because it ”require[d] the civil 

court to determine matters at the very core of a religion -- the interpretation of particular church 

doctrines and the importance of those doctrines to the religion”).

Yet. pursuant to its EEO policy, the FCC engages in precisely this sort of intrusive 

second-guessing. The Commission scrutinizes the specific duties of every job function to 

determine whether it agrees that particular positions should be exempt. The Commission refuses 

to exempt even announcers on religious stations as a general category. NRB. 43 F.C.C. 2d at 

452.

The FCC's second-guessing is a substantial burden on the Church's exercise of religion

because it necessarily affects the way the Church carries out its religious mission. As Justice

White, writing for the majority in Amos, put it:

[I]t is a significant burden on a religious organization to require it. on pain 
of substantial liability, to predict which of its activities a secular court will 
consider religious. The line is hardly a bright one. and an organization 
might understandably be concerned that a judge would not understand its 
religious tenets and sense of mission. Fear of potential liability might 
affect the way an organization carried out what it understood to be its 
religious mission.

Amos. 483 U.S. at 336 (citation omitted). Justice White's comments about courts and judges



apply with equal, if not greater, force to agencies and their staff. Similarly, in his concurrence in 

Amos. Justice Brennan prophesied that substantial burdens would result from agency second-

guessing of church decisions as to which personnel were important or “integral" to its religious 

mission:

[T]his prospect of government intrusion raises concern that a religious 
organization may be chilled in its free exercise activity. While a church 
may regard the conduct of certain functions as integral to its mission, a 
court may disagree. A religious organization therefore would have an 
incentive to characterize as religious only those activities about which 
there likely would be no dispute, even if it genuinely believed that 
religious commitment was important in performing other tasks as well. As 
a result, the community's process of self-definition would be shaped in 
part by the prospects of litigation.

Amos. 483 U.S. at 343-44 (Brennan. J.. concurring).

This case amply illustrates and substantiates the fears expressed in Amos. The FCC staff 

asked the Church to explain what aspects of particular positions required theological training. 

MM Bur. Ex. 13 at 1. Both FCC trial counsel and the ALJ engaged in constitutionally unsavory 

questioning of a Church witness about whether it was helpful for certain station personnel to 

have knowledge of the Lutheran calendar, an inquiry that delved into theological matters. Tr. 

734-37. The Church's counsel reported to the FCC that the invasive questioning had concrete 

effects on the Church's free exercise activities, causing the Church to discontinue its decades old 

on-air internship program for Seminary students for fear of inviting continuing government 

intrusion. MO&O 8 n.6. Under the FCCs ruling, religious organizations are forced to 

artificially compartmentalize their stations into religious and non-religious departments, thereby 

losing both the necessary flexibility to assign different functions to various employees in 

managing stations (an especially difficult loss for small stations such as KFUO). For example,



the FCC's ruling constricts the station employees qualified to assist with listener phone-in 

religious counseling conducted by a religious station in conjunction with one of its programs, 

thereby limiting the creativity' and diversity' of the station's programming. The ruling also limits 

the employees who are available to be effective fund raisers in the religious community. See Tr. 

500 (testimony about the need for Church employees to have Lutheran knowledge to help in 

fundraising). Such compartmentalization also prevents the Church from bringing seminarians 

into full or part-time entry level positions with an eye towards grooming them for positions in 

management.

The EEO monitoring reports imposed by the FCC in the MO&O will also burden the 

Church by requiring it to determine whether each position at KFUO is “related to the espousal of 

religious views over-the-air" and therefore exempt, to seek FCC approval of each such 

determination, and then to make work assignments at the small stations in accordance with the 

artificial distinction. The Church will also need to return to the FCC for approval every time 

there is a change in job descriptions to ensure that it is not penalized again. For all these reasons, 

the FCC's bald assertion in the MO&O that its application of a case-bv-case exemption does not 

"substantially burden" religious activity is untenable.

The MO&O is not narrowly tailored to serve a compelling government interest, much 

less the least restrictive alternative for achieving such an interest. To be sure, the FCC purports 

to enforce its EEO Rule in order to improve programming diversity. MO&O ^ 11. But even if 

such diversity were determined to constitute a compelling interest, but see Hopwood v. State of 

Texas. 78 F.3d 932. 944-48 (5th Cir.). reh'g denied. 84 F.3d 720, cert, denied. 116 S.Ct. 2581 

(1996). the FCC has not explained why restricting the hiring practices of religious broadcasters

-25  -



like the Church is narrowly tailored to serve this goal, much less do so in the least restrictive 

manner. If anything, the FCC's limitations on religious organizations are likely to have an 

opposite effect, for they prevent religious broadcasters from hiring personnel who fully share 

their sense of religious mission. The policy is thus likely to dilute the strength of each individual 

station's religious message, thereby encouraging homogeneity, rather than diversity, among 

religious owned stations across the frequency spectrum. Conversely, permitting religious 

broadcasters to hire personnel who share their religious outlooks is likely to increase 

programming diversity, by permitting them to keep a unified sense of organizational mission 

without fear of governmental interference, and thus to add a unique perspective to the 

programming universe. Amos. 483 U.S. at 342 (noting benefits of respecting autonomy of 

churches).

Nor can the FCC justify its MO&O as the least restrictive means of eliminating religious 

discrimination -- an interest the agency disclaims in any event. MO&O ^ 11. The primary piece 

of federal legislation that governs the problem of religious discrimination — Section 702 of Title 

VII — expressly allows religious institutions to hire only personnel who share its religious 

mission, no matter what the job position. Unlike the FCC’s policy . Section 702 is not limited to 

positions that Congress, the courts or an agenc> deem to be "essential'' to the employer's 

religious mission. In Amos, for instance — the case in which the Supreme Court upheld Section 

702 against Establishment Clause challenge -  the employee in question worked as a building 

engineer in a gymnasium owned by the Mormon Church, a position far less “essential'' to the 

Mormon Church's religious mission than are the positions of business manager and secretary of 

the radio stations in this case. If Congress deems the blanket exemption of Section 702 sufficient

- 2 6 -



to fulfill its compelling interest in eradicating religious discrimination, then the FCC is in no 

position to claim that its more intrusive EEO policy is the least restrictive means of achieving 

that same interest.

Most of all. the FCC cannot justify- its restrictions on the Church's hiring practices as the 

least restrictive means of eliminating racial discrimination or encouraging minority recruitment 

by the Church. The FCC did not find that the Church had ever discriminated on the basis of race. 

To the contrary , the ALJ praised the Church for its commitment to racial equality and for 

seeking to hire minority Lutheran employees throughout the License Term. 112 ^  36-65. 

Lutherans can belong to any racial or ethnic group. Thus, if greater minority representation were 

truly the FCC's aim. the FCC could simply ensure that the Church did not discriminate against 

minorities in admission to its membership, permitting it to hire minorities within its ranks, rather 

than restrict the Church's right to require that K.FUO personnel, of whatever race or ethnicity, be 

familiar with its doctrine and practices.

Under RFRA. which plainly applies to FCC decisions.: a government body may not

In Citv of Boeme v. P.F Flores. 117 S.Ct. 2157. (1997) (“City of Boeme''). the Supreme 
Court did hold that Congress lacked authority to promulgate RFRA under § 5 of the 
Fourteenth Amendment and hence that RFRA was unconstitutional as applied to state 
governments. The Court did not hold, however, that Congress had exceeded its 
constitutional powers in applying RFRA to federal agencies and to federal laws or 
rulings. The Court premised us ruling in Citv of Boeme on Congress's lack of authority 
to impose burdens upon the states and specifically to impose upon the states an 
interpretation of the Constitution contrary to the interpretation adopted by the Supreme 
Court. Id at 2164-67: see also id. at 2162 ("Congress relied on its Fourteenth 
Amendment enforcement power in enacting the most far reaching and substantial of 
RFRA's provisions, those which impose requirements on the States.”); isL at 2164 (“The 
design of the Amendment and the text of § 5 are inconsistent with the suggestion that 
Congress has the power to decree the substance of the Fourteenth Amendment's

(continued...)



“substantially burden" a person's exercise of religion even if the burden results from a rule of 

general applicability, unless that burden “(1) is in furtherance of a compelling government 

interest; and (2) is the least restrictive means of furthering that compelling governmental 

interest." 42 U.S.C. § 2000bb-l(b) (Supp. V 1993). For the reasons explained above, the FCC 

cannot satisfy either of these conditions. See Young. 82 F.3d at 1418-19 (rejecting the district 

court's order under RFRA because it "meaningfully curtail[ed] a religious practice of more than 

minimal significance in a way that [wa]s not merely incidental.’*); see also Mack v. O 'I.ean. 80 

F.3d 1175 (7th Cir. 1996). reh'g denied. 1997 U.S. App. LEXIS 540 (January 8. 1997) (under 

RFRA. adherents to a religion are substantially burdened w'hen forced to refrain from religiously 

motivated conduct).

B. The MO&O also violates the Free Exercise Clause

For similar reasons, the MO&O also violates the Free Exercise Clause. To be sure. Smith 

holds that strict scrutiny does not necessarily apply to all government action that substantially 

burdens religion. Smith. 494 U.S. at 883-87. But strict scrutiny docs apply here for at least two 

independent reasons.

First, the MO&O unquestionably interferes with the Church's management of its internal 

affairs. In Catholic Universin. this Court determined that Smith did not abrogate the

(...continued)
restrictions on States."). This reasoning does not extend to federal rulings such as the 
MO&O. Congress applied RFRA to the federal government pursuant to a different 
constitutional source -- its substantive Article 1 powers coupled with its broad authority 
under the Necessary and Proper Clause. U.S. Const., art. 1. cl. 18. $££ S. Rep. No. 103- 
111. 103d Cong.. 1st Sess. 13-14 (1993). reprinted in 1993 U.S.C.C.A.N. 1892. 1903; 
H.R. Rep. No. 103-88. 103d Cong.. 1 st Sess. 9 (1993). RFRA thus remains applicable to 
this case and requires reversal of the MO&O.

-28-



longstanding rule that any sort of government intrusion into a church's ministenal hiring 

decisions was subject to strict scrutiny. Sge Catholic. 83 F.3d at 460-63: accord KedrofT v St. 

Nicholas Cathedral of the Russian Orthodox Church in North America. 344 U.S. 94. 116 (1952) 

(the Free Exercise Clause protects the power of religious organizations “to decide for themselves, 

free from state interference, matters of church government as well as those of faith and 

doctrine.”) As this Court explained in Catholic University, "the burden on free exercise that is 

addressed by the ministerial exception is of a fundamentally different character from that at issue 

in Smith. . . . The ministerial exception is not invoked to protect the freedom of an individual to 

observe a particular command or practice of his church. Rather, it is designed to protect the 

freedom of the church to select those who will cam- out its religious mission.” Catholic 

University. 83 F.3d at 462. This Court ultimately decided that the University's decision to fire a 

nun who taught at the University was shielded from judicial review by the Free Exercise Clause. 

Accord Little v Wuerl. 929 F.2d 944 (3d Cir. 1991) (upholding a Catholic school's dismissal of 

a Protestant teacher, because a secular court should not second-guess the school's determination 

that the teacher was unfit to advance its mission).

Similarly, in Amos, the Supreme Court upheld the constitutionality of the Section 702 

exemption, while reserving the question of whether the exemption was required by the First 

Amendment. The Court specifically recognized the link between the Church's right of religious 

community protected by the First Amendment and the process of religious "self-definition" 

facilitated by the Church's autonomy in determining the job functions that need religious 

training:



For many individuals, religious activity derives meaning in large 
measure from participation in a larger religious communin’. Such 
a community represents an ongoing tradition of shared beliefs, an 
organic entity not reducible to a mere aggregation of individuals.
Determining that certain activities are in furtherance of an 
organization's religious mission, and that only those committed to 
that mission should conduct them, is thus a means by which a 
religious community defines itself. Solicitude for a church's 
ability to do so reflects that furtherance of the autonomy of 
religious organizations often furthers individual religious freedom 
as well.

Amos. 483 U.S. at 342 (citation omitted). Amos thus confirms what is clearly established in 

Catholic University, namely, that government action remains subject to strict scrutiny, even after 

Smith, if it interferes with a religious entity's management of its internal affairs.

Second, the MO&O's second-guessing of the Church's judgments burdens the Church's 

exercise of constitutional rights in addition to its rights under the Free Exercise Clause. This is 

thus a "hybrid situation" of the son discussed in Smith. In that discussion, the Supreme Coun 

made clear that the First Amendment still "bars application of a neutral, generally applicable law 

to religiously motivated action" that enjoys other constitutional protections, such as freedom of 

speech, in addition to freedom of religion. Smith. 494 I ’.S. at 881 (citing, inter alia. Cantwell v 

Connecticut. 310 L'.S. 296. 304-07 (1940)) (freedom of religion plus freedom of speech); 

Wisconsin v Yoder. 406 L’.S. 205 (1972) (freedom of religion plus freedom of parents to direct 

the education of their children).

The MO&O intrudes on a number of constitutional protections en joyed by the Church. 

The Church's operation of KFUO is communicative activity that is protected by the Free Speech 

Clause of the First Amendment. FCC v Leacue of Women Voters of California. 468 U.S. 364. 

378 (1984). By disrupting the Church's personnel decisions, the MO&O also interferes with the

- 3 0 -



Church's right to free association for expressive purposes, as well as its right nor to associate -  

both of which are implicit in the First Amendment. $££ Amos. 483 U.S. at 342; Hsu v. Rostvn 

Union Free Sch. Dist. No. 3. 85 F.3d 839. 858 (2d Cir.) cert, denied. 117 S.Ct. 608 (1996) 

(describing First Amendment right to free expressive association and right not to associate). All 

of these effects stem from the FCC's second-guessing of the Church's decisions regarding which 

jobs are important to the fulfillment of its religious mission.

Because the MO&O is subject to strict scrutiny under the Free Exercise Clause, and 

because the FCC cannot justify its decision under that standard, the FCC’s action is 

unconstitutional and should be vacated. This Court need not follow its 1974 decision in King's 

Garden which rejected an attack only to the facial constitutionality of the FCC's exemption, and 

in which this Court did not consider a challenge based on the burdens caused by the intrusive 

questioning and second-guessing of church decisions described in Amos and evidenced by this 

case.

C. The MO&O also violates the Establishment Clause

The FCC's process of second-guessing the Church's judgments also causes excessive 

governmental entanglement with religion and thus violates the Establishment Clause. See 

Catholic University 83 F.3d at 465-66; see also Lemon \ Kurtzman. 403 U.S. 602. 612-13. 

reh g denied. 404 U.S. 876 (1971) (establishing three-pan test for determining whether a law 

violates the Establishment Clause, including the requirement that it not foster an excessive 

government entanglement with religion).

As noted above, both FCC trial counsel and the AL.l engaged in questioning of a Church 

witness that delved into theological matters. Tr. 734-37. The "searching case-bv-case analysis”

-  31 -



of whether job positions at KFUO are sufficiently religious that occurred here -  and which 

Justice Brennan predicted would necessarily occur from a partial exemption — produces 

“excessive government entanglement.” Amos. 483 U.S. at 343-44; see also NLRB v. Catholic 

Bishon of Chicago. 440 U.S. at 490. 502 (1979) (noting that process of resolving NLRB charges 

raised Establishment Clause concerns because it "necessarily involve[d] inquiry into the good 

faith of the position asserted by the clergy-administrators and its relationship to the . . . religious 

mission.”).

Furthermore, the EEO reporting requirements imposed by the FCC will now force the 

Church to identify', explain and seek Government approval for every job function, or 

modification of such a function, that the Church believes warrants a religious exemption. This 

process of testing and evaluating religious matters in an effort to second-guess the Church's good 

faith judgments is precisely the sort of "protracted legal process [that] pit[s] church and state as 

adversary" that violates the Establishment Clause. Catholic University. 83 F.3d at 465. (quoting 

Ravbum v General Conference of Seventh-Dav Adventists. 772 F.2d 1164. 1171 (4th Cir. 1985) 

cert, denied. 478 U.S. 1020 (1986)); see also Little v Wuerl. 929 F.2d at 948-49 (asserting that a 

prohibition against religious discrimination on a parish's employment action would be suspect 

under the Establishment Clause).

II. By Forbidding the Church to Use a Religious Criterion In Hiring 
Personnel for Certain Positions at the Radio Stations, the FCC 
Discriminates Against Religious Broadcasters In Violation of Both 
the Free Speech and Free Exercise Clauses of the First Amendment

It is well settled that a government action that discriminates on the basis of the speaker's

viewpoint -- religious or otherwise -- is subject to the most exacting scrutiny under the First



Amendment. Turner Broadcasting Svstem. Inc, v. FCC. 114 S. Ct. 2445. 2458-59, reh'g denied.

512 U.S. 1278 (1994) (“Turner"): see Rosenberuer v. Rector and Visitors of Univ. of Virginia. 

115 S.Ct. 2510 (1995) (religious speech): see also Smith. 494 U.S. 872 (religious speech). In its 

MO&O. the FCC has unlawfully discriminated against the Church as a speaker. The Church, as 

the owner and operator of KFUO. is a speaker w-ith a unique viewpoint. For decades, it has 

sought, as an independent source of value-laden programming, to add to the diverse mix of 

programming choices serving the public. The FCCs ruling that the Church may not prefer 

recruits who have knowledge of Lutheran doctrine — for example may not prefer an African 

American Lutheran over an African American non-Lutheran -- constitutes a form of viewpoint 

discrimination which is unconstitutional under both the Free Speech and Free Exercise Clauses 

of the First Amendment.-

It is undisputed that the EEO Rule, to the extent it reaches matters other than immutable 

characteristics such as race, prohibits discrimination only on the basis of “religion" and not on 

the basis of other viewpoints or categories of speech. 47 C.F.R. § 73.2080(a) (1996). Assuming 

no pretext for racial or other unlawful discrimination is involved, does the FCC intend to also 

second guess those stations which choose to hire from among their recruits personnel (e.g.. a 

station manager, business manager or secretan ) who are knowledgeable or even enthusiastic 

about sports, news or rock-and-roll'1 Would the FCC penalize a station that broadcasts political 

talk shows and prefers to hire applicants w ho have some kind of political knowledge or interest? 

In short, within the realm of viewpoint, belief , or ideology, the FCC has chosen to discriminate

2 King's Garden did not address this constitutional challenge to the FCC's EEO Rule and is
therefore not controlling on the issues discussed here.

- 33 -



against only religious viewpoints, at least as to those positions at religious organizations that the 

Commission deems not reasonably connected with espousal of the Church's religious view over 

the air.

Because the FCCs EEO policy regulates broadcasters differently based on the nature of 

their viewpoint, the policy is a prime example of content-based regulation. As noted above, it is 

a staple feature of free speech jurisprudence that the government may not discriminate among 

speakers on the basis of the content of their speech, unless the government shows that the 

discrimination is the least restrictive means of fulfilling a compelling governmental interest. 

Turner. IM S. Ct. at 2458-59 (1994): Sable Communications of California Inc, v. FCC. 492 

U.S. 1 15. 126 (1989). The same rule applies, obviously, to discrimination against religious 

speech. Indeed, the Supreme Court has held that discrimination against religious speech in 

general is viewpoint discrimination, even if all religious views are treated the same. Rosenberger 

v. Rector and Visitors of Univ. of Virginia.. 115 S.Ct. 2510 (1995): Lamb's Chapel v. Center 

Moriches Sch. Dist.. 113 S. Ct. 2141 (1993). The FCC's discrimination in this case, therefore, is 

unquestionably subject to the compelling interesLieast restrictive alternative test. And for the 

reasons described in Section I. the FCC's MO&O cannot survive this strict scrutiny.

The discrimination against religious speech in the MO&O violates both the Free Exercise 

Clause and Establishment Clause of the First Amendment. Both of these Clauses subject any 

government discrimination against religion to the most exacting scrutiny. See, e.g.. Church of 

the Lukumi Babalu Ave. Inc, v. Cnv of Hialeah. 508 U.S. 520. 531-32 (1993) (Free Exercise 

Clause): Everson v. Board of Educ. of Ewing. 330 U.S. 1. 15-16, reh'y denied. 330 U.S. 855 

(1947) (Establishment Clause). As noted, the FCC singles out religious broadcasters for

- 34 -



treatment that it does not impose upon broadcasters who do not identify with a particular 

religious faith. The FCC's MO&O thus discnminates against religion and must withstand strict 

scrutiny for this reason as well. By the same analysis as in Section I. it does not.

III. The FCC’s Application of Its EEO Rule to The Church Violates
the Equal Protection Clause of the Fifth Amendment_________

If it is the FCC's position that a religious exemption modeled on Section 702 is 

inconsistent with the premise of the Commission's EEO Rule, the FCC's application of its EEO 

Rule to the Church then violates the Equal Protection Clause of the Fifth Amendment. Adarand 

Constructors. Inc, v. Pena. 115 S.Ct. 2097 (1995) (“Adarand"). The Church and K.FUO have 

demonstrated their commitment to nondiscrimination on the ground of race and gender. II)

*,r 36-37. The Church seeks members from all races and has its own affirmative action policy 

that applies to KFUO. ID cc 42-43. The Church believes that its own policies are not in any 

way inconsistent with the FCC's goal of ensuring “diversity" — there are many African American 

Lutherans (ID cr 38). and the Church's efforts to enlist individuals with knowledge of Lutheran 

doctrine includes efforts to enlist Lutheran minorities. The FCC's MO&O seems to hold, 

however, that the Church's religious preferences are inconsistent with the FCC's affirmative 

action requirements under its EEO Rule. Under these circumstances, the Church believes that 

the Court should consider the legality of those requirements. The Church must reject any 

attempt by the Government to impose on it specific employment steps that are based on racial 

classifications insofar as those steps impede its ability to use religious preferences in hiring. Cf. 

Texas v. Johnson. 491 U.S. 397. 418 (1989) ("It is not the State's ends, but its means, to which

we object.").



In Adarand. the Court held that under the Fifth Amendment the use of racial

classifications by the federal government must meet strict scrutiny, such classifications must 

serve a compelling governmental interest and must be narrowly tailored to further that interest. 

The FCC's application of its EEO Rule to the Church is not justified under this standard, 

particularly when weighed against the Church's First Amendment right to prefer applicants with 

knowledge of Lutheran doctrine. In rejecting this challenge, the FCC claimed that its EEO Rule 

and the MO&O “do not use racial classifications." do not require that any person be hired or be 

given a racial preference, and therefore do not result in a deprivation of any constitutional right 

on the basis of race. MO&O r 13. But the NAACP attacked the Church because its minority 

hiring was not at "panty" with the minority labor force (Pet. to Deny at 3) and the FCC required 

the Church to defend its record on the basis of this numerical showing.

Moreover, the FCC penalized the Church for failing to be race-conscious at every step in 

its hiring process for every vacancy during the period August 1987 through January 1990. IQ Ti 

220-22. The Church was faulted because it preferred applicants with knowledge of Lutheran 

doctrine, and accordingly used Lutheran referral sources lor applicants, rather than using referral 

sources that were “likely sources” of minorities. ID *ir 200-01.220. The Church was penalized 

because it failed to "self-assess” b\ keeping records of precisely how many minorities each 

referral source produced, how many minorities were in each applicant pool, how many minorities 

were interv iewed for each job. and how man\ minorities were hired as w-ell as for failing to 

compare the results of its analyses to the availability of minorities in the St. Louis MSA labor 

market. See Nondiscrimination Employment Practices of Broadcast Licensees. 13 F.C.C. 2d 766 

(1968). It is difficult to imagine a decision that would require the Church to be more race

- 36 -



conscious at even' step in its employment process. This is precisely the son of use of racial 

classifications that the Supreme Coun held in Adarand must be justified by a compelling state 

interest. The “central mandate" of the Equal Protection Clause is "racial neutrality in 

governmental decisionmaking." Miller v. Johnson. 115 S.Ct. 2475. 2482 (1995). "Laws 

classifying citizens on the basis of race cannot be upheld unless they are narrowly tailored to 

achieving a compelling state interest." kf

The FCC cannot show that there is a compelling state interest in refusing to allow the 

Church to prefer applicants with Lutheran knowledge and instead forcing the Church to be race 

conscious in all of its employment decisions. In these circumstances, the need to "promote 

programming diversity." does not constitute a compelling interest. See Hopwood \ . State of 

Tex.. 78 F.3d at 944-48. Moreover, for the reasons given above, the FCC's EEO requirements 

are not narrowly tailored to promote “program diversity " There is no reason that the EEO Rule 

could not be narrowly tailored to contain an exemption similar to Section 702 while still 

promoting "program diversity." The EEO Rule is also not narrowly tailored because it is not 

appropriately limited to last no longer than the supposed effects it is allegedly designed to 

eliminate. Adarand. 115 S.Ct. at 2117-18. In any case, the FCC has not shown that the EEO 

Rule, much less the Commission's refusal to exempt religious organizations from the 

prohibitions on religious discrimination. actualK leads to "programming diversity." Certainly 

the FCC has never established that its ruling requiring the Church to be race conscious is 

justified when weighed against the Church's First Amendment right to use religious job 

preferences.

- 37 -



IV. The FCC Acted Arbitrarily and Capriciously, And Therefore
Unlawfully, In Applying Its King’s Garden Ruling to the Church 
Without Adequately Examining the Ruling’s Underlying Premise

Between the early 1970's and the MO&O. the Commission never reexamined the

premises of its 1972 letter ruling that only persons hired to espouse a particular religious

philosophy over the air should be exempt from the religious nondiscrimination rules. See

Discriminatory Employment Practices bv King's Garden. Inc.. 34 F.C.C. 2d at 938. In the

MO&O. the Commission reaffirmed its King's Garden "policy" based on a naked allegation --

without anv evidentiary showing or support -- that its refusal to exempt religious organizations

from the prohibitions on religious discrimination fostered "diversity of programming." MO&O \

14.

The FCC does not. however, have an "undifferentiated mandate to enforce the 

antidiscrimination laws." Bilingual Bicultural Coalition of Mass Media. Inc, v. FCC. 595 F.2d 

621. 628 (D.C. Cir. 1978). Rather, in the Commission's own view, its role is confined to 

regulating employment practices only "to the extent those practices affect the obligation of the 

licensee to provide programming that ' fairly reflects the tastes and the viewpoints ot minority 

groups' and to the extent those practices raise questions about the character qualifications of the 

licensee." Id. (quoting National Ore for Women v FCC. 555 F.2d 1002. 1017 (D.C. Cir. 1977)) 

(citations omitted). The FCC has never established an evidentiary record that shows that its 

interference with the associational and religious educational liberties of religious organizations 

through its King's Garden ruling somehow leads to "programming diversity.' This sort of 

adherence to an old ruling without any show ing by the Commission that the premises of that 

ruling are still valid is precisely the practice that this Court rejected as arbitrary and capricious in

-  38 -



Bechtel II. and which the Court should reject again here. Because policy statements are exempt 

from the Administrative Procedure Act’s notice-and-comment requirements (5 U.S.C. § 553(b) 

(1994)). “the agency must always stand ready 'to hear new argument’ and to ‘reexamine the 

basic propositions' undergirding the policy.’’ Bechtel II. 10 F.3d at 873.

The Commission's continued use of the King’s Garden case to circumscribe the rights of 

religious broadcasters cannot be reconciled with important changes in the law. and the 

Commission has long been duty-bound to reexamine the foundation for its ruling in King's 

Garden. Since 1972. the King's Garden ruling has been in tension, to say the least, with the 

Congressional policy set forth in Section 702 of Title VII. which permits religious entities to use 

religious knowledge as a qualification for all their activities. Even assuming that the 

Commission believed it was justified in not reviewing King's Garden in the early 1970's, it was 

incumbent upon the Commission to review King's Garden in light of the Supreme Court decision 

in Amos, which definitively held that Section 702 was constitutional. Indeed, as shown in 

Section I. supra, both the opinion for the Court and Justice Brennan's concurrence in Amos 

predicted that a case-by-case religious exemption would cause precisely the sorts of interference 

with religious practice and entanglement with religion that were graphically evidenced in this 

case. Vet the FCC for unexplained reasons nev er reevaluated its rule in the light of Amos. Its 

failure to do so requires reversal of the MO&() See Bechtel II. 10 F.3d at 886-87.

-  3 9 -



V. The FCC Acted Arbitrarily and Capriciously, And Thus Unlawfully,
In Concluding that the Church Lacked Candor Based on a Legal 
Argument of Its Counsel_____________________________________

The Commission's conclusion that the Church “lacked candor" is both false and arbitrary

and capricious. It cannot be sustained. This ruling and the consequent imposition of a $25,000

forfeiture stems from former counsel's argument in predesignation pleadings that knowledge of

classical music was a "requirement" for the position of salesperson at KFUO-FM. 12 154-

155. According to the ALJ. the Church "preferred" or had a "preference" rather than a

"requirement" for such knowledge and should have said so. 12 % 251.

There was no motive to use the word "required" rather than "preferred" in order to make

the argument. The lawyer who framed the Church's argument. Marcia Cranberg of Arnold &.

Porter, testified that she still believed the argument she had made was “legitimate." even if the

Church did not have an absolute requirement for classical music knowledge. 12 r 161.

Commission precedent holds that this makes it "highly unlikely" that a licensee has an intent to

deceive. Fox Television. 10 FCC Red at 8486-90. (affirming finding of lack of motive). It is

crucial that, under well established Commission case precedent, the sine (/ua non of lack of

candor is fraudulent intent. Abacus Broadcasting Corp. 8 FCC Red 5110. 5112 (Rev. Bd. 1993).

see also Character Policy Statement. 102 F.C.C' 2d 1179. 1 196 (1986) (subsequent history

omitted): Fox River Broadcasting. Inc.. 93 F.C.C. 2d 127. 129(1983). The Judge concluded that

all of the Church officials who appeared at the hearing testified truthfully. J2 c 259. The Church

had no intent to deceive and the Commission's judgment to the contrary is arbitrary, capricious

and at odds with both agency and judicial precedent. See WHW Enterprises. Inc v. FCC. 753

F.2d 1132 (D.C. Cir. 1985) (reversing FCC conclusion concerning candor).

- 4 0 -



As mentioned above. Ms. Cranberg testified during the hearing. The Judge accepted her 

testimony that in drafting the pleadings, "she used as synonyms the terms ‘knowledge of 

classical music.’ 'classical music training.’ ‘expertise in classical music.' and a ’working 

knowledge of classical music."' and that "all of the terms meant that persons hired for the 

relevant positions had to have a fairly significant knowledge of classical music." The Judge also 

found that counsel had testified that the statement that "knowledge of classical music was a 

'requirement' was probably an overstatement:" she "wish[ed]" she had used another word:" and 

she stated she had not intended to mislead the Commission by using the word "requirement." 

Counsel testified that she was using a method of analysis that she believed the FCC had 

specifically endorsed in an earlier ruling, and it was a method that Arnold &. Porter had 

previously used before the Commission on behalf of another classical music station in 

Philadelphia. ID cc 155-159. Moreover, the Judge found that the Church's Operations 

Manager. Dennis Stortz. testified that “the need for classical music knowledge for various 

positions, including salespersons, did not in any way affect the Stations' willingness to recruit 

individuals of any race” and "no minority applicant was ever rejected for any position at K.FUO- 

FM because he or she lacked knowledge of classical music.” ID r 149. As noted above, the 

Judge concluded that all of the Church officials who appeared at the hearing, including Mr. 

Stortz. testified truthfully. ID c 259

The Commission's Review Board was correct when it declined to accept the ALJ's 

conclusion that the use of the word "required" rather than "preferred" in an argument by counsel 

constituted a “lack of candor." Citing Fox Television, the Review Board determined that “the 

critical word was embedded in and essential to a pre-conceived legal argument contrived by

-41  -



counsel." and a layman might not fully appreciate the significance of the use of the term 

“"requirement" as opposed to the term "preferred." Rev. Bd. Dec. r  27. Indeed, it is not just a 

“layman" who might fail to appreciate the "significance" -- the Arnold & Porter lawyer who 

made the argument, hardly a layperson, testified that she believed the argument remained 

legitimate. ID 1i 161.

The terminology in pleadings prepared by counsel did not evidence a lack of candor.

The Church "was only submitting an explanation to meet the inference of discrimination that 

petitioners sought to draw from the statistics." Florida State Conference of Branches of the 

NAACP v. FCC. 24 F.3d 271. 274 (D.C. Cir. 1994) (citation omitted) (“Florida"). The word 

"preferred" could have been used to effectively make the same argument as the Church's counsel 

formulated using the word "required." ID c 161. As in Florida, there was no evidence of 

intentional discrimination by the Church, yet in contrast to Florida, the Commission commenced 

an evidentiary hearing against the Church.

The Commission's conclusion and associated forfeiture cannot be reconciled with its 

decisions in other cases. The Church did not know that the argument of counsel could have been 

viewed as lacking candor. In Fox Television, the Commission refused to conclude that Fox 

misrepresented facts or lacked candor concerning the extent of its alien ownership where Fox had 

relied on counsel, stating: "We do not think it appropriate to find a lack of candor where a 

licensee has not second guessed its own attorneys, as long as the advice rendered appears 

reasonable and is relied on in good faith. We do not wish to create an environment in which 

licensees are discouraged from seeking and following the advice of legal counsel." Fox

Television. 10 FCC Red at 8501 n.68. See also Rov M. Sneer. 3 CR 363. 382 (1996) (Silver



King’s characterizations of its activities did not raise an inference of misrepresentation or lack of 

candor). Both Fox Television and Speer involved sophisticated, large group owners of broadcast 

stations and the Commission resolved allegations of misrepresentation/lack of candor without 

even designating hearings. The Commission cannot distinguish the Church's statements from 

those in Fox Television and Speer, and its ruling of “lack of candor" by the Church must 

therefore be reversed as arbitrary and capricious. See Melodv Music. Inc, v. FCC. 345 F.2d 730 

(D.C. Cir. 1965) (similarly situated applicants must be treated similarly).

The Commission has certainly not pointed to any case justifying a finding of “lack of 

candor" or a S25.000 forfeiture based on a quibble about the use of one word rather than another 

in an argument advanced by counsel. The Church did not have any intent to deceive for the 

reasons stated by the Commission's Review Board. Accordingly, the FCC's lack of candor 

ruling must be reversed and the forfeiture vacated.

RELIEF SOUGHT AND CONCLUSION

For all the above reasons, the Court is respectfully requested to:

1. Hold that the FCC's application of its ruling in King's Garden to the Church 

violated the Constitution and RFRA. and reverse and vacate the FCC's ruling that the Church 

acted unlawfully in preferring applicants for employment on religious grounds:

2. Reverse and vacate the FCC's ruling that the Church's minority recruitment 

efforts for the period from August 3.1987 through ,ianuar> 31. 1990 violated the FCC's EEO 

Rule:

3. Reverse and vacate the EEO reporting requirements imposed by the FCC; and

- 43 -



4. Reverse and vacate the FCC's ruling that the Church lacked candor when its

counsel used the word “required" rather than “preferred" in a legal argument generated by 

counsel and the associated S25.000 forfeiture assessed against the Church.

Of Counsel:
Leonard J. Pranschke 
PRANSCHKE & HOLDERLE, L.C.
1611 Des Peres Road. Suite 300 
St. Louis. MO 63131-1850 
(314) 965-6455

Gene C. Schaerr 
Nathan A. Forrester 
SIDLEY & AUSTIN
1722 Eye Street. N.W.
Washington. D.C. 20006 
(202) 736-8000

Respectfully submitted.

Barry H. Gottfried 
Scott R. Flick
FISHER WAYLAND COOPER LEADER 
& ZARAGOZA L.L.P.

2001 Pennsylvania Ave.. N.W. Suite 400 
Washington. D.C. 20006-1851 
(202) 659-3494

Attorneys for Appellant 
The Lutheran Church-Missouri Synod

Dated: September 8. 1997

- 44 -



U.s. Constitution

A m e n d m e n t  I

Congress gball m ake no law  respecting an establishment of 

religion, or prohibiting the free exercise th ereo f: or abridging the 

freedom of speech, or of the press; or the right of the people 

peaceably to assemble, and to petition the Government for a redress 

of grievances.



I'.S. Constitution

A m e n d m e n t  V

No person shall be held to answer for a capital, or otherwise 
infam ous crime, unless on a presentment or indictment of a Grand 

Ju rjj except in cases arising in the land or naval forces, or in the 
M ilitia, when in actual service in time o f W ar or public danger: 
nor shall any person be subject for the same offence to be twice 

put in jeopardy of life  or lim b ; nor shall be compelled in am  

criminal case to be a w itness against him self, nor be deprived of 
life, liberty, or property, w ithout due process of law; nor shall 
private property be taken for  public use, without just compensation.



L'.S. Const. Article I, Section 8, Clause 18

To make all Laws which shall be necessary and proper for 

carrying into Execution the foregoing Powers and all other 

Powers vested by this Constitution in the Government of the 

United States, or in any Department or Officer thereof.



42 U.S.C. §§2000bb et aI.(Supp. V 1993)

CHAPTER 21H—RELIGIOUS FREEDOM 
RESTORATION

Ser
2000bb Congressional f indings and declara tion 

of purposes, 
ia i  F indings 
(bi Purposes.

2000bb-l. F re e  exercise of religion protected, 
ta i  In  general
lb '  Exception, 
tci Judic ia l  relief

2000bb-2. Definit ions.
2000bb-3. Applicabili ty

(ai In  general
< b ) R u le  of construct ion .
tci Religious belief unaffected.

2000bb-4 E stab l i sh m en t  clause unaffected.

Chapter R eferred to in Other Sections

This  c h a p te r  is re ferred  to in section 1988 of this  
title: tit le  5 section  504.

S 2000bb. Congressional findings and declaration of 
purposes

i ai  Findings
The Congress finds that—

(1) the framers of the Constitution, recog­
nizing free exercise of religion as an unaliena­
ble right, secured its protection in the First 
Amendment to the Constitution:

(2 laws "neutral" toward religion may 
burden religious exercise as surely as laws in­
tended to interfere with religious exercise:

<3' governments should not substantially 
burden religious exercise without compelling 
justification:

(4> in Employment Division v. Smith. 494 
U.S 872 (1990i the Supreme Court virtually 
eliminated the requirement that the govern­
ment justify buraens on religious exercise im­
posed bv laws neutral towara religion: and 

(5) the compelling interest test as set forth 
in prior Federal court rulings is a workable 
test for striking sensible balances between re­
ligious liberty and competing prior govern­
mental interests

i b ' P u rp o se *

The purposes of this chapter are—
(l i to restore the compelling interesMest as 

set forth m Sherbert v Vemer. 374 U.S 398 
(1963 and Wisconsin v Yoder. 406 U.S 205 
(1972' and to guarantee its application in all 
cases where free exercise of religion is sub 
staritially burdened: and 

<2' to provide a claim or defense to persons 
whose religious exercise is substantially bur­
dened by government.

.Pub. L. 103-141. 5 2. Nov 16. 1993. 107 Slat. 
1488.'

R eferences in T ext

This ch ap ter  reierred to in suDsec #0 1 was in the  
orig ins.  th is  Ac: m eaning  Puo L. 103-141 Nov 16
1993 l o t  S la t  1488 w hich  is classified principally  to 
this  chapter  For co m p le te  c lassif ication ol this Act to 
the  Code see Short  T it le  n ote  Deiow and Tables



U 2 L’.S.C. §§2000bb et al. (Supp. V 1993)

Short Titli
Section 1 of Pub. L . 103-141 provides t h a t '  • T h is  Ac: 

(enacting  this c h ap te r  an a  am ending  section 1988 of 
th is  t it le  ana  section 504 of T it le  5. G overnm en t  O rg a ­
nization and Emploveesl m av be cited as th e  R e li ­
gious FYeeoom R esto ra t ion  Act of 1993 '

S JOOtlbb— 1. Free exercise o f religion prelected

t a i  in  general

Government shall not substantially burden a 
person s exercise of religion even if the burden 
results from a rule of general applicability, 
except as provided in subsection (b) of this sec­
tion.
(bi Exception

Government may substantially burden a per­
son s exercise of religion only if it demonstrates 
that application of the burden to the person— 

G > is in furtherance of a compelling govern­
mental interest: and

(21 is the leas: restrictive means of further­
ing that compelling governmental interest.

(cl Jud ic ia l  relief

A person whose religious exercise has been 
burdened in violation of this section may assert 
that violation as a claim or defense m a judicial 
proceeding and obtain appropriate relief 
against z government. Standing to assert a 
claim or defense under this section shall be gov­
erned by the general rules of standing under ar­
ticle III of the Constitution
fPub. L 103-141. 5 3. Nov. 16. 1993. 107 Slat
1488.
ft 2000bb-3. Definitions

As used in this chapter—
G '• the term "government' includes a 

branch, aepariment. agency, instrumentality, 
and official tor other person acting under 
color of lawi of the United States, a State, or 
a subdivision of a State;

(2i the term "State" includes the District of 
Columbia, the Commonwealth of Puerto 
Rico, and each territory and possession of the 
United States:

(3) the term demonstrates" means meets 
the burdens of going forward with the evi­
dence and of persuasion, and 

<4) the term exercise of religion" means 
the exercise of religion under the First 
Amendment to the Constitution

(Pub. L 103-141. 5 5. Nov 16 1993 107 Stat
1489. )
§ 2000bb-3. A pplicability 

• a) In general

This chapter applies to all Federal and State 
lav  and the implementation of that law. 
whether statutory or otherwise, and whether 
adopted before or after November 16. 1993.
<bi Rule of construct ion

Federal statutory law adopted after Novem­
ber 16. 1993. is subject to this chapter unless 
such law explicitly excludes such application by 
reference to this chapter.

ic> Religious belief unaffected

Nothing in this chapter shall be construed to 
authorize any government tc burden anv reli­
gious belief.
(Pub. L. 103-141. 5 6 Not 16 1993 107 Stat 
1489.)
§ tiOOObb—1. Estab l ishm ent  clause unaffected

Nothing m this chapter shall be construed to 
affect, interpret, or in anv wav address that 
portion of the First Amendment prohibiting 
laws respecting the establishment of religion 
(referred to in this section as the "Establish­
ment Clause"). Granting government funding, 
benefits, or exemptions, to the extent permissi­
ble under the Establishment Clause, shall not 
constitute a violation of this chapter. As used m 
this section, the term "granting". used with re­
spect to government funding, benefits, or ex­
emptions. does not include the denial of govern­
ment funding, benefits, or exemptions.
(Pub. L. 103-141. 5 7. Not. 16. 1993. 107 Stat 
1489.)



42 C.S.C. §2000e-l (1988 & Supp. V 1993)

§2000e-l. Applicability to foreign and religious em ­
ploym ent

ta i Inapplicability or subchapter to certain aliens and 
em ployees of religious entities

This subchapter shall not apply to an em­
ployer with respect to the employment of aliens 
outside any State, or to a religious corporation, 
association, educational institution, or society 
uitn respect to the employment of individuals 
of a particular religion to perform work con­
nected with the carrying on by such corpora­
tion. association, educational institution, or so­
ciety of its activities.
• b ■ Com pliance with statute as violative o f foreign  

law
It shall not be unlawful under section 2000e-2 

or 2000e-3 of this title for an employer tor a 
corporation controlled by an employer), labor 
organization, employment agency, or joint 
laoor-management committee controlling ap­
prenticeship or other training or retraining (in­
cluding On-the-job training programs) to take 
any action otherwise prohibited by such sec­
tion. with respect to an employee in a work­
place in a foreign country if compliance with 
such section would cause such emplover (or 
suer, corporation), such organization, such 
agency, or such committee to violate the law of 
the foreign country in which suen workplace is 
located.
ic Contro l  of corpora t ion  inco rpora ted  in foreign 

c o u n tn
. 1 If an employer controls a corporation 

whose place of incorporation is a foreign coun­
try any practice prohibited by section 2000e-2 
or 2000e-3 of this title engaged in by such cor­
poration snail be presumed to oe engaged in by 
suer, empiover.

;2: Sections 2000e-2 and 2000e-3 of this title 
shall not apply with respect to the foreign oper­
ations of an employer that is a foreign person 
not controlled by an American employer.

>3 For purposes of this subsection, the deter­
mination of whetner an emplover controls a 
corporation shall be based on—

Ai the interrelation of operations.
■ B ) the common management.
■C' the centralized control oi labor rela­

tions. and
'Di tne common ownersmp or financial con­

trol.
-ne emplover and tne corporal ion

iAs amended Pub. L. 102-166. title I ‘ 109(b)(1). 
Not. 21. 1991. 105 Slat. 1077 •

Amendments

1991 — Pup. L 102-166 designated exis ting provisions 
as suost". iai  and added suosecs. id - and ic

Eftective D ate of 1991 amendment

A m endm ent  oy P ud L. 102-166 inappucaDle to con­
duct occurring oefore Not 21. 1991. see section 109(0  
of Puo  L. 102-166 set out as a note under  section 
2000e of th is  title



47 C.F.R. §73.2080 (1996)

{72L2080 Equal em ploym ent o p p o rtu ­
nities.

(a) General EEO policy. E qual oppor­
tu n i ty  in  em ploym ent sh a ll be afforded 
by a ll licensees or p e rm ittee s  of com ­
m erc ia lly  or noncom m ercia lly  oper­
a ted  AM. FM. TV. or in te rn a tio n a l 
b roadcast s ta tio n s  (as defined in  th is  
p a rt)  to  a ll qualified  persons, an d  no 
person sha ll be d isc rim in a ted  a g a in s t 
in  em ploym ent by such s ta t io n s  be­
cause of race, color, re lig ion , n a tio n a l 
o rig in , or sex.

(b) EEO program. Each b roadcast s ta ­
tio n  shall estab lish , m a in ta in , and 
ca rry  ou t a  positive co n tin u in g  pro­
g ram  of specific p rac tices designed to 
ensure  equal o p p o rtu n ity  in  every  as­
p ec t of s ta tio n  em ploym ent policy  and 
p rac tice . Under th e  te rm s of i ts  pro­
g ram . a  s ta tio n  shall:

(1) Define th e  re sp o n sib ility  of each 
level of m anagem ent to  ensu re  a posi­
tiv e  app lica tion  and vigorous en fo rce­
m e n t of i ts  policy of equal o p p o rtu n ity , 
an d  es tab lish  a  procedure to  review  and 
co n tro l m anageria l and superv iso ry  
perform ance:

(2) Inform  its  em ployees and recog­
nised em ployee o rgan izations of the 
positive equal em p loym en t oppor­
tu n i ty  policy and program  and en lis t 
th e ir  cooperation:

(3) C om m unicate i ts  equal em ploy­
m e n t o p p o rtun ity  policy and program  
and  Its  em ploym ent needs to  sources of 
qualified  ap p lican ts  w ith o u t reg a rd  to 
race , color, relig ion , n a tio n a l o rig in , or

sex. and so lic it th e ir  rec ru itm en t a s ­
s is tan ce  on a  con tin u in g  basis:

(4) C onduct a  con tinu ing  program  tc  
exclude a ll unlaw ful form s of prejudice 
o r  d isc rim in a tio n  based upon race, 
color, relig ion , n a tio n a l origin, or sex 
from  i ts  personnel policies and p rac­
tic e s  and  w ork ing  conditions: and

(5) C onduct a con tinu ing  review of 
job s tru c tu re  and em ploym ent p rac­
tic e s  an d  adopt positive rec ru itm en t, 
job design, and o th e r  m easures needed 
to  en su re  genuine eq u a lity  of oppor­
tu n i ty  to  p a r tic ip a te  fu lly  in  all orga­
n isa tio n a l un its , occupations, and lev­
els  of responsib ility .

(c) EEO program requirements. A 
b ro ad cast s ta tio n 's  equal em ploym ent 
o p p o rtu n ity  program  should reason­
ab ly  address itse lf  to  the specific areas 
s e t  fo rth  below, to  th e  e x ten t possible. 
and to  th e  e x ten t th a t  they  are  appro­
p ria te  in  te rm s of th e  s ta tio n 's  size, lo­
ca tio n . etc.:

(1) D issem inate its  equal opportun ity  
program  to  job ap p lican ts  and em ploy­
ees. F o r exam ple, th is  requirem ent 
m ay be m e t by:

(I) P o stin g  no tices in the  s ta tio n 's  of­
fice and o ther places of em ploym ent, 
in form ing  em ployees, and applican ts 
for em ploym ent, of th e ir  equal em ploy­
m e n t o p p o rtun ity  righ ts. Where i t  Is 
app rop ria te , such equal em ploym ent 
o p p o rtu n ity  no tices should be posted in 
languages o ther th a n  English:

(II) P lac ing  a notice in  bold type on 
th e  em ploym ent app lica tion  inform ing 
prospective em ployees th a t  d iscrim ina­
tio n  because of race, color, religion, 
n a tio n a l origin, or sex is prohibited:

f i l l ) S eeking  the cooperation  of labor 
unions, if represen ted  a t  the s ta tio n , in 
th e  im p lem en ta tion  of its  EEO pro­
gram  and the inclusion of non-dls- 
c n m ln a tlo n  provisions in union con­
trac ts :

(lv) U tiliz ing  m edia for recru itm en t 
purposes in a m anner th a t  will contain 
no ind ication , e ith e r  explicit or im­
p lic it. of a preference for one sex over 
an o th e r  and th a t  can be reasonably ex­
pected to  reach m in o rities  and women.

(3) Use m in o rity  organizations, orga­
n iza tions for women, media, edu­
ca tio n a l In s titu tio n s , and o ther poten­
t ia l  sources of m ino rity  and female ap­
p lican ts. to  supply referra ls whenever



47 C.F.R. §73.2080 (1996)

M
-^>1

A

job vacancies a re  ava ilab le  In Its  oper­
a tio n . F or exam ple, th is  req u irem en t 
m ay be m e t by: _ .

(I) P lac ing  em p loym en t advertise­
m en ts in  m ed ia  th a t  have s ig n ifican t 
c irc u la tio n  am ong m in o ritie s  resid ing 
and/or w ork ing  in  th e  re c ru itin g  area;

(II) R e c ru itin g  th rough  achoola and 
colleges, inc lud ing  th o se  lo ca ted  in  the  
s ta t io n 's  local a rea , w ith  s ign ifican t 
m in o rity -g ro u p  en ro llm en ts;

(III) C on tac ting , b o th  o rally  and  in  
w ritin g , m in o rity  an d  hum an  re la tio n s  
o rgan izations, leaders, and  spokesm en 
and spokesw om en to  encourage referra l 
of qualified  m in o rity  o r fem ale appli­
can ts;

(iv) E ncourag ing  c u rre n t em ployees 
to  re fe r m in o rity  or fem ale app lican ts;

(v) M aking know n to  re c ru itm e n t 
sources in  th e  em p loyer’s im m edia te  
a re a  th a t  qualified  m in o rity  m em bers 
and fem ales a re  being sough t for con­
sid e ra tio n  w henever you h ire  and  th a t  
all c a n d id a tes  w ill be considered on a  
n o n d isc rim ln a to ry  basis.

(3) E v a lu a te  i ts  em ploym ent profile 
and Job tu rn o v e r a g a in s t th e  av a ilab il­
ity  of m in o ritie s  and women in  i ts  re ­
c ru itm e n t a re a . F o r exam ple, th is  re ­
q u irem en t m ay  be m e t by:

(1) C om paring th e  com position  of the  
re le v a n t labo r a re a  w ith  com position  of 
the  s ta t io n 's  w orkforce;

f 11) W here th e re  is un d errep resen ta­
tio n  of e i th e r  m in o ritie s  and/or women, 
exam in ing  the  com pany 's personnel 
policies and p rac tice s  to  assu re  th a t  
they  do n o t in a d v e rten tly  screen o u t 
any group  and  ta k e  ap p ro p ria te  ac tion  
w here necessary . D ata  on rep rese n ta ­
tio n  V  m in o ritie s  and women In the 
ava ilab le  labo r force are generally  
ava ilab le  on a  m e tro p o lita n  s ta tis t ic a l 
a re a  (MSA) or co un ty  basis.

(4) U n d ertak e  to  offer p rom otions of 
qualified  m in o ritie s  and women m a 
n o n d isc rim ln a to ry  fashion to positions 
of g re a te r  responsib ility . F or exam ple, 
th is  req u irem en t m ay be m e t by:

(1) In s tru c tin g  those who m ake deci­
sions on p lacem en t and  prom otion  th a t  
qualified  m in o rity  em ployees and fe­
m ales a re  to  be considered w ith o u t dis­
c rim in a tio n . and  th a t  job areas in 
w hich th e re  1s l i t t le  o r no m in o rity  or 
fem ale rep re se n ta tio n  should be re ­
viewed:

(11) G iving qualified  m in o rity  and fe­
m ale  em ployees equal oppo rtu n ity  for 
positions w hich lead  to  h igher posi­
tio n s . in qu iring  as  to  th e  in te re s t and 
sk ills  of a ll lower paid  em ployees w ith 
resp ec t to  an y  of th e  h igher paid posi­
tions.

(6) A nalyze Its  effo rts to  rec ru it , hire. 
and p rom ote  m in o ritie s  and women and 
address an y  d ifficu lties encountered  in 
im p lem en ting  i ts  equal em ploym ent 
oppor tu n i ty  progra m. F or exam ple. 
th is  req u irem en t m ay  be m e t by:

(I) A voiding use of se lec tion  te ch ­
n iques o r te s ts  th a t  have th e  effect of 
d iscr im in a tin g  aga in s t  qualified  m inor­
i ty  g roups o r  fem ales;

(II) Reviewing se n io rity  p rac tices to  
ensu re  t h a t  such  p rac tices are non- 
d lacrim lna to ry ;

(I II) R vsm ining  ra te s  of pay and 
fringe benefits for em ployees having 
th e  sam e duties, and  e lim in a tin g  any 
in e q u itie s  based upon race  or sex d is­
c rim in a tio n .

(d) Mid-term remew for television broad­
cast stations. The Com m ission will con­
d u c t a  m id -te rm  review  of th e  em ploy­
m e n t p rac tices  of each  b roadcast te le ­
vision  s ta tio n  a t  two and one half 
y ea rs  follow ing th e  s ta tio n 's  m ost re­
ce n t license ex p ira tio n  date as speci­
fied in  {73.1020. T he Com m ission will 
use th e  em p loym en t profile in fo rm a­
tio n  provided on the  f irs t two Form  
395-B rep o rts  su b m itte d  following such 
license ex p ira tio n  date  to  determ ine 
w hether te lev ision  s ta tio n 's  em ploy­
m e n t profiles as com pared to  the  app li­
cable labor force d a ta , are in com pli­
ance w ith  the  C om m ission 's processing 
c r ite r ia . T elevision broadcast s ta tio n s  
w hich em ploym ent profiles fall below 
th e  processing c r ite r ia  will receive a 
le t te r  no ting  any necessary im prove­
m e n ts  iden tified  as a  re su lt of the  re­
view.
(52 FR 30684. July 16. 1967. as amended at 68 
FR 43349. Aug. 9. 19801



CERTIFICATION OF COUNSEL

Pursuant to Circuit Rule 28 (d) (1). the undersigned counsel hereby certifies that the Brief 
of Appellant Lutheran Church-Missouri Synod in Case No. 97-1116 contains no more than the 
number of words allowed by the Court's rules for an appellant's brief, i^.12.500 words. For 
purposes of this certification, counsel has relied on a word count reported by his word processing

CERTIFICATE OF SERVICE

I. Barry H. Gottfried, a member of the Bar of this Court, do hereby certify that true and 
correct copies of the foregoing Brief for Petitioner. The Lutheran Church - Missouri Synod were 
served on this 8th day of September. 1997. upon the following via first class, postage prepaid 
U.S. mail:

Daniel M. Armstrong. Esq. Lawrence W. Secrest III. Esq.
David Silberman. Esq. Wiley Rein & Fielding
Office of the General Counsel 1776 K Street. N.W.
Federal Communications Commission Washington. D.C. 20006
1919 M Street. N.W.. Room 602 
Washington. D.C. 20554

David Honig. Esq 
3636 16th Street. N.W.
Suite B-366
Washington. D.C. 20010

Michael P. McDonald. Esq. 
Center for Individual Rights 
1233 20th Street. N.W.
Suite 300
Washington. D.C. 20036

Mark Troobnick. Esq.
American Center for Law & Justice 
1000 Thomas Jefferson St.. N.W. 
Washington. D.C. 20007