Metro Broadcasting, Inc. v. Federal Communications Commission Brief Amicus Curiae in Support of Respondents

    No. 89-453

In The -
(ta rt nf %  TUmtib l̂ taira

October Term, 1989

■ Metro Broadcasting, Inc.,
Petitioner,

v. ■

Federal Communications Commission, et al,
Respondents.

On Writ of Certiorari to the 
United States Court of Appeals 

for the District of Columbia Circuit

BRIEF OF LAWYERS’ COMMITTEE 
FOR CIVIL RIGHTS UNDER LAW AS 

AMICUS CURIAE  IN SUPPORT OF RESPONDENTS

John  Payton *
Mark  S. H ersh 
M ichael C. Small 

W ilmer , Cutler & P ickering 
2445 M Street, N.W. 
Washington, D.C. 20037-1420 
(202) 663-6000

R obert F. Mullen 
David S. Tatel 

Co-Chairmen 
Norman R edlich 

Trustee
Barbara R. A rn w in e  
Paul H oltzman  

Law yers ’ Committee for 
Civil R ights Under Law  

1400 Eye Street, N.W. 
Washington, D.C. 20005 
(202) 371-1212

March 6,1990 * Counsel of Record

W il s o n  - Epes  Pr in tin g  Co . ,  In c . -  789-0096 -  W a s h in g t o n , D.C, 20001



TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE ..................................  1

SUMMARY OF ARGUMENT ...........................................  2

ARGUM ENT................... ..................... .................................... 3

I. CONGRESS M AY USE MINORITY PREF­
ERENCES TO REMEDY THE PRESENT 
EFFECTS OF SOCIETY-WIDE DISCRIMI­
NATION ON BROADCASTING..........................  5
A. Congress Must Be Allowed to Remedy the

Consequences of Society-Wide Discrimina­
tion Through Race-Conscious Measures........ 5
1. Past society-wide discrimination has con­

crete effects today that Congress must 
have latitude to address .............................. 6

2. The Constitution gives Congress the 
unique power to address the consequences
of society-wide discrimination__________  9

B. Congress Had Sufficient Factual Support for
the Minority Preference Policy ------ ------ ---- - 13

II. THE INTEREST IN PROMOTING DIVER­
SITY OF PERSPECTIVES IN BROADCAST­
ING FURTHER SUPPORTS THE USE OF 
MINORITY PREFERENCES IN LICENSING.. 16
A. Forward-Looking Interests May Support

the Use of Racial Preferences .......................... 17
B. The Promotion of Diversity of Perspectives

in Broadcasting Is a Substantial Interest.... 18
C. Congress Had Sufficient Basis to Link Diver­

sity of Ownership With Diversity of Per­
spectives in Broadcasting ..................................  19

III. THE MINORITY PREFERENCE POLICY 
SATISFIES AN Y REASONABLE APPLICA­
TION OF THE “NARROWLY TAILORED”
TEST...................         21

CONCLUSION..........................................................................  26

Page



ii

TABLE OF AUTHORITIES
CASES: Page

Brown v. Board of Education, 347 U.S. 483
(1954)..............................................................................  8

Brown v. Hartlage, 456 U.S. 45 (1982).................. 12
CBS v. Democratic National Committee, 412 U.S.

94 (1973) ........... ....................... - _____ ____ ________  4,13
City of Richmond v. J. A. Croson Co., 109 S. Ct.

706 (1989) ............ ............................... ....... ................passim
City of Rome v. United States, 446 U.S. 156

(1980) _________      10
Ex parte Virginia, 100 U.S. 339 (1879).................  9
FCC v. League of Women Voters, 468 U.S. 364

(1984)_____       4
FCC v. National Citizens Committee for Broad­

casting, 436 U.S. 775 (1978) ............ ....... ............. 18
Fullilove v. Klutznick, 448 U.S. 448 (1980) ...........passim
Hampton v. Mow Sun Wong, 426 U.S. 88 (1976).. 13
Heart of Atlanta Motel, Inc. v. United States, 379

U.S. 241 (1964) ________ _________ _________ ____ 3
Johnson v. Transportation Agency, 480 U.S. 616

(1987)......... - ................ - ..... - ___________ ___ _______  24
Jones v. Alfred H. Mayer Co., 392 U.S. 409

(1968) _________          3
Katzenbach v. McClung, 379 U.S. 294 (1964)____  3
Katzenbach v. Morgan, 384 U.S. 641 (1966)___ 3,10 ,16
Local 28 of Sheet Metal Workers’ International

Association v. EEOC, 478 U.S. 421 (1986).......  24
Main Line Paving Co. v. Philadelphia Board of

Education, 725 F. Supp. 1349 (E.D. Pa. 1989).. 24
Morrison v. Olson, 108 S. Ct. 2597 (1988)..........   13
Norwood v. Harrison, 413 U.S. 455 (1973) .............. 10
Oregon v. Mitchell, 400 U.S. 112 (1970) .............. 3 ,14
Red Lion Broadcasting Co. v. FCC, 395 U.S. 367

(1969)   ............. .......... .............................. ....... ... 24
Regents of the University of California v. Bakke,

438 U.S. 265 (1978)______________ _______15,18,19, 21
Sable Communications of California, Inc. v. FCC,

109 S. Ct. 2829 (1989)............... ........ .....................  19
Scott v. Sandford, 60 U.S. (19 Howard) 393

(1857)  ......................................................................  8



iii

TABLE OF AUTHORITIES— Continued
Page

Shurberg Broadcasting of Hartford, Inc. v. FCC,
876 F,2d 902 (D.C. Cir. 1989), cert, granted 
sub nom. Astroline Communications Co. v. 
Shurberg Broadcasting of Hartford, Inc., 110
S. Ct. 715 (1990)------ --------------------- ---- -----------22, 23, 24

South Carolina v. Katzenbach, 383 U.S. 301
(1966) .............. ...... ...................... -.......... ............. -.....  3

United Jewish Organizations of Williamsburgh,
Inc. v. Carey, 430 U.S. 144 (1977) .... ....— ...............-  9,11

United States v. Guest, 363 U.S. 745 (1966)------- 10
United States v. Paradise, 480 U.S. 149 (1987)-.- 18
Winter Park Communications, Inc. v. FCC, 873 

F.2d 347 (D.C. Cir. 1989), cert, granted sub 
nom. Metro Broadcasting, Inc. v. FCC, 110
S. Ct. 715 (1990) ......... ..................... .......... .......... 20, 23, 24

Wygant v. Jackson Board of Education, 476 U.S.
267 (1986) ________________ _______________17,18,23,24

LEGISLATIVE, STATUTORY AND REGULATORY 
M ATERIALS:

42 U.S.C. § 1981......... - ....................................................  12:
42U.S.C. § 1982— ............... -....... -......... -......... -...... ----- 12
42 U.S.C. § 1983------------------------- - --------------------------  12
Civil Rights Act of 1957, Pub. L. No. 85-315, 71

Stat. 634 ........ .......... ....... - ............................................  12
Civil Rights Act of 1964, Pub. L. No. 88-352, 78

Stat. 241 -.....-....... -....-.....-............................................ 12
Civil Rights Act of 1968, Pub. L. No. 90-284, 82

Stat. 8 1 ________________ _________ ----------- ------- -----  12
Civil Rights Attorney’s Fees Awards Act of 1976,

Pub. L. No. 94-559, 90 Stat. 2641 ---------------------- 12
Emergency School Aid Act of 1978, Pub. L. No.

95-561, 92 Stat. 2252 _______ ___-.............-----..........  12
Equal Employment Opportunity Act of 1972, Pub.

L. No. 92-261, 86 Stat. 103 ------------ ----- -...... .........  12,14
Fair Housing Act Amendments of 1988, Pub L.

No. 100-430, 102 Stat. 1619 ...............................- - -  12,14
H.R. Conf. Rep. No. 765, 97th Cong., 2d Sess. 

(1982)-.....................- ....................................................



Pub. L. No. 97-259, 96 Stat. 1087 (1982).................... 16
Pub. L. No. 100-202,101 Stat. 1329 (1987).............  4
Pub. L. No. 100-459,102 Stat. 2186 (1988) .............   4
Pub. L. No. 101-162,103 Stat. 1020 (1989)..............  4
Statement on Policy on Minority Ownership of

Broadcasting Facilities, 68 F.C.C.2d 979 (1978).. 26
Surface Transportation and Uniform Relocation 

Assistance Act of 1987, Pub. L. No. 100-17,
101 Stat. 132 ........................ .................................. ... -  12

Voting Rights Act of 1965, Pub. L. No. 89-110, 79
Stat. 43 7 ........ ......... ....... .......................... ............... .....  12

Voting Rights Act Amendments of 1982, Pub. L.
No. 97-205, 96 Stat. 131 ..... ...................................... 12,14

MISCELLANEOUS AUTHORITIES:
Ackerman, Constitutional Politics/Constitutional

Law, 99 Yale L.J. 453 (1989) .........................H
American Council on Education and the Education 

Commission of the States, One-Third of a Na­
tion: A Report of the Commission on Minority 
Participation in Education and American Life
(1988) ----------------- -------------- ------------------------- -------  5

B. Blauner, Black Lives, White Lives: Three Dec­
ades of Race Relations in America (1989)____  5

Committee on the Status of Black Americans, A 
Common Destiny: Blacks in American Society
(1989) _______________ ___________________________  5, 6

R. Dahl, Democracy and Its Critics (1989) — ....... 11
The Federalist No. 10 (J. Madison)......... ...................  11,12
The Federalist No. 51 (J. Madison)    ................... 11,12
K. Karst, Belonging to America: Equal Citizen­

ship and the Constitution (1989) ............ ......... . 6
The Mexican American Experience: An Interdis­

ciplinary Anthology (R. de la Garza ed. 1985).... 5
G. Myrdal, An American Dilemma: The Negro 

Problem and Modern American Democracy
(1944)----------- ---------------------- --------------- ---------------  6

Report of the National Advisory Commission on
Civil Disorders (1968)..................—......................... 6, 21

iv

TABLE OF AUTHORITIES— Continued
Page



V

TABLE OF AUTHORITIES— Continued
Page

T. Sowell, The Economics and Politics of Race
(1983)...............................      20

Sunstein, Interest Groups in American Public
Law, 38 Stan. L. Rev. 29 (1985) ........................... 11

L. Tribe, American Constitutional Law (2d ed.
1988) .......         11

United States Department of Commerce, Statisti­
cal Abstract of the United States (1989) ..........  5

United States Commission on Civil Rights, Win­
dow Dressing on the Set: Women and Minori­
ties in Television (1977)______________ ____ ____  21

C. Wilkinson, American Indians, Time and the 
Law: Native Societies in a Modern Constitu­
tional Democracy (1987) .........................................  5

W. Wilson, The Truly Disadvantaged: The Inner
City, the Underclass and Public Policy (1987) 5



In The

Bnpxmvx GJmirt itf %  Untteft BMxb
October Term, 1989

No. 89-453

Metro Broadcasting, Inc.,
Petitioner,v.

Federal Communications Commission, et al., 
__________  Respondents.

On Writ of Certiorari to the 
United States Court of Appeals 

for the District of Columbia Circuit

BRIEF OF LAWYERS’ COMMITTEE 
FOR CIVIL RIGHTS UNDER LAW  AS 

AMICUS CURIAE IN SUPPORT OF RESPONDENTS

INTEREST OF AMICUS CURIAE

The Lawyers’ Committee for Civil Rights Under Law 
is a nonprofit organization established in 1963 at the re­
quest of the President of the United States to involve 
leading members of the bar throughout the country in a 
national effort to insure civil rights to all Americans. 
Through its national office in Washington, D.C., and its 
several affiliate Lawyers’ Committees, such as the Wash­
ington, D.C., Lawyers’ Committee for Civil Rights Under 
Law, the organization has over the past 27 years en­
listed the services of thousands of members of the private 
bar in addressing the legal problems of minorities and 
the poor in voting, education, employment, housing, mu­



2

nicipal services, the administration of justice, and law 
enforcement.1

SUMMARY OF ARGUMENT

Racial and ethnic discrimination continues to impose 
significant barriers to the opportunities of minorities 
throughout our society. Congress has unique power and 
competence to identify and remedy the effects of this soci­
ety-wide discrimination, and should be given latitude to 
utilize racial preferences where it concludes they are ap­
propriate. This congressional power stems in large meas­
ure from the Reconstruction era amendments, which gave 
Congress preeminent authority over matters of race and 
entrusted Congress to enforce the constitutional guaran­
tees of equality.

In this case, Congress has confronted the tangible 
present-day effects of society-wide discrimination on the 
vitally important broadcast industry. It has concluded 
that this discrimination has resulted in the virtual absence 
of minorities from the ranks of owners of broadcast li­
censes, which in turn has practically excluded minority 
viewpoints from the airwaves. In addition to the interest 
in remedying discrimination for its own sake, Congress 
has a substantial interest in promoting a diversity of 
perspectives in broadcasting. And, Congress has good 
reason to believe that a minority preference policy in 
awarding broadcast licenses will in fact enhance diversity 
in broadcasting. This diversity interest further supports 
Congress’ use of racial preferences.

Congress’ action is entitled to substantial deference by 
this Court. Although there must be judicial review of the 
factual support underlying any race-based measure, here 
that review must take into account Congress’ wealth of 
experience in addressing the problems of discrimination 
and its familiarity with the realities and complexities of

1 The parties have consented to the filing- of this brief. Letters 
of consent are on file with the Clerk of the Court.



3

the broadcasting industry. Similarly, while the minority 
preference should be narrowly tailored to its objectives, 
Congress must have leeway in its choice of means. It 
should be permitted to employ group remedies that do not 
require its beneficiaries to prove they are “victims”  of 
discrimination, and that place some burden on nonminori­
ties without upsetting firmly rooted expectations.

ARGUMENT

This case concerns the power of Congress to respond to 
problems caused by racial and ethnic discrimination in 
our society. The Lawyers’ Committee for Civil Rights 
Under Law believes that Congress has unique competence 
to identify these problems and must be given the neces­
sary latitude to address them. This principle was at the 
core of a series of landmark decisions more than two 
decades ago in which this Court upheld sweeping federal 
legislation designed to combat society-wide discrimination 
against racial and ethnic minorities.2 It was also this 
principle that guided this Court’s decision in Fullilove v. 
Klutznick, 448 U.S. 448 (1980), upholding Congress’ de­

2 See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 442-43 (1968) 
(42 U.S.C. § 1982 intended to address society-wide racial discrimi­
nation that was “ herd[ing] men into ghettos and mak[ing] their 
ability to buy property turn on the color of their skin” ) ; Katzen- 
bach v. Morgan, 384 U.S. 641, 652-53 (1966) (section 4(e) of 
Voting Rights Act designed to guarantee equal rights to all Ameri­
cans) ; South Carolina v. Katzenbach, 383 U.S. 301, 309 (1966) 
(Voting Rights Act deemed appropriate response to the “ insidious 
and pervasive evil” of racism) ; Katzenbach v. McClung, 379 U.S. 
294, 301 (1964) (characterizing the racial discrimination pro­
hibited by Title III of 1964 Civil Rights Act as a problem of “na­
tionwide scope” ) ; Heart of Atlanta Motel, Inc. v. United States, 
379 U.S. 241, 257 (1964) (describing society-wide discrimination 
as “ a moral problem” with “ disruptive effects” ) ; see also Oregon 
v. Mitchell, 400 U.S. 112, 133 (1970) (opinion of Black, J.) (since 
racial and ethnic discrimination is “a serious national dilemma that 
touches every corner of our land,”  Congress has power to “ deal 
with [this problem] with nationwide legislation” ).



4

termination that in order to redress the lingering effects 
of past racial and ethnic discrimination on public con­
tracting, it was necessary to take the race and ethnicity 
of contractors into account.

This principle of congressional competence carries even 
greater force in this case, because here Congress is ad­
dressing the consequences of past racial and ethnic dis­
crimination in an area of vital national concern— broad­
casting-over which it traditionally has exercised broad 
oversight.3 Congress has concluded that the virtual ab­
sence of minorities from the ranks of owners of broadcast 
licenses is a result of past society-wide discrimination, 
and has limited the diversity of perspectives conveyed 
over the nation’s airwaves.4 The preference granted to 
minorities in comparative licensing proceedings reflects a 
considered response on the part of Congress to this deeply 
vexing problem.5 We urge the Court to uphold it.

3 See FCC v. League of Women Voters, 468 U.S. 364, 376-77 
(1984) (Court has “ long- recognized” that Congress must have 
ability to regulate “ scarce and valuable resource” of broadcast 
licenses and “ seek to assure that the public receives . . .  a balanced 
presentation of information on issues of public importance” ) ; CBS 
v. Democratic Nat’l Comm., 412 U.S. 94, 103 (1973) (Court must 
review challenges to broadcast regulation mindful of Congress’ ex­
tensive role in “ the development of our broadcast system [for] 
over [a] half century” ).

4 Some defenders of the minority preference policy have argued 
that its objective is not to remedy the effects of past discrimination, 
but rather to serve the “ non-remedial” objective of promoting a 
diversity of perspectives in broadcasting. While the policy does 
have this diversity objective, see infra Part II, its “non-remedial” 
elements cannot be divorced from the remedial elements. For if not 
for past discrimination, there would be no need to take affirmative 
steps to increase minority ownership of broadcast licenses as a 
means of increasing the diversity of perspectives to which the tele­
vision and radio audience is exposed.

5 Congress clearly has acted here. After holding a series of hear­
ings between 1982 and 1987 on minority ownership of broadcast 
licenses, Congress ordered the FCC to continue granting a minority



5

I. CONGRESS M AY USE MINORITY PREFERENCES 
TO REMEDY THE PRESENT EFFECTS OF SOCI­
ETY-WIDE DISCRIMINATION ON BROADCAST­
ING

A. Congress Must Be Allowed to Remedy the Conse­
quences of Society-Wide Discrimination Through 
Race-Conscious Measures

Our nation still suffers from the legacy of racial dis­
crimination. In many sectors of our society, the gaps be­
tween minorities and nonminorities are enormous.6 While 
other factors also may be at work, society-wide discrimi­
nation is responsible, in large part, for our failure to re­
solve what in 1944 Gunnar Myrdal labeled the “ American

preference in comparative proceedings. That directive, which came 
in the 1987 appropriations bill, passed both the House of Repre­
sentatives and the Senate, and was signed into law by the Presi­
dent. See Pub. L. No. 100-202, 101 Stat. 1329-31 (1987). Congress 
issued similar directives to the FCC in the 1988 and 1989 appro­
priations bills. See Pub. L. No. 100-459, 102 Stat. 2186, 2216-17
(1988) ; Pub. L. No. 101-162, 103 Stat. 1020 (1989). Together, the 
three measures demonstrate that the minority preference policy is 
one that is mandated by Congress.

6 The evidence of continuing discrimination-related disparities be­
tween the races is by now disturbingly familiar: Minorities are 
disproportionately trapped in the cycle of poverty and crime that 
grips our inner cities; their educational achievements lag far behind 
those of nonminorities; and they are far more likely to feel 
alienated from, and disillusioned with, our nation’s political and 
social institutions. See, e.g., B. Blauner, Black Lives, White Lives: 
Three Decades of Race Relations in America (1989); C. Wilkinson, 
American Indians, Time and the Law: Native Societies in a Modern 
Constitutional Democracy (1987); W. Wilson, The Truly Disadvan­
taged: The Inner City, the Underclass and Public Policy (1987); 
The Mexican American Experience: An Interdisciplinary Anthology 
(R. de la Garza ed. 1985); Committee on the Status of Black 
Americans, A Common Destiny: Blacks in American Society
(1989) ; American Council on Education and the Education Com­
mission of the States, One-Third of a Nation: A Report of the 
Commission on Minority Participation in Education and American 
Life (1988); U.S. Dept, of Commerce, Statistical Abstract of the 
United States, Tables 634, 747 (1989).



6

Dilemma.” 7 Congress must be permitted to address the 
present-day consequences of past society-wide discrimina­
tion, through race-conscious measures if appropriate.

1. Past society-wide discrimination has concrete 
effects today that Congress must have latitude 
to address

Where society-wide discrimination has resulted in spe­
cific identifiable problems— in this case, a virtual absence 
of minority broadcasters and an accompanying lack of 
diversity in broadcasting— it is not an “ amorphous” con­
cept that is “ ageless in its reach into the past.”  8 Rather, 
it is a concrete, tangible phenomenon that continues to 
haunt us. In view of the formidable barriers that society­
wide discrimination still poses to the opportunities of 
minorities, “ Congress properly may— and indeed must— 
address directly the problems of discrimination in our 
society,” and in some situations must be able to do so 
through race-conscious means.9

7 G. Myrdal, An American Dilemma: The Negro Problem and 
Modern American Democracy (1944). As a report released by the 
National Research Council only last year conclusively demonstrates, 
Myrdal’s label is, unfortunately, still an apt one. See A Common 
Destiny, supra note 6, at 5 ( “ legacy of discrimination and segrega­
tion” continues to hinder attempts by black Americans to “remov[e] 
barriers” to full participation in society). That report also reveals 
the persistence of the problems that were described in the seminal 
1968 Report of the National Advisory Commission on Civil Dis­
orders [hereinafter “Kerner Commission Report” ]. See also K. 
Karst, Belonging to America: Equal Citizenship and the Constitu­
tion ch. 9 (1989) (past discrimination is contributing factor to the 
condition of minorities who constitute a disproportionate percentage 
of the marginalized poor in America).

s City of Richmond v. J.A. Croson Co., 109 S. Ct. 706, 723 (1989) 
(quoting Regents of Univ. of California v. Bakke, 438 U.S. 265, 307 
(1978) (opinion of Powell, J .)).

9 Fullilove, 448 U.S. at 499 (Powell, J., concurring). See id. at 
482 (opinion of Burger, C.J.) ( “ [w]e reject the contention that in 
the remedial context Congress must act in a wholly ‘color-blind’ 
fashion” ).



7

Like this case, Fullilove involved congressional action 
to remedy a problem in an important industry, public con­
tracting, caused by the continuing effects of past discrimi­
nation. In adopting the race-conscious measure at issue 
there, Congress concluded that existing race-neutral pro­
curement practices were resulting in the ‘ ‘'perpetuation 
of the effects of prior discrimination which had impaired 
or foreclosed access by minority businesses to public con­
tracting opportunities.” 448 U.S. at 473 (opinion of 
Burger, C.J.).10 Notably, these were “ barriers to com­
petitive access which had their roots in racial and ethnic 
discrimination, and which continue today, even absent 
any intentional discrimination or other unlawful con­
duct.”  Id. at 478 (opinion of Burger, C.J.). Because 
race-neutral action only reinforced a racially skewed 
system of contracting, Congress decided that race­
conscious action was appropriate to overcome the legacy 
of discrimination.

Last term’s decision in Croson reaffirmed that Congress 
may predicate race-conscious action on the need to cure 
the identified present-day consequences of past society- 
wide discrimination. The plurality declared that while 
state and local governments may use race-conscious meas­
ures only to remedy identified discrimination in particular 
sectors and industries within their jurisdictions, Congress 
may do so to “ redress the effects of society-wide discrimi­
nation.”  11

10 See Fullilove, 448 U.S. at 505-06 (Powell, J., concurring) (past 
discrimination, which was not “ identified with . . . exactitude,” had 
effects that were being perpetuated by present procurement prac­
tices) ; id. at 520 (Marshall, J., concurring) (“ present effects of 
past racial discrimination” continued to impair access of minority 
businesses to public contracting opportunities); see also Croson, 
109 S. Ct. at 718 (plurality opinion) (Congress’ action in Fullilove 
was predicated on belief that the “ effects of past discrimination 
had impaired the competitive position of minority businesses” ).

11 Croson, 109 S. Ct. at 719. This reaffirmation of Fullilove is 
not acknowledged by the Department of Justice. Nowhere does it 
come to grips with the fact that, unlike the City of Richmond,



8

While it may be true that in the short run the use of 
racial and ethnic preferences to remedy the effects of past 
society-wide discrimination “carries a danger of stigmatic 
harm,”  12 13 in the long run minority preferences are de­
signed in part to overcome stigma. Stigma is, after all, 
an intended product of discrimination: “ [I]t  is hardly 
consistent with the respect due to these States, to suppose 
that they regarded . . .  as fellow-citizens and members of 
the sovereignty, a class of beings whom they had thus 
stigmatized; whom, as we are bound, out of respect to the 
State sovereignties, to assume they had deemed it just 
and necessary thus to stigmatize, and upon whom they 
had impressed such deep and enduring marks of inferior­
ity and degradation.” Dred Scott v. Sandford, 60 U.S. 
(19 Howard) 393, 416 (1857).13 Stigma continues to this 
day. In employing minority preferences, Congress has 
concluded that ultimately, stigma can only be overcome 
by more minorities performing in positions of consequence 
and thereby breaking down stereotypes and dispelling 
prejudices that were formed by stigma in the first place.

Congress may tackle society-wide discrimination through race-based 
measures. Instead, the Department of Justice injects the Croson 
limitations on state and local government action into this case and 
condemns Congress for failing to have identified discrimination 
with the degree of particularity that this Court required of the 
City of Richmond. The questions that the Department of Justice 
poses—whether there was any evidence of prior discrimination 
against minorities by the FCC or in the broadcasting industry— 
are the wrong ones to be asking here. See Brief of the United 
States as Amicus Curiae Supporting Petitioner at 20-21 [herein­
after “ Brief of U.S.” ] .

1:2 Croson, 109 S. Ct. at 721. Here, though, there is very little 
danger of stigmatic harm, since minorities must meet basic financial 
qualifications and the other qualifications for a broadcast license 
are unrelated to “ merit.”

13 See also Brown v. Board of Educ., 347 U.S. 483, 494 (1954) 
(“ To separate them from others of similar age and qualifications 
solely because of their race generates a feeling of inferiority as to 
their status in the community that may affect their hearts and 
minds in a way unlikely ever to be undone” ) .



9

2. The Constitution gives Congress the unique 
power to address the consequences of society­
wide discrimination

Congress has unique power to remedy the consequences 
of society-wide discrimination, and its judgments about 
how to exercise that power are entitled to deference. Con­
gress’ special authority in matters of race derives, in large 
part, from the positive grant of legislative power that it 
enjoys pursuant to the Thirteenth, Fourteenth and Fif­
teenth Amendments, all of which were adopted during the 
post-Civil War Reconstruction era.14

As this Court stated in Croson, the Reconstruction era 
amendments “worked a dramatic change in the balance 
between congressional and state power over matters of 
race.” 15 The amendments firmly established that Con­
gress is the political institution uniquely competent to 
address society-wide problems related to racial discrimina­
tion, problems of national dimension. Having lived 
through the discord of the Civil War, the architects of the 
amendments were suspicious of local government when it 
came to race, and thus “ limit [ed] the power of the states 
and enlarged] the powers of Congress” so as to unify 
the nation again. Ex parte Virginia, 100 U.S. 339, 345 
(1879).

Consequently, as this Court has recognized, “ in no 
organ of government, state or federal, does there repose 
a more comprehensive remedial power than in the Con­
gress, expressly charged by the Constitution with com­
petence and authority to enforce equal protection guaran­

14 As Chief Justice Burger pointed out in Fullilove, Congress may 
also address the effects of society-wide discrimination under its 
Commerce and Spending Powers. Fullilove, 448 U.S. at 475-76.

15 Croson, 109 S. Ct. at 719. See id. at 736 (Scalia, J., concur­
ring) (Congress’ powers “concerning matters of race were ex­
plicitly enhanced by the Fourteenth Amendment” ) ; see also United 
Jewish Organizations of Williamsburgh, Inc. v. Carey, 430 U.S. 144 
(1977) (under Fifteenth Amendment Congress can compel states to 
take action to ensure guarantees of full citizenship).



10

tees.”  Fullilove, 448 U.S. at 483 (opinion of Burger, 
C.J.). Congress’ remedial power is not restricted to situa­
tions where state action has violated the Constitution. 
The enforcement provisions of the Reconstruction era 
amendments not only authorize Congress to ensure that 
states comply with the principles of equality, but also to 
“ define situations . . . that threaten [those] principles 
. . . and to adopt prophylatic rules to deal with those 
situations.”  16

These prophylactic rules may be race-based. In Fulli­
love, Congress had determined that the existing govern­
ment contract procurement system perpetuated the ef­
fects of past discrimination and denied minorities equality 
under the law. This Court held that Congress could pre­

16 Croson, 109 S. Ct. at 719. See Katzenbach v. Morgan, 384 U.S. 
at 648-50; see also City of Rome v. United States, 446 U.S. 156, 177 
(1980) (Congress could adopt rule barring certain state conduct 
with respect to voting as a means of promoting purposes of Fif­
teenth Amendment, even where state arguably had not violated the 
Amendment).

Nevertheless, the Department of Justice insists that “ unlawful” 
state action must be implicated before Congress can legislate under 
section 5 of the Fourteenth Amendment, and from there argues 
that there is no such action here since broadcast licensing only 
involves the federal government, not the states. Brief of U.S. at 18 
n.10. But even assuming that unlawful state action is required, 
the Department of Justice’s argument is wrong, for it was states 
that perpetrated and tolerated much of the society-wide discrimina­
tion that is to be remedied here. In any event, the question of the 
existence of state action—lawful or unlawful— is academic. Con­
gress clearly can address problems of race relations under the 
Thirteenth Amendment and the Commerce Clause, both of which 
apply to purely private as well as state action. See Fullilove, 448 
U.S. at 475 (opinion of Burger, C.J.) (approving remedial legisla­
tion that affected private conduct under Congress’ Commerce 
Power) ; Norwood v. Harrison, 413 U.S. 455, 470 (1973) (private 
discrimination subject to remedial legislation under section 2 of 
Thirteenth Amendment). Furthermore, Congress may be able to 
remedy private discrimination under section 5 of the Fourteenth 
Amendment. See United States v. Guest, 383 U.S. 745 (1966); 
Katzenbach v. Morgan, 384 U.S. at 652-53.



11

scribe a race-conscious remedy even absent proof of un­
lawful discrimination by the states.17 In this case, as we 
will show in Part IB, the existing broadcast licensing 
system also perpetuates the effects of past society-wide 
discrimination. Here too, Congress has the power to use 
racial preferences to address the problem.

The shifting of power from the states to the national 
government after the Civil War embodied in part the 
republican political theory expounded by James Madison 
and others.18 Madison feared that parochial interests and 
factionalism, particularly at the local level, would subvert 
the democratic process and the proper operation of govern­
ment.19 His solution was a national legislature that would 
rise above the fray of local factions and deliberate matters 
of national dimension. It would, of course, operate with 
checks and balances so as to limit the power of its own 
factions and even of its majority.20 The House of Repre­

17 See Fullilove, 448 U.S. at 478 (opinion of Burger, C .J.); see 
also UJO v. Carey, 430 U.S. at 155 (Congress could require states 
to act on the basis of race to secure Fifteenth Amendment guaran­
tees).

18 See L. Tribe, American Constitutional Law 2-7 (2d ed. 1988) 
(Reconstruction era amendments reflected Madison’s theory that 
national government would he more likely to protect individual 
liberties than local government); Ackerman, Constitutional Poli­
tics /Constitutional Law, 99 Yale L.J. 453, 508-09 (1989) (Recon­
struction era amendments, which “gave a new primacy to our na­
tional institutions” at the expense of local ones, carried out inten­
tion of republican political theorists); see also Croson, 109 S. Ct. 
at 736 (Scalia, J., concurring) (“ [a] sound distinction between 
federal and state (or local) action based on race rests not only on 
the substance of the Civil War Amendments, but upon social reality 
and governmental theory” ) .

19 The Federalist No. 10, at 77-78 (J. Madison) (C. Rossiter ed. 
1961). See also R. Dahl, Democracy and Its Critics 218 (1989); 
Sunstein, Interest Groups In American Public Law, 38 Stan. L. Rev. 
29, 39-45 (1985).

20 See The Federalist No. 10, at 82-83; The Federalist No. 51, 
at 322-23 (J. Madison) (C. Rossiter ed. 1961).



12

sentatives and the Senate would act as checks on each 
other; together, they would “ discern the true interests of 
the [] country,” and promulgate legislation expressing the 
national will without sacrificing justice to “ temporary or 
partial considerations.”  21

Over the past three decades, Congress has identified a 
national interest— indeed a commitment— in eradicating 
discrimination and its effects. Through a wide array of 
legislation, it has acted to fulfill that commitment.22 The

21 The Federalist No. 10, at 82. See also Brown v. Hartlage, 456 
U.S. 45, 56 n.7 (1982) ( “ [i]n the extended republic of the United 
States, and among the great variety of interests, parties and sects 
which it embraces, a coalition of a majority of the whole society 
could seldom take place on any other principles than those of justice 
and the general good” ) (quoting The Federalist No. 51, at 325). 
In Croson, Justice Scalia stressed that it is consistent with the 
republican vision of government to trust Congress on matters of 
race. He explained:

[Rjaeial discrimination against any group finds more ready 
expression at the state and local level than at the federal level. 
To the children of the Founding Fathers, this should come as 
no surprise. An acute awareness of the heightened danger of 
oppression from political factions in small, rather than large, 
political units dates to the very begining of our national his­
tory.

109 S. Ct. at 737 (Scalia, J., concurring).

22 See, e.g., Civil Rights of 1957, Pub. L. No. 85-315, 71 Stat. 
634 (codified at 5 U.S.C. § 535(19) et seq.) ; Civil Rights Act of 
1964, Pub. L. No. 88-352, 78 Stat. 241 (codified at 42 U.S.C. §§ 2000a 
et seq.) ; Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 
437 (codified at 42 U.S.C. §§ 1971 et seq. ) ; Civil Rights Act of 1968, 
Pub. L. No. 90-284, 82 Stat. 81 (codified at 18 U.S.C. §§ 231 et seq. ) ; 
Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, 
86 Stat. 103 (codified at 42 U.S.C. §§ 2000 et seq. ) ; Civil Rights 
Attorney’s Fees Awards Act of 1976, Pub. L. No. 94-559, 90 Stat. 
2641; Emergency School Aid Act of 1978, Pub. L. No. 95-561, 92 
Stat. 2252 (codified at 20 U.S.C. § 3191-3207); Voting Rights Act 
Amendments of 1982, Pub. L. No. 97-205, 96 Stat. 131 (codified at 
42 U.S.C. §§ 1971 et seq.) ; Surface Transportation and Uniform 
Relocation Assistance Act of 1987, Pub. L. No. 100-17, 101 Stat. 132; 
Fair Housing Act Amendments of 1988, Pub. L. No. 100-430, 102



minority preference policy at issue in this case is part of 
this overall effort.

B. Congress Had Sufficient Factual Support for the 
Minority Preference Policy

This Court has made it clear that race-based remedial 
action must have sufficient factual support. In this case 
that requirement is satisfied, as Congress had ample basis 
to believe that historical patterns of discrimination have 
resulted in an almost complete absence of minorities as 
owners of broadcast licenses.

Although judicial review of the factual support for race- 
based action must always be searching, where Congress 
has acted appropriate deference is in order,23 even when 
fundamental rights are at stake.24 While Congress may 
not simply presume that society-wide discrimination has 
had effects that need to be remedied, the facts on which 
Congress predicates its action need not be found with the 
same specificity and precision that this Court demands of 
states and cities, and need not be compiled in formal find­
ings.25 26 Moreover, when considering the record underly­

Stat. 1619; see also 42 U.S.C. § 1981; 42 U.S.C. § 1982; 42 U.S.C. 
§ 1983.

23 Mindful that an act of Congress was at issue in Fullilove, 
Chief Justice Burger acknowledged that this Court was assuming 
“the gravest and most delicate duty that [it] is called on to per­
form,”  Fullilove, 448 U.S. at 472 (quoting Blodgett v. Holden, 275 
U.S. 142, 148 (1927) (Holmes, J .)), and he called for “appropriate 
deference.” 7d. at 472. See also Morrison v. Olson, 108 S. Ct. 2597, 
2626 (1988) (Scalia, J., dissenting) (the “ harmonious functioning 
of the [political] system demands that [this Court] ordinarily give 
some deference, or a presumption of validity” to federal legislation).

24 See CBS v. Democratic Nat’l Comm., 412 U.S. at 102 (Court 
must approach its review of First Amendment challenge to con­
gressional action with “ great delicacy” ). Cf. Hampton v. Mow Sun
Wong, 426 U.S. 88, 103 (1976) (Court generally presumes that 
overriding national interest will justify discriminatory rule that is 
“expressly mandated by the Congress or the President” ).

26 See Fullilove, 448 U.S. at 502 (Powell, J., concurring) (Con­
gress’ role as promulgator of “national rules for the governance of

13



14

ing any federal statute, this Court looks beyond the formal 
legislative history, taking into account all relevant infor­
mation that was at Congress’ disposal when it acted.26

This approach is particularly appropriate here, since 
Congress was not operating on a blank slate. It has legis­
lated repeatedly in the area of race relations and “made 
national findings that there has been societal discrimina­
tion in a host of fields.”  Croson, 109 S. Ct. at 727. Be­
ginning with the Civil Rights Act of 1957, which created 
both the United States Civil Rights Commission and the 
Civil Rights Division of the Department of Justice, and 
continuing to the present, Congress has passed significant 
legislation addressing the problems of racial discrimina­
tion that have affected the country.* 26 27 This legislation is 
routinely the subject of oversight hearings and is regu­
larly amended better to achieve its purposes.28 This long, 
difficult, and frustrating process has made Congress 
aware of what has worked, what has not worked, and 
what needs to be tried. It has acquainted Congress with 
those areas of our society that are especially unaffected 
by mere antidiscrimination measures. It should be un­

our society simply does not entail the same concept of record-making 
that is appropriate to a judicial or administrative proceeding” ) ; id. 
at 478 (opinion of Burger, C.J.) (“ Congress, of course, may legislate 
without compiling the kind of ‘record’ appropriate with respect to 
judicial or administrative proceedings” ) ; cf. Oregon v. Mitchell, 
400 U.S. at 284 (Stewart, J., concurring in part and dissenting in 
part) (compared to local legislatures, “ Congress may paint with 
a much broader brush” ) .

26 Fullilove, 448 U.S. at 503 (Powell, J., concurring) (Congress’ 
“ special attribute lies in its broader mission to investigate and 
consider all facts and opinions that may be relevant to the resolu­
tion of an issue” ).

27 See supra note 22.
28 See, ,e.g., Equal Opportunity Act of 1972, supra note 22 (ex­

tending reach of Title VII of 1964 Civil Rights A c t ) ; Voting Rights 
Act Amendments of 1982, supra note 22 (extending reach of Voting 
Rights Act of 1965); Fair Housing Act Amendments of 1988, 
supra note 22 (extending reach of Fair Housing Act of 1968).



15

necessary for Congress to redocument the fact and his­
tory of discrimination every time it contemplates enacting 
another law.29

Congress’ experience in addressing the problems of 
racial discrimination was complemented in this case by its 
familiarity with the workings of the broadcasting indus­
try. When it directed the FCC to continue implementing 
the minority preference policy in comparative proceedings, 
Congress already knew that most of the licenses were 
initially awarded— at bargain basement rates— at a time 
when minorities were effectively excluded from the 
bidders’ table by discrimination that was pervasive and 
officially sanctioned in many parts of the country.30 
It already knew that today the central barrier to enter 
broadcasting is an economic one, the need for sub­
stantial risk capital. It already knew that this barrier 
has had a disproportionate impact on minorities largely 
attributable to society-wide discrimination. And, Congress 
also knew that because the broadcasting industry is a 
mature one, and the frequency spectrum already well 
saturated, the most inexpensive way to acquire a license 
is through the comparative hearing process.31

29 See Fullilove, 448 U.S. at 503 (Powell, J., concurring-) (in 
light of the “ information and expertise that [it has] acquirefd] 
in the consideration and enactment of earlier legislation,” Congress 
should not be required “to make specific factual findings with 
respect to each legislative action” it takes in the area).

30 See Bakke, 438 U.S. at 393-94 (opinion of Marshall, J.) (in all 
walks of life, “ [t]he enforced segregation of the races continued 
into the middle of the 20th century” and was not “ limited solely 
to the Southern States” ).

S:1 The Department of Justice asserts that approximately 9% of 
all existing broadcast licenses change hands in any given year. 
Brief of U.S. at 21 n.12. But unlike at the outset of FCC licensing, 
radio and television stations today are not being given away for 
almost nothing; they are sold at significant premiums that derive 
from the increased value of broadcast stations over time. Having 
been excluded from the market when licenses were virtually free,



16

Viewed against that backdrop, the minority preference 
in comparative proceedings has sufficient factual support. 
To ignore Congress’ substantial experience in confronting 
the consequences of racial discrimination and in deciding 
how best to allocate broadcast licenses is to “blind [one­
self] to the realities familiar to the legislators.”  Katzen- 
bach v. Morgan, 384 U.S. at 653.32

II. THE INTEREST IN PROMOTING DIVERSITY OF 
PERSPECTIVES IN BROADCASTING FURTHER  
SUPPORTS THE USE OF MINORITY PREFER­
ENCES IN LICENSING

While Congress has a strong interest in remedying soci­
ety-wide discrimination for its own sake, there is even a 
stronger public interest in remedial action that simultane­
ously serves other important goals. In this case, Congress 
determined that society-wide discrimination not only has 
resulted in the virtual absence of minority license owners 
in the broadcast industry, but that this in turn has had 
a significant deleterious effect on the diversity of perspec­
tives reflected in broadcasting. The minority preference 
policy thus serves both the purely “backward-looking” in-

and stations were built at cost, minorities are now being shut out 
because price tags are prohibitive. The minority preference policy 
applies only to the allocation of new licenses for new stations, not 
the licenses for existing stations that are being transferred at 
exorbitant rates each year. As such, the policy enables minorities 
to break into the industry on terms comparable to those on which 
nonminorities entered when broadcast licensing first began.

82 The Department of Justice contends that the 1982 amendments 
to the Communications Act, which authorized the FCC to grant a 
preference to minorities in the random award of licenses through 
lotteries, have no bearing on the similar preference granted in com­
parative proceedings. Brief of U.S. at 19 n.U. Yet the very legisla­
tive history of the 1982 amendments that the Department of Jus­
tice cites refers back to the reports and studies on which the FCC 
initially predicated the comparative proceeding preference. See 
Pub. L. No. 97-259, 96 Stat. 1087, 1094 (1982) (codified at 47 U.S.C. 
§ 309(1) (3 ) (A ) ) ; H.R, Conf. Rep. No. 765, 97th Cong., 2d Sess. 
43-45 (1982).



17

terest of remedying past wrongs and the “ forward- 
looking” interest of promoting diversity in broadcasting. 
This diversity interest is substantial and further supports 
the policy.

A. Forward-Looking Interests May Support the Use 
of Racial Preferences

This Court repeatedly has stated that the use of racial 
preferences may be justified only by a weighty govern­
mental interest.33 34 As the Court’s previous decisions indi­
cate, in most cases that interest will be a purely remedial 
one. However, there is no reason that a forward-looking 
interest cannot suffice, and the Court has never so held.84

33 Although that interest must be “compelling” in the case of a 
state or local government program, see Croson, 109 S. Ct. at 721, 
the precise standard applicable to a congressional program is not 
clear. In Fullilove, Justice Marshall (joined by Justices Brennan 
and Blackmun) stated that this interest must be “ important,”  448 
U.S. at 519, Justice Powell used “ compelling,” id. at 496, and Chief 
Justice Burger’s plurality opinion stated that the objective served 
by the program need only be “within the powers of Congress.” Id. 
at 473.

34 There is language in Croson that could be interpreted as limit­
ing the use of racial preferences to remedial contexts. See Croson, 
109 S. Ct. at 721 (“ [ujnless [racial classifications] are strictly 
reserved for remedial settings, they may in fact promote notions of 
racial inferiority and lead to politics of racial hostility” ). However, 
because the racial preference at issue in Croson was defended only 
on remedial grounds, the Court had no occasion to and did not 
decide whether forward-looking justifications might have sufficed. 
Moreover, construing Croson to preclude forward-looking justifica­
tions is at odds with Justice O’Connor’s acknowledgement that 
interests other than remedying past discrimination might be suffi­
ciently important to support race-conscious action. Wygant v. Jack- 
son Bd. of Educ., 476 U.S. 267, 286 (1986) (O’Connor, J., con­
curring) ( “And certainly nothing the Court has said today neces­
sarily forecloses the possibility that the Court will find other gov­
ernmental interests which have been relied upon in the lower courts 
but which have not been passed on here to be sufficiently ‘important’ 
or ‘compelling’ to sustain the use of affirmative action policies” ).



18

To the contrary, several Justices have acknowledged 
that the use of racial preferences might be supported by 
an important governmental interest other than remedying 
discrimination.35 These Justices recognized that in some 
contexts race-conscious action fosters values other than 
compensating minorities for past discrimination, and can 
“produce tangible . . . future benefits.” Croson, 109 S. Ct. 
at 731 n.l (Stevens, J., concurring).

This case involves another context in which race is rele­
vant for reasons above and beyond remedying past dis­
crimination. As explained in the following sections, the 
minority preference at issue serves the important for­
ward-looking interest of promoting the diversity of per­
spectives reflected in broadcasting.

B. The Promotion of Diversity of Perspectives in 
Broad casing Is a Substantial Interest

The promotion of diversity of viewpoints in broadcast­
ing is a substantial governmental interest. It is central 
to the values embodied in the First Amendment, and has 
always guided the allocation of broadcast licenses.36

The goal of diversity in broadcasting is at least as im­
portant as the goal of diversity in higher education, which 
Justice Powell, writing in Bakke, found sufficiently

35 See Bakke, 438 U.S. at 311-15 (opinion of Powell), J . ) ; Wygant, 
476 U.S. at 286 (O’Connor, J., concurring); id. at 313-14 (Stevens, 
J., dissenting); Croson, 109 S. Ct. at 730 & n.l (Stevens, J., con­
curring) ; cf. United States v. Paradise, 480 U.S. 149, 167-68 n.18 
(1987) (plurality opinion).

36 The “ public interest” standard that guides FCC decision­
making “necessarily invites reference to First Amendment prin­
ciples . . . and, in particular, to the First Amendment goal of 
achieving ‘the widest possible dissemination of information from 
diverse and antagonistic sources.’ ”  FCC v. National Citizens Comm, 
for Broadcasting, 436 U.S. 775, 795 (1978) (quoting CBS v. Demo­
cratic Nat’l Comm., 412 U.S. at 122 and Associated Press v. United 
States, 326 U.S. 1, 20 (1945)).



19

weighty to support race-conscious admissions policies in 
public universities. There, Justice Powell concluded that 
such action would further the strong First Amendment 
interest in promoting a diverse student body, which he 
reasoned would enhance a “ robust exchange of ideas.” 
438 U.S. at 313. As important as this interest is, it has 
direct ramifications only for that portion of our popula­
tion that attends college. In contrast, the mass media 
reach almost the entire population. For better or worse, 
radio and television have a “uniquely pervasive” influence 
on American life,37 and play a critical role in educating 
the public and promoting the exchange of ideas. There­
fore, Congress has good reasons for attempting to ensure 
that perspectives reflected through the broadcast media 
are not limited or distorted by the continuing effects of 
discrimination.

To the extent that there is any doubt about the impor­
tance of diversity in broadcasting, that doubt should be 
resolved in favor of the choice that Congress has made. 
While the Constitution may demand that courts conduct 
a searching inquiry to ensure that a racial preference is 
supported by a weighty goal, it does not authorize courts 
to substitute their own judgments for the considered and 
reasonable judgment of Congress. This is particularly 
true where, as here, Congress has acted in an area in 
which it has substantial power and expertise.

C. Congress Had Sufficient Basis to Link Diversity of 
Ownership With Diversity of Perspectives in Broad­
casting

The dissent below argued that the minority preference 
policy does not support the goal of enhanced diversity in 
broadcast programming, because there was no “basis for 
believing that minority ownership would lead to ‘minority 
programming’ in some sense that is both intelligible and

37 Sable Communications of California, Inc. v. FCC, 109 S. Ct. 
2829, 2837 (1989).



20

permissible.” 88 This is incorrect and misses the point 
of the policy. Congress had every reason to believe that 
the minority preference policy would, in fact, expand the 
diversity of perspectives reflected in broadcasting, and not 
just in programming. For it is not only programming 
but also perspective—which includes considerations other 
than simply what show to run or song to play—that is at 
the crux of the policy.

When the minority preference policy was begun, broad­
casting was basically an all-white industry, as it still is 
to a large extent today. This simple fact has had pro­
found consequences for the diversity of perspectives re­
flected in broadcasting. The inclusion of minority owners 
clearly would enhance that diversity. It is not “ stereo­
typing” to acknowledge that different racial and ethnic 
groups have unique perspectives that may be reflected in 
programming choices, selection of station managers, pre­
sentation of news, solicitation of advertisers, and commu­
nity relations.38 39 It is unrealistic to pretend otherwise. 
While in any particular case the proposition may prove 
false, in the aggregate the inclusion of minority owners 
has to make a difference.

The link between diversity in ownership and diversity 
in perspectives may not lend itself easily to empirical 
proof, but the Constitution requires only a close relation­
ship between means and ends, not a guarantee.40 This is

38 Winter Park Communications, Inc. v. FCC, 873 F.2d 347, 358 
(D.C. Cir. 1989) (Williams, J., dissenting), cert, granted sub nom. 
Metro Broadcasting, Inc. v. FCC, 110 S. Ct. 715 (1990).

39 Cf. T. Sowell, The Economics and Politics of Race 244 (1983) 
( “ [t]he most obvious fact about the history of racial and ethnic 
groups is how different they have been— and still are . . .” ).

40 In Bakke, Justice Powell did not require empirical proof that 
the admission of minority students to a medical school would in 
fact enhance the exchange of ideas or enrich the educational ex­
perience of the student body. For him, that common sense proposi­



21

particularly true when what is being reviewed is an act 
of Congress, which must make predictive judgments of 
the type at issue here all the time. The judicial task, 
therefore, should be to ensure that Congress had sufficient 
reason to believe that the racial preference would serve 
its purpose so that “ there is little or no possibility that 
the motive for the classification was illegitimate racial 
prejudice or stereotype.” Croson, 109 S. Ct. at 721. Here, 
Congress had ample reason to believe that including 
minority owners in the previously all-white broadcast in­
dustry would augment the diversity of viewpoints con­
veyed in broadcasting.41

HI. THE m i n o r i t y  p r e f e r e n c e  p o l i c y  s a t i s ­
f i e s  A N Y REASONABLE APPLICATION OF THE 
NARROWLY TAILORED TEST

Just as there should be deference to a determination by 
Congress that an important interest justifies the use of 
race-conscious measures, there should be deference to the 
means that Congress selects to serve that interest. For 
in both cases, Congress has special competence to act to

tion was enough. He explained that “ [a]n otherwise qualified 
medical student with a particular background—whether it be ethnic, 
geographic, culturally advantaged or disadvantaged—may bring to 
a professional school of medicine experiences, outlooks, and ideas 
that enrich the training of its student body and better equip its 
graduates to render with understanding their vital service to 
humanity.” Bakke, 438 U.S. at 314 (opinion of Powell, J.).

41 Congress did not rely on common sense alone. It had before it 
federal government findings on the consequences of having a mass 
media dominated by white ownership. See United States Commis­
sion on Civil Rights, Window Dressing on the Set: Women and 
Minorities in Television 2 (1977) ( “a mass medium dominated by 
whites will ultimately fail in its attempts to communicate with an 
audience that includes blacks” ) ; Kerner Commission Report, supra 
note 7, at 203 ( “ The media report and write from the standpoint 
of a white man’s world. . . . This may be understandable, but it is 
not excusable in an institution that has the mission to inform and 
educate the whole of our society” ).



22

remedy the consequences of discrimination in our society. 
Moreover, the choice of means is a peculiarly legislative 
function; while a court must review a race-conscious 
measure to ensure that it is narrowly tailored to meet its 
objective, the court should not substitute its judgment for 
the considered judgment of Congress. Indeed, this Court 
has stated: “ We are mindful that ‘ [i]n no matter should 
we pay more deference to the opinion of Congress than 
in its choice of instrumentalities to perform a function 
that is within its power.’ ” 42

In this case, Congress’ choice of means satisfies any 
reasonable application of the narrowly tailored test. Three 
general principles governing the narrowly tailored in­
quiry here deserve mention.

First, some burden on nonminorities is permissible. The 
dissent below, however, appears to endorse the “ unique 
opportunity”  approach taken by Judge Silberman in the 
Shurberg case, which also is currently before this Court.43 
Under that approach, it is unacceptable for a nonminority 
to be denied a particular license—a “ unique opportunity

42 Fullilove, 448 U.S. at 480 (opinion of Burger, C.J.) (quoting 
National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 
603 (1949)). See also Fullilove, 448 U.S. at 480 (opinion of Burger,
C.J.) ( “stress[ing] the limited scope of the Court’s [narrowly 
tailored] inquiry” in cases involving “the legislative authority of 
Congress” ) ; id. at 515 n.14 (Powell, J., concurring) (narrowly 
tailored analysis “vari[es] with the nature and authority of [the] 
governmental body” ). Notwithstanding these basic tenets, which 
figure prominently in the opinions of Chief Justice Burger and 
Justice Powell in Fullilove, the Department of Justice makes the 
bold assertion that “ deference is not appropriate in deciding whether 
the particular remedy chosen by Congress is ‘narrowly tailored’ 
. . . .”  Brief of U.S. at 15. What is most startling is that the 
Department of Justice claims that the opinions of Chief Justice 
Burger and Justice Powell support this proposition.

43 Shurberg Broadcasting of Hartford, Inc. v. FCC, 876 F.2d 902, 
943 (D.C. Cir. 1989), cert, granted sub nom. Astroline Communica­
tions Co. v. Shurberg Broadcasting of Hartford, Inc., 110 S. Ct. 
715 (1990).



23

to own a broadcasting station”— because of a minority 
preference given to a competitor. Shurberg, 876 F.2d at 
917. Judge Silberman claimed that the minority prefer­
ence at issue in Shurberg was unconstitutional because 
“ [i]t is a Hartford station Shurberg wants and, after all 
is said and done, he has been absolutely denied an op­
portunity to compete for one merely because of his race.” 
Id. at 918. Similarly, the dissent below complained that 
“ [h] ere, as in Shurberg, Metro was denied a comparative 
hearing on the only new license currently being offered 
in the Orlando area.”  Winter Park, 873 F.2d at 368 
(Williams, J., dissenting).

This approach goes overboard in its attempt to protect 
the interests of nonminorities. In any case involving a 
minority preference, the plaintiff will always be able to 
claim that he did not get a particular thing that he 
wanted because of the preference. For example, some non­
minority contractors undoubtedly lost out on contracts as 
a result of the minority preference program approved in 
Fullilove. But, as the Court declared in Fullilove: “ It is 
not a constitutional defect in this program that it may 
disappoint the expectations of nonminority firms. When 
effectuating a limited and properly tailored remedy to 
cure the effects of prior discrimination, such a ‘sharing 
of the burden’ by innocent parties is not impermissible.” 44

Here, the burden shared by nonminorities is acceptable. 
The minority preference is only one consideration in the 
comparative hearing process, and does not automatically 
preclude nonminorities from acquiring broadcast licenses. 
Moreover, a broadcast license does not have the sort of 
personal value that demands utmost protection. Unlike 
the layoffs of individual teachers at issue in Wygant, no 
one’s likelihood is at stake. Nor does the minority pref­

44 Fullilove, 448 U.S. at 484 (opinion of Burger, C.J.). See also 
Wygant, 476 U.S. at 280-81 (plurality opinion) ( “ [a]s part of this 
Nation’s dedication to eradicating racial discrimination, innocent 
persons may be called upon to bear -some of the Burden of the 
remedy” ).



24

erence policy upset anybody’s “ firmly rooted expecta­
tion [s],” 45 since it affects only those who are competing 
for broadcast licenses, not those who already own them. 
Finally, ownership of a broadcast license has always been 
considered a privilege; Congress and the FCC may deny 
licenses or place restrictions on license owners as required 
by the public interest.46 The failure to obtain such a 
privilege could hardly be deemed a substantial burden.

Second, the narrowly tailored test should not require 
that minority preferences benefit only minorities who are 
shown to be actual “ victims” of discrimination.47 Such a 
requirement would be illogical in a case such as this, 
where the minority preference serves a goal beyond rem­
edying discrimination. But even where a minority pref­
erence is purely remedial, the “victims only” requirement 
conflicts with this Court’s recognition that minority pref­
erences need not be designed to remedy individual cases 
of discrimination. Justice O’Connor observed in Wygant:

[T]he Court has forged a degree of unanimity; it is 
agreed that a plan need not be limited to the remedy­
ing of specific instances of identified discrimination 
for it to be deemed sufficiently ‘narrowly tailored,’ or 
‘substantially related,’ to the correction of prior dis­
crimination . . . .48

As this statement acknowledges, and as Congress has 
recognized, group remedies can be appropriate because

45 Johnson v. Transportation Agency, 480 U.S. 616, 638 (1987).
46 See generally Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 

386-92 (1969).
47 Some courts have imposed such a requirement. See, e.g., 

Shurberg, 876 F.2d at 912 (opinion of Silberman, J .) ; Main Line 
Paving Co. v. Philadelphia Bd. of Educ., 725 F. Supp. 1349, 1361 
(E.D. Pa. 1989); see also Winter Park, 873 F.2d at 368 (Williams, 
J., dissenting).

48 Wygant, 476 U.S. at 287. Cf. Local 28 of Sheet Metal Workers’ 
Int’l Ass’n v. EEOC, 478 U.S. 421, 482 (1986) (under Title VII, 
court-ordered race-conscious relief need not be limited to actual 
victims of discrimination).



25

racial and ethnic discrimination is designed to and has in 
fact oppressed and stigmatized groups. Decades of egre­
gious discrimination against black people, for example, 
has affected all black people. When a black person bene­
fits from a minority preference, black people as a group 
move one step closer to overcoming the effects of that dis­
crimination. Requiring beneficiaries of minority prefer­
ences to prove that they personally have been victims of 
discrimination simply misses the point of what minority 
preferences are trying to remedy.

The argument that minority applicants for broadcast 
licenses are well-off and do not need preferences misses 
the mark for the same reason. As a group, minorities are 
still underrepresented in the pool of qualified applicants 
for broadcast licenses, as a result of discrimination. Con­
gress determined that without preferences, some minority 
applicants will win licenses, but minorities as a group will 
still be greatly underrepresented among broadcast owners, 
and diversity will suffer. Only the extra push that a pref­
erence provides will make up the ground lost by past 
discrimination.

Third, Congress must have some discretion in its con­
sideration of race-neutral alternatives. As we have ar­
gued, Congress has unique power and competence to rem­
edy the consequences of society-wide discrimination, and 
to decide that race-conscious measures are appropriate. 
Of course, where the goals of a race-conscious measure 
clearly may be adequately served by race-neutral means, 
the race-conscious measure should not be preferred. But 
when the efficacy of race-neutral alternatives is not so 
clear, Congress should not be stripped of its discretion to 
choose how best to implement its remedial policies.49 In 
such situations, Congress certainly should not be required 
to exhaust race-neutral alternatives before proceeding 
with race-conscious action; indeed, such a requirement

49 See Fullilove, 448 U.S. at 508 (Powell, J., concurring) (Con­
gress should not be required to choose the least restrictive means 
of implementing its goals).



26

was not even imposed on state and local governments in 
Croson. See 109 S. Ct. at 728.

In this case, Congress reasonably determined that the 
minority preference in comparative proceedings was nec­
essary. The policy was adopted only after ten years of 
unsuccessful regulatory efforts to rectify the acute under­
representation of minority owners in broadcasting.50 This 
informed judgment of Congress was reasonable. It is 
entitled to deference by this Court.

CONCLUSION

For the reasons stated herein, the decision of the court 
of appeals should be affirmed.

Respectfully submitted,

John  Payton  *
Mark  S. H ersh 
M ichael C. Small 

W ilmer, Cutler & P ickering 
2445 M Street, N.W. 
Washington, D.C. 20037-1420 
(202) 663-6000

R obert F. Mullen 
David S. Tatel 

Co-Chairmen 
Norman R edlich 

Trustee
Barbara R. A rn w in e  
Paul H oltzman 

Law yers ’ Committee for 
Civil R ights U nder Law  

1400 Eye Street, N.W. 
Washington, D.C. 20005 
(202) 371-1212

March 6,1990 * Counsel of Record

50 See Statement of Policy on Minority Ownership of Broadcast­
ing Facilities, 68 F.C.C.2d 979, 979-80 (1978). Because of First 
Amendment restrictions, direct regulation of programming content 
would be unconstitutional.



£4 .;^

 ̂ 1 * ^  * a * *■ Wf HI V£

^ilSst WimmMm^rn..... - ... $mlsmm...Ill iHil Jfr*.. m