Lutheran Church-Missouri Synod v. FCC and the Missouri State Conference of the NAACP Brief for the United States as Amicus Curiae

    ORAL ARGUMENT IS SCHEDULED ON JANUARY 12, 1998

No. 97-1116

IN THE UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT

THE LUTHERAN CHURCH-MISSOURI SYNOD
Appellant,

v .
FEDERAL COMMUNICATIONS COMMISSION,

Appellee,
MISSOURI STATE CONFERENCE OF BRANCHES 

OF THE NAACP, et al.,
Intervenors

APPEAL FROM AN ORDER OF THE 
FEDERAL COMMUNICATIONS COMMISSION

FINAL BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

ISABELLE KATZ PINZLER
Acting Assistant Attorney General

MARK L. GROSS 
LISA WILSON EDWARDS 
Attorneys
Department of Justice 
P.O. Box 66078
Washington, D.C. 20035-6078



CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES
A. Parties and Amici

Except for the United States, which is an amicus on appeal, 
all parties, intervenors, and amici appearing before the district 
court and this Court are listed in appellant's brief.
B. Rulings Under Review

References to the rulings at issue appear in appellant's 
brief.
C. Related Cases

Counsel for the United States is not aware that this case 
has previously been before this Court or any other court, nor is 
counsel aware of any related cases.



TABLE OF CONTENTS

PAGE
INTEREST OF THE UNITED STATES ................................  1
ISSUE PRESENTED.............................................. 2
STATUTES AND REGULATIONS ....................................  2
STANDARD OF REVIEW ..........................................  2
STATEMENT OF THE C A S E ......................................  2

A. F a c t s ................................................2
B. The FCC's EEO Regulation And Enforcement Practices . . 5
C. Administrative Proceedings ..........................  9

1. ALJ Decision......................................9
2. Review Board Decision ........................ 12
3 . FCC Decision.....................................13

SUMMARY OF THE ARGUMENT.......................................17
ARGUMENT:

I. STRICT SCRUTINY ANALYSIS DOES NOT APPLY TO THE
FCC'S RACE-NEUTRAL EEO REGULATION ................  18

II. EVEN IF STRICT SCRUTINY APPLIES, THE EEO REGULATION 
IS CONSTITUTIONAL BECAUSE IT IS NARROWLY TAILORED 
TO SATISFY A COMPELLING INTEREST OF THE FCC . . . .  26
A. The FCC's EEO Regulation Serves A Compelling

Governmental Interest ........................  26
B. The FCC's EEO Regulation Is Sufficiently

Narrowly Tailored ............................  32
CONCLUSION................................................... 35

- 1 -



TABLE OF AUTHORITIES
CASES: PAGE

* Adarand Constructors. Inc, v. Pena.
515 U.S. 200 (1995)................................ pass i m

Billish v. City of Chicago. 962 F.2d 1269 (7th Cir. 1992), 
on rehearing, 989 F.2d 890 (7th Cir.) (en banc), 
cert, denied, 510 U.S. 908 (1993)   25

City of Richmond v. j.a . Croson Co..
488 U.S. 469 (1989) ......................  20, 21, 26, 32

Coomes v. Commissioner of Internal Revenue. 572 F.2d 554
(6th Cir.), cert, denied, 439 U.S. 854 (1978) ........  15

Coral Constr Co. v. King County. 941 F.2d 910
(9th Cir. 1991), cert, denied, 502 U.S. 1033 (1992) . . 25

Corporation of the Presiding Bishop v. Amos.
483 U.S. 327 (1987)   14

Cunico V. Pueblo Sch. Dist. No. 60. 917 F.2d 431
(10th Cir. 1990).....................................  21

ECC v. League of Women Voters. 468 U.S. 364 (1984) ........  29
Florida State Conf. of Branches of the NAACP v. ECC,

24 F. 3d 271 (D.C. Cir. 1994)..........................  23
Fullilove V. Klutznick. 448 U.S. 448 (1980)............  28, 32
Heller v. DP£, 509 U.S. 312 (1993) ........................  19
Hopwpod v. State of Texas. 78 F.3d 932 (5th Cir.),

cert, denied, 116 S. Ct. 2580 (1996)..................  28
King's Garden. Inc, v. ECC, 498 F.2d 51 (D.C. Cir.),

cert, denied, 419 U.S. 996 (1974) ..............  9, 13, 14
Metro Broadcasting. Inc, v. ECC, 497 U.S. 547 (1990) . . 27, 28
Monterey Mechanical Co. v. Wilson. No. 96-16729,

1997 WL 538757 (9th Cir. Sept. 3, 1997) ..........  24, 34

* Authorities upon which we chiefly rely are marked with asterisks.

-ii-



CASES (continued): PAGE
NAACP v. Federal Power Comm'n. 425 U.S. 662 (1976) ........ 30
Peightal v. Metropolitan Dade County. 26 F.3d 1545

(llth Cir. 1994)..................................  24, 25
Plyler v. Dos, 457 U.S. 202 (1982) ........................  19
Podberesky v. Kirwan. 956 F.2d 52 (4th Cir. 1992).......... 21
Red Lion Broadcasting Co. v. FCC. 395 U.S. 367 (1969) . . 28, 29
Regents of the Univ. of Cal, v. Bakke,

438 U.S. 265 (1978) ..................................  27
Schweiker v. Wilson. 450 U.S. 221 (1981) ..................  19
SEC v. Life Partners. Inc.. 87 F.3d 536 (D.C. Cir. 1996) . . .  2
Taxman v. Board of Educ.. 91 F.3d 1547 (3d Cir. 1996)

(en banc), petition for cert, granted,
117 S. Ct. 2506 (1997)................................  28

TV9. Inc. v. FCC. 495 F.2d 929 (D.C. Cir. 1973),
cert, denied, 419 U.S. 986 (1974) ....................  31

West Mich. Broad. Co. v. £££, 735 F.2d 601 (D.C. Cir. 1984),
cert, denied, 470 U.S. 1027 (1985)....................  31

ADMINISTRATIVE DECISIONS, ORDERS, AND NOTICES:
Amendment of Part 73 of the Commission's Rules Concerning 

Equal Employment Opportunity in the Broadcast Radio 
and Television Services. 2 FCC Red. 3967 (1987) ........ 8

Channel 5 Pub. Broad.. Inc.. 10 FCC Red. 10388 (1995) ........ 8
Enterprise Media of Toledo. L.P.. 12 FCC Red. 3920 (1997) . . 24
In re Applications of The Lutheran Church-Missouri Synod.

Hearing Designation Order. 9 FCC Red. 914 (1994) ........ 3
In re Applications of The Lutheran Church-Missouri Synod.

Initial Decision. 10 FCC Red. 9880 (ALJ 1995) . . . passim
In re Applications of The Lutheran Church-Missouri Synod.

Decision. 11 FCC Red. 5275 (Rev. Bd. 1996) . . . .  3, 12, 13

-in-



ADMINISTRATIVE DECISIONS, ORDERS, AND NOTICES (cont'd): PAGE
IH-_re_JtoPlications of The Lutheran Church-Missouri Synod. 

Memorandum Opinion and Order.
12 FCC Red. 2152 (1997) ..................  13, 14, 15, 16

Nelson Enters. . Inc.. 12 FCC Red. 5234 (1997)................ 8
Nondiscrimination in Employment Practices of Broadcast

Licensees. 23 FCC 2d 430 (1970) ......................  30
Nondiscrimination in the Employment Policies and Practices

of Broadcast Licensees. 54 FCC 2d 354 (1975).......... 30
Nondiscrimination in Employment Practices.

60 FCC 2d 226 (1976)..................................  30
Office of Legal Counsel, Department of Justice,

Memorandum to General Counsels (June 28, 1995) ........ 24
Order and Notice of Proposed Rule Making.

11 FCC Red. 5154 (1996) ....................... 6, 7, 8, 31
Pappas Telecasting Inc. . 11 FCC Red. 2945 (1996) .......... 24
Petition for Rulemaking to Require Broadcast Licensees to 

Show Nondiscrimination in Their Employment Practices.
18 FCC 2d 240 (1969)..................................  29

Resort Broad. Co.. 12 FCC Red. 7785 (1977) ................  24
CONSTITUTION AND STATUTES:
Commerce Clause, Art. I, § 8, Cl. 3 ........................ 29
First Amendment............................................  14
Establishment Clause ....................................  14

Fifth Amendment...................................... 2, 14-15
Section 1, Equal Protection Clause ........................  2

Cable Communications Policy Act of 1984, Pub. L. No. 98-549,
§ 634, 98 Stat. 2797 (1984)..............................  30

Civil Rights Act of 1964, Title VII,
42 U.S.C. 2000e £t. seq.................................14, 28
Section 702, 42 U.S.C. 2 0 0 0 e - l .............................14

- IV-



Communications Act of 1934,
47 U.S.C. 307 ........................................  29
47 U.S.C. 309 (k) ...................................... ' 30

Religious Freedom Restoration Act of 1993,
42 U.S.C. 2000bb-1 .........................................15

47 U.S.C. 334 ..............................................  29

REGULATIONS:

47 C.F.R. 73.1015.................................. 12, 13, 15
* 47 C.F.R. 73.2080   passim
47 C.F.R. 73.2080(a)   5
47 C.F.R. 73.2080(b) ..................................  5,6 9
47 C.F.R. 73.2080(b)(1).................................. '9/22
47 C.F.R. 73.2080(b)(3)................................ 32̂  33
47 C.F.R. 73.2080 (c) . ................................. 6 9
47 C.F.R. 73.2080(c) (1)-(5)..............................  6
47 C.F.R. 73.2080 (c) (1) (ii)...............................  10
47 C.F.R. 73.2080 (c) (2) : ...................................... 10
47 C.F.R. 73.2080(c)(3)...................................... 11
47 C.F.R. 73.2080 (c) ( 5 ) ....................................... 11
47 C.F.R. 73.3612 .......................................... 31
LEGISLATIVE HISTORY:

H.R. Rep. No. 934, 98th Cong., 2d Sess.
(1984 U.S.C.C.A.N. 4722)   31

STATUTES (continued): PAGE

-v-



GLOSSARY
EEO = 
FCC = 
RFRA =

Equal employment opportunity 
Federal Communications Commission
Religious Freedom Restoration Act of 1993, 42 U.S C 
2000bb-l



IN THE UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 97-1116
THE LUTHERAN CHURCH-MISSOURI SYNOD

Appellant,
v.

FEDERAL COMMUNICATIONS COMMISSION,
Appellee,

MISSOURI STATE CONFERENCE OF BRANCHES 
OF THE NAACP, et al.,

Intervenors

APPEAL FROM AN ORDER OF THE
FEDERAL COMMUNICATIONS COMMISSION

FINAL BRIEF FOR THE UNITED STATES AS AMICUS CURIAE 

INTEREST OF THE UNITED STATES
This case involves a constitutional challenge to the Equal 

Employment Opportunity (EEO) regulation, 47 C.F.R. 73.2080, 
administered by the Federal Communications Commission (FCC). The 
regulation requires television and radio broadcasters to engage 
in efforts to establish and maintain a continuing program of 
equal employment opportunity, and to encourage qualified 
minorities and women to apply for employment positions at their 
stations. The FCC evaluates a broadcaster's compliance with the 
EEO regulation upon the filing of an application for renewal of 
the broadcaster's license. The United States has an interest in 
this case because the issue presented concerns the 
constitutionality of a federal regulation that seeks to ensure



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equal employment opportunity and that is administered by a 
federal agency. Other agencies have adopted similar employment 
policies to ensure equal opportunity in the workplace. Thus, the 
Court's decision in this case could affect the employment 
practices of federal agencies.

ISSUE PRESENTED
We will address only the following question:
Whether the FCC's EEO regulation violates the Equal 

Protection Clause of the Fifth Amendment to the Constitution.
STATUTES AND REGULATIONS

All applicable statutes and regulations are contained in the 
appellant's and the appellee's briefs.

STANDARD OF REVIEW
The FCC's ruling that its EEO regulation is race-neutral and 

not subject to strict scrutiny analysis is a question of law 
subject to de novo review. See SEC v. Life Partners. Inc., 87 
F.3d 536, 541 (D.C. Cir. 1996).

STATEMENT OF THE CASE
A. Facts.

The Lutheran Church-Missouri Synod (hereinafter Church or 
licensee) operates two broadcast stations in Clayton, Missouri. 
KFUO(AM) is a day-time only, noncommercial station that 
broadcasts religious programming, and KFUO-FM is a full-time 
commercial station broadcasting classical music with some 
religious programming. Initial Decision, 10 FCC Red. 9880 56 
(ALJ 1995)(J .A. 45). The stations are located on the campus of



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Concordia Seminary, which is operated by the Church. Id. at 9881 
57(J.A. 46). In September 1989, the Church filed applications to 
renew its licenses for both stations. The licenses were set to 
expire in February 1990. Decision, 11 FCC Red. 5275, 5276 55 
(Rev. Bd. 1996)(J.A. 40). Shortly after the Church filed its 
renewal application, the FCC requested additional information 
about the stations' employment recruitment efforts (J.A. 40).
The supplemental data submitted by the Church indicated that 
during the seven-year license term —  February 1, 1983 to 
February 1, 1990 —  the licensee “received no minority referrals” 
(J.A. 40).

In January 1990, the Missouri State Conference of Branches 
of the NAACP, the St. Louis Branch of the NAACP, and the St.
Louis County Branch of the NAACP (collectively NAACP), petitioned 
the FCC to deny the Church's license renewal, asserting 
noncompliance with the FCC's EEO regulations. Id. at 5275-5276 
551, 6 (J.A. 39-40). The FCC sought additional information as to 
the Church's hiring practices, and learned that the Church 
required applicants for all jobs to be experienced in Lutheran 
doctrine, and for salespersons at the FM station also to have 
“classical music expertise.” Hearing Designation Order, 9 FCC 
Red. 914, 922 5523, 25, 26 (1994)(J.A. 90, 98-99).
Representations made by the licensee in explaining its 
recruitment efforts and job requirements raised further questions 
with the FCC “as to whether and to what extent the licensee 
engaged in misrepresentation or lack of candor” regarding its EEO



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program. Id, at 925 530(J.A. 101). The case was designated for 
a hearing. Id. at 925 531(J.A. 101).

Evidence at the administrative hearing showed that over the 
seven-year license term, the two stations averaged 20 full-time 
and 11 part-time employees. Initial Decision, 10 FCC Red. at 
9889 5568, 70(J.A. 54). During the seven-year license term, the 
AM and FM stations made 43 full-time hires, and sought referrals 
by placing job advertisements for 30 of those hires (69.8%). of 
the full-time hires, 25 (58.1%) were female and seven (16.3%) 
were minority. Of the seven minority hires, two were hired after 
January 2, 1990, the date that the NAACP filed its petition to 
deny renewal of the licenses. Id. at 568(J.A. 54). During the 
license term, the station hired 41 part-time employees, and 
sought referrals for 26 (63.4%) of those hires. Of the 26 
referrals, 21 (80.7%) were from the Concordia Seminary. Of the 
41 part-time hires, all were white and seven (17%) were female. 
IcL_ at 570 (J. A. 54) .

The operations manager testified at the hearing that the 
licensee relied on “contacts at local Lutheran churches or 
agencies [including state employment agencies] to find 
applicants" for job openings. Id. at 9888, 9890 5566, 73(J.A. 
53-55); see also id. at 9892 5581-83(J.A. 57)(describing 
religious publications and organizations where the licensee 
advertised job openings). The Church also “believed that it was 
essential or highly desirable for announcers and salespersons for 
the FM station to be knowledgeable about classical music.” id.



M E M O R A N D U M

TO: Ted Shaw
Norman Chachkin 
Steve Ralston v/'
David Goldberg 
Cathy Powell 
Olati Johnson

FROM: Paul S o n n ^ "

RE: Lutheran Church-Missouri Synod v. FCC

DATE: April 22, 1998

MF

Attached are copies of the briefing in the D.C. Circuit in Lutheran Church-Missouri 
Svnod v. FCC, last week’s horrible decision concerning the FCC’s very modest EEO 
program for regulated broadcasters.

Also attached are papers concerning a pending case, Safeco Insurance Co. v. City oj 
White House, involving another very modest affirmative action program: the EPA’s
requirement that, on EPA-funded projects, contractors solicit bids from minority 
subcontractors. This is a pure outreach program, which imposes no requirements 
concerning the ultimate awarding of the subcontracts, and makes use of no numerical goals 
of any sort. An appeal from a favorable district court ruling is currently being briefed in 
the Sixth Circuit.



-5-
at 9900 5136(J.A. 65). During the license term, the FM station 
hired 15 salespersons, but only eight of the 15 persons had some 
classical music background or experience working at a classical 
music station. Id. at 9901 5145(J.A. 66). During the license 
term, the Church was informed by its counsel of the FCC's EEO 
requirements (id. at 9892-9893 5585-87, 92(J.A. 57-58)), and 
during the fall of 1988, the FM station's general manager 
attended a meeting by the Missouri Broadcasters Association where 
the EEO requirements were discussed. Id. at 9894 593(J.A. 59).
B. The FCC's EEO Regulation And Enforcement Practices.

The FCC's EEO regulation requires that licensees afford 
“equal opportunity in employment” to all qualified persons and 
prohibits discrimination in employment by licensees because of 
race, color, religion, national origin or sex. 47 C.F.R. 
73.2080(a). The regulation requires broadcasters to “establish, 
maintain, and carry out a positive continuing program of specific 
practices designed to ensure equal opportunity in every aspect of 
station employment.” 47 C.F.R. 73.2080(b). In order to 
facilitate equal employment opportunity at all levels of hiring 
and promotion, the regulation directs licensees to: (i) inform
station managers of their responsibilities to ensure vigorous 
enforcement of its policy of equal opportunity; (ii) inform 
employees and recognized employee organizations of the station's 
EEO policy; (iii) communicate its EEO policy to sources of 
qualified applicants without regard to race, color, religion, 
national origin or sex; (iv) conduct a continuing program to



-6-
exclude unlawful forms of discrimination; and (v) conduct a 
continuing review of job structure and employment practices. 47
C.F.R. 73.2080(b).

The regulation also reguires licensees to engage in specific 
employment practices to ensure egual opportunity in the 
competition for job openings at broadcast stations. Licensees 
are directed to engage in the following “to the extent possible, 
and to the extent that they are appropriate in terms of the 
station's size, location, etc.” (47 C.F.R. 73.2080(c)):

(1) Disseminate its equal opportunity program to job 
applicants and employees * * * * *
(2) Use minority organizations, organizations for 
women, media, educational institutions, and other 
potential sources of minority and female applicants, to 
supply referrals whenever job vacancies are available 
in its operation * * * * *
(3) Evaluate its employment profile and job turnover 
against the availability of minorities and women in its 
recruitment area * * * * *
(4) Undertake to offer promotions of qualified 
minorities and women in a nondiscriminatory fashion to 
positions of greater responsibility [and] * * * * *
(5) Analyze its efforts to recruit, hire, and promote 
minorities and women and address any difficulties 
encountered in implementing its equal employment 
opportunity program.

Section 73.2080(c) gives licensees guidance on satisfying each of 
these obligations. 47 C.F.R. 73.2080(c)(1)-(5).

The FCC characterizes its EEO program as “an efforts-based 
approach to assessing EEO compliance." Order and Notice of 
Proposed Rule Making, n  fcc Red. 5154, 5158 f7 (1996) (1996 
Notice). The agency does not require licensees to employ



-7-
minorities or women at parity with their representation in the 
local labor force, or indeed to do any race-based hiring. 
Moreover, the agency does not require that a licensee's applicant 
pool achieve any particular level of racial balance. Instead, 
the FCC focuses on licensees' efforts to contact sources of 
referral for qualified minority and female candidates for job 
openings at stations, and calls for “self-analysis of [the 
licensee's] outreach program." Ibid. The FCC's EEO policy 
objective is to ensure that a licensee's method of notifying the 
public of job vacancies include a diverse range of persons, 
minority and non-minority, men and women, in order to give 
broadcasters a wide pool of qualified persons from which to 
choose in making employment decisions. Id. at 5158-5159.

The FCC undertakes a two-step process in evaluating a 
licensee's EEO compliance. First, the agency reviews the 
station's EEO program as described in the renewal application, 
looking at “recruitment sources, minority and female referrals 
received, and the licensee's analysis of the effectiveness of its 
EEO efforts.” 11 FCC Red. at 5150 f9. The FCC also compares the 
composition of the station's workforce with the relevant labor 
force to determine whether the agency's processing guidelines are 
met.17 If this first stage of review indicates that the

17 The FCC's processing guidelines rely on data for the 
relevant labor force in the metropolitan statistical area where 
the station is located. Id. at 5160 n.19. Stations with five to 
10 full time staff members satisfy the guidelines where minority 
and female representation in the overall staff is “at least 50% 
of that of the relevant labor force, and on their upper-level

(continued...)



-8-

station's EEO efforts are satisfactory, the station will be found 
in compliance. If not, the FCC will engage in a second, more 
detailed analysis of the station's employment practices by 
reguesting additional information to determine whether the 
station notifies sources of minority and female referrals when 
job vacancies occur, and engages in continuous self-assessment of 
its EEO program. Ibid. The focus of the FCC's review is to 
ensure that a station's outreach efforts include minorities and 
woman as well as nonminorities and men.2/ Stations that engage 
in sufficient outreach, including efforts to reach minorities and 
women, even though their workforce may not reflect a commensurate 
level of minority and female employees, will be deemed in 
compliance with the regulation as long as their employment 
practices nevertheless are nondiscriminatory. See Channel 5 Pub. 
Broad.. Inc., 10 FCC Red. 10388 513 (1995) (despite failure to 
meet the agency's processing guidelines, licensee satisfies EEO 
requirements based on efforts to recruit minorities and women); 
Nelson Enters.f Inc., 12 FCC Red. 5234 59 (1997).

- (...continued)
staffs is at least 25% of that of the relevant labor force." Id. 
at 5160 510. Stations with 11 or more full-time staff satisfy 
the guidelines where minority and female representation of the 
staff “is at least 50% of that of the relevant labor force for 
both overall and upper-level job categories.” Ibid. Licensees 
are not bound to adhere to these guidelines in their hiring in 
order to satisfy the EEO rule.

- In 1987, the FCC amended its EEO rules to de-emphasize 
the use of statistics in measuring EEO compliance, and instead to 
focus on the licensee's overall efforts to administer its 
employment practices in a nondiscriminatory manner. See 
Amendment of Part 73 of the Commission's Rules Concerning Equal 
Employment Opportunity in the Broadcast Radio and Television 
Services. 2 FCC Red. 3967 (1987).



-9-
C. Administrative Proceedings.

1. ALJ Decision. After a five-day hearing, the ALJ 
determined that although the Church did not engage in intentional 
discrimination against any person, it gave an improper hiring 
preference to Lutheran church members for positions that were not 
reasonably connected with the espousal of the Church's views, in 
violation of King's Garden. Inc, v. FCC, 498 F.2d 51 (D.C. Cir.), 
cert, denied, 419 U.S. 996 (1974). Initial Decision, 10 FCC Red. 
at 9907 5193(J.A. 72). In Kina's Garden, the court of appeals 
upheld the FCC's rule that exempted employment connected with 
espousal of a licensee's religious views from the agency's EEO 
regulations, but required enforcement of the rule with respect to 
job positions that have no substantial connection with program 
content or positions connected with programs having no religious 
dimension. 498 F.2d at 60-61.

Further, the ALJ determined that the licensee's EEO efforts 
“though flawed, were acceptable" for the first half of the 
license term (February 1983 to August 1987), but that the 
Church's efforts were “unsatisfactory” and violated 47 C.F.R. 
73.2080(b) and (c) during the second half (August 1987 to 
February 1990) in various respects. 10 FCC Red. at 9907 
5193(J.A. 72). The ALJ determined that, during the second half 
of the license term, no management level employee implemented an 
effective or consistent EEO program, nor was any management level 
employee instructed to do so, in violation of 47 C.F.R. 
73.2080(b)(1). 10 FCC Red. at 9911 5218(J.A. 76).



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The ALJ also found that the employment application used by 

the stations did not inform prospective employees that 
discrimination was prohibited, in violation of 47 C.F.R.
73.2080(c) (1) (ii) . Instead, the application contained a 
statement that the Church “retained the right to give hiring 
preferences to persons who were members in good standing of a 
[Lutheran congregation].” Id. at 9911 5219(J.A. 76). As a 
result, the ALJ found that “prospective employees were given no 
notice of the Stations' EEO policies, and the employment 
application contained a statement that was sguarely contrary to 
the Commission's EEO policies” (J.A. 76).

The ALJ also determined that efforts to solicit the 
assistance of sources that could result in minority applicants 
were “irregular, and were generally unsuccessful in attracting 
minorities to the Stations," in violation of 47 C.F.R. 
73.2080(c)(2). Id. at 9911 5220(J.A. 76). The ALJ found that 
although in July 1989 the licensee sent letters to 10 local 
universities and personnel agencies requesting minority and 
female referrals, the letters mentioned no specific job openings, 
and indicated that the station would inform the addressees once 
employment opportunities arose. The ALJ observed that although 
nine full-time and five part-time positions later arose, the 
licensee failed to make further contact with these organizations, 
and none of the letters resulted in referrals of minority 
applicants (J.A. 76).

The ALJ also determined that the stations failed formally to



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evaluate their employment profile and job turnover against the 
availability of minorities and women in their recruitment area, 
in violation of 47 C.F.R. 73.2080(c)(3). Id. at 9912 5221(J.A. 
77). Finally, the ALJ determined that the licensee failed to 
engage in continuing review of the stations' job structures, and 
failed to evaluate their efforts to recruit or hire minorities, 
in violation of 47 C.F.R. 73.2080(c)(5). Id. at 9912 ?222(J.A. 
77). As a result of the stations' noncompliance with the EEO 
regulations, the ALJ imposed EEO reporting c o n d i t i o n s id. at 
9916 ffl252-253, 9921 5282(J.A. 81, 86). The ALJ stated that 
these reporting conditions will afford the stations the 
opportunity to put into place an EEO program that is in 
compliance with the FCC's regulations, and enable the Commission 
to review the station's EEO efforts periodically. Id. at 9916 
5253(J.A. 81).

The ALJ also determined that the Church engaged in acts of 
misrepresentation and/or lack of candor in the following ways:
(1) through statements made to the Commission with respect to the 
minority recruitment program detailed in its 1989 renewal 
application, and (2) by informing the Commission that knowledge 
of classical music was required for salespersons at the FM

- The ALJ ordered the licensee to submit four reports in 
six-month intervals providing the following: a list of persons
hired and those who applied for job openings during the reporting 
period, including their referral or recruitment source, job 
title, part-time or full-time status, job classification, date of 
hire, sex and race or national origin. 10 FCC Red. at 9921 
5282(J.A. 86). The ALJ also required the licensee to provide a 
narrative statement as to its efforts to recruit minorities for 
positions filled during the respective six-month reporting 
periods, including recruitment sources utilized, and whether any 
applicants declined offers of employment. Id. at 9922 5282(J.A. 
87) .



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station, in violation of 47 C.F.R. 73.1015. Id. at 9912 
f223(J.A. 77). As a result of these misrepresentations, the ALJ 
imposed a forfeiture in the amount of $50,000. Id. at 9917-9918 
5257(J.A. 82-83).

2. Review Board Decision. On petition for review, the
FCC's Review Board affirmed the ALJ's determination that the
licensee's EEO program was in noncompliance from August 1987 to
February 1990. See Decision, 11 FCC Red. at 5277 514(J.A. 41).
The Review Board affirmed the imposition of reporting
requirements for its noncompliance with 47 C.F.R. 73.2080, and in
addition subjected the Church's license to a short-term renewal
ending January 1, 1997, one month earlier than the expiration of
the current license term. Id. at 5281 5533-34(J.A. 43B).

The Review Board also affirmed the ALJ's determination that
the licensee lacked candor in describing its EEO program in the
1989 renewal application. Decision, 11 FCC Red. at 5278-
528 0(J.A . 42-43). Rather than respond to questions posed by the
FCC in its renewal application, the licensee provided the
following narrative statement (id. at 5278 520(J.A. 42)):

When vacancies occur, it is the policy of KFUO and KFUO-FM 
to seek out qualified minority and female applicants. We 
deal only with employment services, including state 
employment agencies, which refer job candidates without 
regard to their race, color, religion, national origin or 
sex. We contact the various employment services and 
actively seek female and minority referrals and we 
specifically request them to provide us with qualified 
female and minority referrals.

The Review Board determined that this statement represented to 
the Commission that the licensee had “a model program and sought 
out qualified minority and female applicants on a regular basis



-13-
from sources likely to refer such applicants." Id. at 5279 
522(J.A. 43). The evidence adduced at the hearing disclosed that 
the licensee never implemented an EEO program, and sought 
gualified minority applicants only through “word of mouth.” id. 
at 5279 524(J.A. 43). The Review Board stated that the 
licensee's “pattern of indifference to the Commission's EEO 
requirements, including the information about the Station's 
actual EEO program expected as part of the renewal process, 
resulted in information not reflective of the truth and therefore 
is tantamount to a lack of candor”(J.A. 43) . -

The Review Board affirmed the $50,000 forfeiture based on 
lack of candor in violation of 47 C.F.R. 73.1015, and modified 
the ALJ's ordering clause to specify that the stations' renewals 
are granted for a short-term, ending January 1, 1997, one month 
before the normal license term. Id. at 5281 5531, 34, 5282 
539(J.A. 44).

3. FCC Decision. The full Commission affirmed the Review 
Board's determination, but reduced the forfeiture for 
misrepresentation and lack of candor to $25,000, and restored the 
licensee's renewal to a full term. Memorandum Opinion and Order. 
12 FCC Red. 2152 51 (1997)(J.A. 23).

The Commission first addressed the constitutional arguments 
raised by the Church, and held that Kina's Garden, which limited 
the Church's exemption from the EEO rules only to those

- The Review Board did not address the merits of the ALJ's 
second lack of candor determination, finding that the first 
instance of misrepresentation was sufficient for imposing the 
$50,000 forfeiture. Id. at 5280 527(J.A. 43A).



-14-
individuals hired in employment positions involved in espousing 
the Church's religious views, was not overruled by Corporation of 
the Presiding Bishop v. Amos, 483 U.S. 327 (1987). 12 FCC Red.
at 2157 510(J.A. 28). The FCC observed that Amos upheld the 
constitutionality under the First Amendment of Title VII's 
prohibition against religious discrimination in employment to 
secular, nonprofit activities of religious organizations.17 At 
the outset, the Commission observed that Amos was not a broadcast 
case, and did not discuss the Commission's EEO requirements (J.A. 
28). The Commission further noted language in Kina's Garden that 
the broad exemption of religious activities in Section 702 “was 
simply not relevant to the Commission's regulation of the EEO 
practices of broadcast licensees under the public interest 
standard of the Communications Act." Id. at 2158 flO(J.A. 29), 
citing Kina's Garden. 498 F.2d at 58. Rejecting the application 
of the Section 702 exemption to the across-the-board hiring of 
religious broadcasters, the court of appeals in Kina's Garden 
stated (498 F.2d at 59): “[w]e have no evidence that Congress 
wished in 1972 to upset this well established doctrine that 
licensed broadcasters must meet FCC-imposed obligations 
inapplicable to the private sector generally."

The Commission next rejected the Church's claim that the EEO 
regulation was race-conscious and therefore violated the Fifth

The plaintiffs in Amos were individuals fired from their 
jobs with church-owned corporations for failing to qualify as 
church members. They argued that Section 702 of Title VII (42 
U.S.C. 2000e-l), which exempts religious organizations from the 
prohibition against religious discrimination, violates the 
Establishment Clause of the First Amendment. 483 U.S. 330-331.



-15-
Amendment, based on the Supreme Court's decision in Adarand
Constructors. Inc, v. Pena, 515 U.S. 200 (1995). 12 FCC Red. at
2159 113(J.A. 30). The Commission stated (J.A. 30):

Contrary to the Church's position, our EEO rule does not use 
racial classifications, nor does it require that any person 
be hired or be given a hiring preference based on race. 
Rather, it requires that licensees make efforts to recruit 
minority and women applicants so that they will be assured 
access to the hiring process. Thus, the EEO rule, applied 
to the Church here, does not result in the deprivation of a 
constitutional right on the basis of race, and the Church 
has not even identified any person who arguably suffered any 
such injury.
The Commission also rejected the Church's argument that 

application of the EEO regulations to its renewal violated the 
Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. 
2000bb-l, which prohibits government from “substantially 
burden[ing]” the free exercise of religion absent a compelling 
interest. The Commission held that the application of the EEO 
regulations is not a substantial burden on a religious 
broadcaster for those employment positions that are not involved 
in espousing religious views. 12 FCC Red. at 2160 514 (J.A. 31), 
citing Coomes v. Commissioner of Internal Revenue, 572 F.2d 554 
(6th Cir.) (“[c]ases abound in which the First Amendment right to 
free exercise of religion has been held to not be absolute, and 
indirect and incidental burdens thereon were found to be 
constitutionally proper"), cert, denied, 439 U.S. 854 (1978).

The Commission affirmed the ALJ and Review Board 
determinations with respect to the licensee's acts of 
misrepresentation in violation of 47 C.F.R. 73.1015. The 
Commission agreed with the ALJ and Review Board that the



-16-
“licensee's composite description of its recruitment program 
submitted in its renewal applications was seriously misleading,” 
and that statements by the licensee “created a false impression 
that the licensee's program fully comported with Commission 
reguirements” when in fact the “licensee's EEO recruitment 
program had fallen into noncompliance." 12 FCC Red. at 2162 
519(J.A. 33). The Commission held that the licensee displayed an 
intent to deceive the Commission with respect to describing its 
EEO program “because of the likelihood that serious guestions 
would be raised about their renewal applications." Id. at 2163 
520(J.A. 34). The Commission further reinstated the ALJ's 
finding that station officials lacked candor with respect to the 
classical music requirement at the FM station. Id. at 2163 
521(J.A. 34). The Commission held that the operations manager 
“knew that classical music knowledge was not a prerequisite * * * 
and that only half of the persons hired for sales positions had 
such experience." Id. at 2164 522 (J.A. 35). The Commission 
determined that the operations manager was "motivated by his 
knowledge of the licensee's inadequate recruitment efforts and 
* * * by the specific desire to justify the deficient practices 
at the FM station” (J.A. 35) .

The Commission affirmed the decisions below granting the 
licensee's renewal subject to reporting conditions as a 
consequence of the EEO infractions in violation of 47 C.F.R. 
73.2080. Id. at 2165 523(J.A. 35A). The Commission reduced the 
$50,000 fine imposed by the ALJ, and affirmed by the Review 
Board, to $25,000. Id. at 2166 525(J.A. 36).



-17-
SUMMARY OF THE ARGUMENT

The FCC's EEO regulation is a race-neutral nondiscrimination 
provision that does not require any licensee to engage in race­
conscious decision-making and therefore need not be evaluated 
under strict scrutiny. The licensee in this case was found to 
have violated the FCC's EEO regulation because it failed to adopt 
the nondiscrimination and outreach policies embodied in the FCC's 
regulation. That EEO regulation does not utilize racial 
classifications for purposes of governmental decision-making, and 
does not subject the licensee to government action because of 
factors that require race to be considered in decision-making. 
Instead, the rule requires only that a licensee not discriminate 
on the basis of race or sex in its employment practices, and that 
its outreach efforts are balanced enough to reach a diverse pool 
of potential applicants. No licensee is prohibited from engaging 
in any additional outreach or recruitment efforts it wishes to 
undertake. And nothing in the FCC policy requires a licensee to 
take any action affecting an applicant or employee on the basis 
of race, and therefore there simply is no predicate for the 
application of strict scrutiny.

Even if this Court determines that strict scrutiny does 
apply in evaluating the constitutionality of the EEO regulation, 
the provision satisfies that level of review. The EEO regulation 
satisfies the compelling interest of the FCC to ensure that 
licensees engage in nondiscriminatory employment practices by, in 
part, not excluding women and minorities when making hiring 
decisions. The FCC's EEO program was also promulgated because of



-18-
the agency's determination that the presence of women and 
minorities at broadcast stations will help to ensure that the 
station will strive to serve the diverse programming needs of the 
community where the station is located. The FCC'5 EEO regulation 
is sufficiently narrowly tailored to satisfy the second-prong of 
strict scrutiny analysis. Because it is a nondiscrimination 
provision, it has little or no effect on nonminorities. The FCC 
enforces the regulation in a flexible manner, and the regulation 
is subject to periodic review by the agency and Congress.

ARGUMENT
I

STRICT SCRUTINY ANALYSIS DOES NOT APPLY TO 
THE FCC'S RACE-NEUTRAL EEO REGULATION

The FCC's EEO regulation is not subject to strict scrutiny 
because it is race-neutral and nondiscriminatory, and does not 
require any race-conscious decision-making affecting any 
individual. Regulatory or statutory provisions that do not 
utilize race for purposes of decision-making ordinarily have not 
been subjected to strict scrutiny analysis.

In this case, the federal regulation under review requires 
broadcasters only to adopt nondiscriminatory employment policies 
and practices, and in doing so ensure that minorities and women 
are not arbitrarily excluded from consideration for job openings. 
The EEO regulation does not require licensees to create a 
racially-balanced applicant pool, and does not call for any race- 
based hiring. The regulation is merely designed to ensure that, 
to the extent practicable, licensees' recruitment and outreach



-19-
actions and public notification of job opportunities include 
efforts to reach minorities and women thereby create a diverse 
applicant pool from which they can make employment decisions on a 
nondiscriminatory basis.£/ This type of outreach, stopping well 
short of using race in decision-making, does not create the kind 
of race-based action that has been subjected to strict scrutiny.

In Adarand Constructors. Inc, v. Pena. 515 U.S. 200 (1995), 
the Supreme Court held that strict scrutiny applies to a 
governmentally imposed racial classification that may deny an 
individual a benefit or otherwise detrimentally affect an 
individual based on race. The racial classification under 
challenge in Adarand was one incorporated into a subcontracting 
compensation clause included in bidding contracts for federal 
highway projects. Under the subcontracting compensation clause, 
prime contractors were compensated for the additional cost 
associated with awarding subcontracts to small businesses owned

- Because the FCC's EEO regulation should not be subjected 
to strict scrutiny, we think that it should be subject to 
“rational basis” review. Schweiker v. Wilson, 450 U.S. 221, 230 
(1981) (under rationality review, the challenged government 
action is constitutional where it “classif[ies] the persons it 
affects in a manner rationally related to legitimate governmental 
objectives”); Plyler v. Doe, 457 U.S. 202, 216 (1982) (“In 
applying the Equal Protection Clause to most forms of state 
action, we * * * seek only the assurance that the classification 
at issue bears some fair relationship to a legitimate public 
purpose."). “[A] classification neither involving fundamental 
rights nor proceeding along suspect lines is accorded a strong 
presumption of validity.” Heller v. Doe, 509 U.S. 312, 319 
(1993). Rational basis review requires only that the government 
demonstrate that it has a reasonable basis for its policy, and 
the policy should be upheld “even when there is an imperfect fit 
between means and ends.” Id. at 321. Because the FCC1s EEO 
regulation satisfies strict scrutiny, as explained infra at pp. 
26-34, it clearly satisfies rational basis review.



-20-
and operated by socially and economically disadvantaged 
individuals. Under the terms of the contract, small businesses 
owned and operated by minorities were presumed socially and 
economically disadvantaged. 515 U.S. at 205. The Department of 
Transportation awarded a prime contract for a highway 
construction project to Mountain Gravel & Construction Co. When 
Mountain Gravel solicited bids from subcontractors, Adarand 
submitted the low bid. Ibid. Gonzales Construction Co., a 
minority-owned business, also submitted a bid. Despite Adarand's 
low bid, Mountain Gravel awarded the subcontract to Gonzales as 
permitted by the subcontracting compensation clause. Gonzales' 
race thereby was a factor in its receipt of the contract, and the 
decision not to give it to Adarand. Ibid.

While the Supreme Court did not rule on the 
constitutionality of the racial classification challenged in 
Adarand, it did find that this kind of race-based decision­
making, even when Congressionally imposed, required analysis 
under strict scrutiny. The Court stated, “whenever the 
government treats any person unequally because of his or her 
race, that person has suffered an injury that falls squarely 
within the language and spirit of the Constitution's guarantee of 
equal protection,” id. at 229-230, and held that strict scrutiny 
applies to those federal racial classifications that cause 
unequal treatment based on race. Id. at 224, 227. This kind of 
racial classification is similar to the state-sponsored program 
that was subjected to strict scrutiny in City of Richmond v. J.A. 
Croson Co., 488 U.S. 469, 495-496 (1989). In Crosonf the Supreme



-21-
Court subjected the City of Richmond's Minority Business 
Utilization Plan to strict scrutiny analysis because it required 
prime contractors awarded city construction contracts to 
subcontract at least 30% of the dollar amount of each contract to 
minority-owned businesses. Id. at 477. Other racial 
classifications that require decision-making based on race which 
have been subjected to strict scrutiny include a state 
university's decision to create a minority-only scholarship 
program fPodberesky v. Kirwan, 956 F.2d 52, 54-55 (4th Cir.
1992)), and a school board's decision to retain a less-senior 
black social worker over a white social worker during a 
reduction-in-force (Cunico v. Pueblo Sch. Dist. No. 60f 917 F.2d 
431, 437-438 (10th Cir. 1990)).

By contrast, the present case does not trigger strict 
scrutiny since the FCC's EEO regulation does not require the 
licensee to make any race-conscious hiring decisions, create a 
racially exclusive applicant pool, or create any specific racial 
balance in that pool. The FCC rule requires only that a licensee 
hire in a nondiscriminatory manner, and that the licensee make 
sure that its efforts to publicize job opportunities be broad 
enough to reach women and minorities who, according to the 
composition of the station workforce, may not have been reached 
in prior outreach activities, in addition to the non-minorities 
and men who have been reached by past outreach activities.

The licensee's argument here (Church Br. 35-36 (emphases 
omitted)) that it was penalized by the FCC for failing to be 
“race-conscious at every step in its hiring process for every



-22-
vacancy” during the second half of its licensing term, is clearly 
specious, and inaccurately characterizes the findings of fact 
which constitute the basis for the violation of the EEO policy. 
The FCC's EEO regulation is a race-neutral nondiscrimination 
provision, and does not require “race-consciousness” during the 
hiring process. The FCC policy does not require race-conscious 
hiring practices at all; rather, the hiring must be 
nondiscriminatory. The outreach the FCC encourages a licensee to 
undertake for minorities and women in addition to the licensee's 
current outreach practices is not designed to create any 
particular racial balance in the applicant pool, but only to 
ensure that minorities and women are not excluded from 
notification of those opportunities. The FCC does not prohibit 
any particular type of outreach the licensee is already doing or 
may choose to adopt; the FCC seeks only to ensure that outreach 
efforts reach a broadly-defined public.

The ALJ determined, and the Review Board and Commission 
affirmed, that the licensee failed to implement the FCC's race- 
neutral policies in the following ways. First, the ALJ found 
that management-level employees of the stations failed to 
implement a continuous or consistent EEO program, and that no 
management-level employee was specifically instructed to do so, 
in violation of 47 C.F.R. 73.2080(b)(1). Initial Decision, 10 
FCC Red. 9880, 9911 ^218 (ALJ 1995)(J.A. 76). Second, the ALJ 
found that the employment application used by the stations did 
not contain a notice informing prospective employees that 
discrimination was prohibited and that they could notify the



-23-
appropriate agencies if they believed they had been the victims 
of discrimination. Id. at 9911 5219(J.A. 76). Finally, the 
licensee failed to engage in continuing review of the stations' 
job structure, and failed to analyze its recruitment efforts.
Id. at 9912 5222(J.A. 77).

The licensee's violation of these race-neutral provisions 
does not trigger strict scrutiny analysis because the EEO policy 
simply does not require the licensee to engage in race-based 
decision-making. See also Florida State Conf. of Branches nf i-hP 
N&ACE v. ZCC, 24 F.3d 271, 272 (D.C. Cir. 1994) (“[t]he
Commission's EEO program does not * * * purport to require a 
licensee to achieve numerical goals of minority employment 
* * *.”). The evidence instead shows that the licensee 
preferred to employ Lutheran church members, and as a direct 
result of that practice failed to comply with the 
nondiscrimination policy embodied in 47 C.F.R. 73.2080. Thus, 
the FCC's determination to impose reporting requirements on the 
licensee is not the result of a program requiring a racial 
preference and does not require justification under strict 
scrutiny.

The FCC's EEO regulation requires only that certain measures 
be taken to ensure a broad pool of applicants —  one that 
includes qualified minorities and women —  by requiring that 
licensees announce job openings on a nondiscriminatory basis, and 
to expand existing practices to avoid excluding appropriate 
organizations and institutions likely to refer qualified minority 
and female job applicants to the extent practicable. The 
regulation does not preclude outreach to organizations that the



- 2 4 -

licensee regularly utilizes for job referrals. In fact, where 
outreach to these organizations results in a broad pool of 
candidates, a licensee will be found in compliance with the 
regulation. See Resort Broad. Co., 12 FCC Red. 7785 ^7 (1977) ; 
accord Enterprise Media of Toledo. L.P., 12 FCC Red. 3920 512 
(1997); Pappas Telecasting Inc.f 11 FCC Red. 2945 512 (1996). 
Therefore, there is simply no race-based decision-making and no 
predicate for strict scrutiny. See, e.g., Monterey Mechanical 
Co. V. Wilson, No. 96-16729, 1997 WL 538757, *9 (9th Cir. Sept.
3, 1997) ("We are not faced with a non-discriminatory outreach 
program, requiring that advertisements for bids be distributed in 
such a manner as to assure that all persons, including women- 
owned and minority-owned firms, have a fair opportunity to bid. 
The Equal Protection Clause as construed in Adarand applies only 
when the government subjects a 'person to unequal treatment.'”).

Indeed, the Justice Department, in its review of the Adarand 
decision that was disseminated to all federal agencies, carefully 
scrutinized this issue, and concluded that outreach and 
recruitment aimed at minorities or women generally did not fall 
within strict scrutiny because race or sex was not a factor in 
any actual employment decisions. See Office of Legal Counsel, 
Department of Justice, Memorandum to General Counsels at 7 (June 
28, 1995) (attached as Addendum).

Courts that have addressed outreach have characterized such 
practices as race-neutral. In Peiahtal v. Metropolitan DadP 
County, 26 F.3d 1545 (11th Cir. 1994), the court of appeals 
evaluated the constitutionality of an affirmative action plan



- 2 5 -

that sought to redress prior discrimination against minorities 
and women in a county fire department. Plaintiff, a white male, 
applied to become a firefighter when the department was hiring 
pursuant to a program that called for the selection of black, 
Hispanic and female applicants in accordance with certain goals. 
Despite plaintiff's high score on the firefighter examination, 
black, Hispanic and female applicants were hired over plaintiff 
in order to satisfy the terms of the affirmative action plan.
Id. at 1548-1549. In evaluating the affirmative action plan 
under the narrow tailoring prong of strict scrutiny, the court of 
appeals observed that the county had engaged in unsuccessful 
“race-neutral measures” for remedying the discrimination against 
women and minorities. The unsuccessful race-neutral measures 
were: (1) “initiat[ing] high school and college recruiting
programs to provide information and to solicit applications from 
young minorities and women for firefighting positions”; (2) 
engaging in “outreach programs"; and (3) designating a 
"recruitment specialist to organize and implement a special 
recruitment program.” Id. at 1557-1558; see also Coral Constr. 
£sl». v. King County. 941 F.2d 910, 923 (9th Cir. 1991) (training 
sessions for small businesses and providing information on 
accessing small business assistance programs considered “race- 
neutral measures”), cert, denied, 502 U.S. 1033 (1992); Billish
v. City of Chicago, 962 F.2d 1269, 1290 (7th Cir. 1992)
("aggressive recruiting" considered a race-neutral measure), on 
rehearing, 989 F.2d 890 (7th Cir.) (en banc), cert, denied, 510 
U.S. 908 (1993). Thus, the portion of the FCC's EEO regulation



-26-

that calls for outreach to women and minorities, to the extent 
practicable, is a race-neutral measure that need not be subjected 
to strict scrutiny.

II
EVEN IF STRICT SCRUTINY APPLIES, THE EEO REGULATION 
IS CONSTITUTIONAL BECAUSE IT IS NARROWLY TAILORED 

TO SATISFY A COMPELLING INTEREST OF THE FCC
Even if strict scrutiny applies, the FCC's EEO regulation is 

constitutional. In Adarand, the Supreme Court made applicable to 
federal uses of racial classifications the same standard of 
review, strict scrutiny, that the Court's decision in Croson 
applied to state and local uses of racial classifications. Under 
strict scrutiny, the use of racial criteria must be shown to 
satisfy a compelling governmental interest, and be narrowly 
tailored to serve that interest. Adarand, 515 U.S. at 235-237; 
Croson. 488 U.S. at 493, 507.

A. The FCC '-S EEO Regulation Serves A Compelling 
Governmental Interest

In Croson f Justice O'Connor stated that remedying the 
identified effects of past discrimination constitutes a 
compelling interest that can support the use of a racial 
classification by the government. Justice O'Connor stated that 
compelling interest can be established where the government seeks 
to remedy the effects of its own discrimination, or where it 
seeks to remedy the effects of discrimination by private actors 
within its jurisdiction, i.e., where the government becomes a 
"passive participant" in that conduct and helps to perpetuate a 
system of exclusion. Croson, 499 U.S. at 492; id. at 518-519



- 2 7 -

(Kennedy, J., concurring in part and concurring in the judgment). 
In this case, the FCC's EEO policy was adopted for the purpose of 
deterring discriminatory employment practices by licensees, and 
to promote programming that reflects the interests of minorities 
and women in the community.

In Regents of the University of California v. Bakke, 438 
U.S. 265, 311-320 (1978), Justice Powell wrote that a university 
has a compelling interest in student diversity and thus can take 
the race of applicants into account in its admissions process.
Id, at 311-314. In Metro Broadcasting. Inc, v. FCC, 497 U.S. 547 
(1990), the Supreme Court held that diversification of ownership 
of broadcast stations was a permissible basis for using race- 
based criteria because the FCC's objective was to serve the goal 
of programming diversity. Id. at 567-568. The Court reached 
that conclusion after applying “intermediate scrutiny” to the 
FCC's “benign use of race." Adarand overturned Metro 
Broadcasting only to the extent that Metro required “intermediate 
scrutiny” of racial classifications by the federal government. 
Adarand, 515 U.S. at 226-227. The Adarand Court did not address 
whether the FCC's minority ownership policy as a measure to 
further diverse programming would satisfy strict scrutiny. Id. 
at 258 (Stevens, J., dissenting) (“The majority today overrules 
Metro Broadcasting only insofar as it is 'inconsistent with [the] 
holding' that strict scrutiny applies to 'benign' racial 
classifications promulgated by the Federal Government. * * * The 
proposition that fostering diversity may provide a sufficient 
interest to justify such a program is not inconsistent with the



-28-

Court 's holding today —  indeed, the question is not remotely 
presented in this case * * *.") .

Federal appeals courts that have recently addressed whether 
diversity is a permissible basis to support the use of racial 
criteria have rejected it on Constitutional grounds (Hopwood v. 
State Qf Texas, 78 F.3d 932 (5th Cir.), cert- denied, 116 S. Ct. 
2580 (1996)), and under Title VII (Taxman v. Board of Educ.. 9 1  

F.3d 1547 (3d Cir. 1996) (en banc), petition for cert, granted, 
117 S. Ct. 2506 (1997)). However, unlike the school board in 
Taxman and the State in Hopwood, the FCC is unique in that it has 
an inherent responsibility pursuant to its congressional mandate 
to ensure that broadcasters operate their stations in the public 
interest, including ensuring that broadcasters offer a wide 
variety of news and information in order to meet the diverse 
needs of the community. See Adarand, 515 U.S. at 230 
(“[R]equiring that Congress, like the States, enact racial 
classifications only when doing so is necessary to further a 
'compelling interest1 does not contravene any principle of 
appropriate respect for a coequal branch of the Government.”); 
Fullilove V. Klutznick, 448 U.S. 448, 472-473 (1980); Metro
Broadcasting, 497 U.S. at 563.

In Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969), 
the Supreme Court held that the FCC has a substantial government 
interest in ensuring that broadcasters present a balanced and 
adequate coverage of news and public issues. The Court stated 
that broadcast licensees have an obligation to act in the public 
interest, and that the FCC, as the agency regulating the nation's



- 2 9 -

airwaves, has the authority to impose certain obligations on a 
licensee to serve this public trust. Id. at 379-380. “[G]iven 
spectrum scarcity, those who are granted a license to broadcast 
must serve in a sense as fiduciaries for the public by presenting 
'those views and voices which are representative of [their] 
community.'’’ £££ v. League of Women Voters, 468 U.S. 364, 377 
(1984), quoting Red Lion. 395 U.S. at 389. Congress regulates 
broadcasters through its Commerce Clause powers, and “through the 
regulatory oversight of the FCC [can ensure] that only those who 
satisfy the 'public interest, convenience, and necessity1 are 
granted a license to use radio and television broadcast 
frequencies." Id. at 376. Pursuant to the Communications Act of 
1934, 47 U.S.C. 307, Congress authorized the FCC to determine the 
conditions which shall attach to the grant of an application for 
renewal of a broadcast license. The FCC's rule prohibiting 
employment discrimination by licensees was first implemented in 
1969, and required licensees to establish, maintain and carry out 
a positive, continued program to ensure EEO in every aspect of 
station employment. Petition for Rulemaking to Require Broadcast 
Licensees to Show Nondiscrimination in Their Employment 
Practices, 18 FCC 2d 240 (1969). In 1992, Congress codified the 
FCC's EEO requirements by directing the agency to bolster 
broadcast EEO enforcement by conducting midterm review of 
broadcast television stations, and endorsed the EEO regulation by 
prohibiting the Commission from amending it as it pertains to 
television licensees and permittees. 47 U.S.C. 334.

In 1996, Congress codified the agency's procedures for



- 3 0 -

license renewal by enacting legislation that required the agency, 
prior to renewal, to ascertain whether the station “has served 
the public interest, convenience, and necessity” and whether 
there have been any “serious violations * * * of this [Act] or 
the rules and regulations of the Commission." 47 U.S.C. 309(k).
When this legislation was promulgated, the FCC had formulated 
many rules designed to prohibit employment discrimination by 
licensees. See Nondiscrimination in Employment Practices of 
Broadcast Licensees. 23 FCC 2d 430 (1970); Nondiscrimination in 
the Employment Policies and Practices of Broadcast Licenseesr 54 
FCC 2d 354 (1975); Nondiscrimination in Employment Practices, 60 
FCC 2d 226 (1976).

The Supreme Court has indirectly endorsed the FCC's EEO 
regulations. In NAACP v. Federal Power Commission, 425 U.S. 662 
(1976), the Court struck down similar regulations proposed by the 
NAACP as in excess of the Commission's statutory mandate.
However, the Court observed that the FCC's EEO rules could “be 
justified as necessary to enable the FCC to satisfy its 
obligation under the Communications Act of 1934, 48 Stat. 1064, 
as amended, 47 U.S.C. § 151 seq., to ensure that its 
licensees' programming fairly reflects the tastes and viewpoints 
of minority groups.” 425 U.S. at 670 n.7.

The FCC extended the EEO rules to cable television systems, 
and Congress codified that requirement in 1984. See Cable 
Communications Policy Act of 1984, Pub. L. No. 98-549, 98 Stat. 
2797 (1984). The language of Section 634 of the Cable 
Communications Policy Act mirrors that of the FCC's EEO



- 3 1 -

regulation, and also requires that cable broadcasters file annual
employment reports similar to that required of broadcasters
pursuant to 47 C.F.R. 73.3612. Congress explained (H.R. Rep. No.
934, 98th Cong., 2d Sess. 85 (1984 U.S.C.C.A.N. 4722)):

Because of the potentially large impact cable programming 
and other services provided by the cable industry has on the 
public, the employment practices of the industry have an 
importance greater than that suggested by the number of its 
employees. The Committee strongly believes that equal 
employment opportunity requirements are particularly 
important in the mass media area where employment is a 
critical means of assuring that program service will be 
responsive to a public consisting of a diverse array of 
population groups.
Moreover, the D.C. Circuit has recognized that the FCC may 

promulgate regulations that help to ensure that stations provide 
programming that is responsive to minorities and women in the 
local community. See TV9. Inc, v. FCC, 495 F.2d 929, 937-938 
(D.C. Cir. 1973), cert, denied, 419 U.S. 986 (1974); West Mich. 
Broad. Co. v. FCC, 735 F.2d 601, 613-616 (D.C. Cir. 1984), cert, 
denied, 470 U.S. 1027 (1985).

The Commission “does not assume that minority and female 
employment will always lead to minority and female-oriented 
programming or to the expression of a particular minority or 
female viewpoint on the airwaves,” but the agency recognizes that 
“as more minorities and women are employed in the broadcast 
industry, varying perspectives are more likely to be aired." 11 
FCC Red. at 5156 f3. The Commission stated in the 1996 Notice 
(ibid.) that

deterrence of unlawful discrimination rests[] on the belief 
that a broadcaster that engages in unlawful discrimination 
cannot, by definition, fulfill the needs of the entire 
community * * * [and] that employment discrimination in the



- 3 2 -

broadcast industry inhibits our efforts to diversify media 
ownership by impeding opportunities for minorities and women 
to learn the operating and management skills necessary to 
become media owners and entrepreneurs.
B. The FCC's EEO Regulation Is Sufficiently Narrowly

Tailored
The FCC's EEO program is sufficiently narrowly tailored to 

satisfy strict scrutiny. Factors for determining whether federal 
program utilizing racial criteria is narrowly tailored include:
(1) the efficacy of alternative remedies; (2) the duration of the 
remedy and whether it is subject to periodic review; (3) program 
flexibility and the availability of waiver provisions; (4) the 
manner in which race is used; and (5) the effect of the program 
on nonbeneficiaries. Fullilover 448 U.S. at 510-516 (Powell, J., 
concurring); Croson, 488 U.S. at 507-510.

The FCC's EEO rule encompasses race-neutral provisions in 
that it proscribes discrimination against all persons on the 
basis of race and sex, and directs licensees to afford equal 
opportunity in employment to all qualified persons. 47 C.F.R. 
73.2080. The regulation also requires licensees to communicate 
its EEO policy and employment needs to sources of qualified 
applicants without regard to race and sex. 47 C.F.R. 
73.2080(b)(3). Because the FCC uses race-neutral measures in 
implementing its EEO program, it satisfies this element of strict 
scrutiny.

Further, the FCC periodically reviews its EEO program and 
over the years has made the nondiscrimination provision 
applicable to new forms of telecommunications technology. See, 
supra pp. 29-32. Since the EEO regulation is subject to regular



- 3 3 -

review by the FCC and Congress, it therefore satisfies this 
element of narrow tailoring.

The FCC's EEO program is inherently flexible in that it does 
not require that minorities or women be hired at broadcast 
stations. Rather it merely seeks to ensure that announcements 
for job openings are distributed to sources for referral of 
qualified candidates that will include organizations that are 
likely to reach qualified minority and female applicants. 
Moreover, in the case of a job opening at a station, the EEO 
program does not require that a certain number of minorities or 
women apply for positions, nor does it proscribe the kinds of 
outreach a station may choose to do. The only requirement of the 
EEO policy is that broadcasters engage in efforts that may create 
a broad pool of potential applicants, including potential 
minority and female candidates.

Quite significantly, the EEO regulation's use of racial 
criteria is extraordinarily modest, in that it merely requires 
broadcasters to include potential sources of minority and female 
applicants when job vacancies occur. Such outreach to sources 
likely to produce minority and female candidates is undertaken 
consistent with the FCC's requirement that licensees communicate 
its EEO policy and employment needs to qualified applicants, and 
sources for referral of qualified applicants, without regard to 
race or sex. 47 C.F.R. 73.2080(b)(3). Thus, the outreach 
measure does not require that licensees direct their recruiting 
efforts solely to minority and female candidates. The regulation 
requires that licensees recruit on a nondiscriminatory basis, and



- 3 4 -

in that process institute measures to ensure, to the extent 
practicable, communication of employment opportunities include 
qualified minorities and women.

Finally, the EEO regulation has virtually no effect on 
nonminorities. It has no direct racial affect on nonminority 
candidates for employment since the regulation is designed to 
further nondiscrimination in employment at broadcast stations and 
merely to expand the number of job applicants. Nonminority 
candidates for employment are not disadvantaged here based on 
their race, since the regulation permits licensees to make 
employment decisions on a nonracial basis.

1 J The FCC's EEO regulation is fundamentally different from 
the “good faith efforts" provision ruled unconstitutional in 
Monterey Mechanical. 1997 WL 538757, at * *15. While that 
California contracting provision required prime contractors to 
engage in "good faith efforts" to subcontract with minority-, 
women- and disabled-veteran-owned firms, the regulation also 
imposed on prime contractors "mandatory requirements" designed to 
meet a 23% goal for contracting with these businesses. Id. at
*1, 10. Prime contractors who were also minority, female or 
disabled-veteran-owned could satisfy this percentage goal by 
retaining a percentage of the work for themselves, whereas 
persons falling outside the state statute's protected class were 
required to subcontract out 23% of the work on a public contract, 
or at minimum engage in good faith efforts to do so. Id. at *7. 
The FCC's EEO regulation, however, does not impose such a 
requirement.



-35-
CONCLUSION

The FCC's order should be affirmed.
ISABELLE KATZ PINZLER
Acting Assistant Attorney General

MARK L. GROSS 
LISA WILSON EDWARDS
Attorneys
Department of Justice 
P.O. Box 66078
Washington, D.C. 20035-6078



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Office of Legal Counsel

30530

June 28, 1995

MEMORANDUM TO GENERAL COUNSELS

From: Walter Dellinger
Assistant Attorney General

{ ^ —

Re: Ada rand

This memorandum sets forth preliminary legal guidance on the implications of the 
Supreme Court’s recent decision in Adarand Constructors. Inc, v. Pena. 63 U.S.L.W. 4523 
(U.S. June 12, 1995), which held that federal affirmative action programs that use racial and 
ethnic criteria as a basis for decisionmaking are subject to strict judicial scrutiny. The 
memorandum is not intended to serve as a definitive statement of what Adarand means for 
any particular affirmative action program. Nor does it consider the prudential and policy 
questions relevant to responding to Adarand. Rather, it is intended to provide a general 
overview of the Court's decision and the new standard for assessing the constitutionality of 
federal affirmative action programs.

Our conclusions can be briefly summarized. Adarand made applicable to federal 
affirmative action programs the same standard of review, strict scrutiny, that Citv of 
Richmond v. J.A. Croson C o.. 488 U.S. 469 (1989), applied to state and local affirmative 
action measures -- with the important caveat that, in this area, Congress may be entitled to 
greater deference than state and local governments. Although Adarand itself involved 
contracting, its holding is not confined to that context; rather, it is clear that stria scrutiny 
will now be applied by the courts in reviewing the federal government’s use of race-based 
criteria in health, education, hiring, and other programs as well.

The Supreme Court in Adarand was careful to dispel any suggestion that it was 
implicitly holding unconstitutional all federal affirmative action measures employing racial or 
ethnic classifications. A majority of the Justices rejected the proposition that "stria scrutiny" 
of affirmative action measures means "stria in theory, fatal in faa," and agreed that "the 
unhappy persistence of both the practice and the lingering effects of racial discrimination 
against minority groups in this country" may justify the use o f race-based remedial measures 
in certain circumstances. 63 U.S.L.W . at 4533. jcL at 4542 (Souter, J., dissenting); i&. 
at 4543 (Ginsburg, J., dissenting). Only two Justices advocated positions that approach a 
complete ban on affirmative action.



The Court s decision leaves many questions open — including the constitutionality of 
the very program at issue in the case. The Court did not discuss in detail the two 
requirements of strict scrutiny: the governmental interest underlying an affirmative action 
measure must be "compelling" and the measure must be "narrowly tailored" to serve that 
interea. As a consequeace, oar analysis of Ada rand's effects on federal *nion must be 
based on Croson and the lower court decisions applying strict scrutiny to and local 
programs. It is unclear, however, what differences will emerge in the application of stria 
scrutiny to affirmative action by the national government; in particular, the Court expressly 
left open the question of what deference the judiciary should give to determinations by 
Congress that affirmative action is necessary to remedy discrimination against racial and 
ethnic minority groups. Unlike state and local governments, Congress may be able to rely 
on national findings of discrimination to justify remedial racial and ethnic classifications; it 
may not have to base such measures on evidence o f discrimination in every geographic locale 
or seaor of the economy that is affected. On the other hand, as with state and local 
governments under CrPSOn, Congress may not predicate race-based remedial measures on 
generalized, historical societal discrimination.

Two additional questions merit mention at the outset. First, the Court has not 
resolved whether a governmental institution must have sufficient evidence of discrimination 
to establish a compelling interest in engaging in race-based remedial action before it takes 
such action. A number of courts of appeals have considered this question in reviewing state 
and local affirmative action plans after Croson. and all have concluded that governments may 
rely on "post-enactment" evidence — that is, evidence that the government did not consider 
when adopting the measure, but that reflects evidence of discrimination providing support for 
the government's determination that remedial action was warranted at the time of adoption. 
Those courts have said that the government must have had some evidence of discrimination 
when instituting an affirmative action measure, but that it need not marshal all the supporting 
evidence at that time. Second, while Adarand makes clear that remedying past 
discrimination will in some circumstances constitute a compelling interest sufficient to justify 
race-based measures, the Court did not address the constitutionality of programs aimed at 
advancing nonremedial objectives -  such as promoting diversity and inclusion. For example, 
under Justice Powell's controlling opinion in Regents of the University of California v.

438 U.S. 265 (1978), increasing the racial and ethnic diversity of the student body at 
a university constitutes a compelling interest, because it ennches the academic experience on 
campus. Under stria scrutiny, it is uncertain whether and in what settings diversity is a 
permissible goal of affirmative action beyond the higher education context. To the extent 
that affirmative action is used to foster racial and ethnic diversity, the government must seek 
some further objective beyond the achievement of diversity itself.

Our discussion in this memorandum proceeds in four steps. In Section I, we analyze 
the facts and holding of Adarand itself, the scope of what the Court did decide, and the 
questions it left unanswered. Section II addresses the stria scrutiny standards as applied to 
state and local programs in Croson and subsequent lower court decisions; we consider the 
details of both the compelling interest and the narrow tailoring requirements Croson

- 2 -



mandated. In Section HI, we turn to the difficult question o f how precisely the Croson 
standards should apply to federal programs, with a focus on the degree o f deference courts 
may give to congressional determinations that affirmative action is warranted. Finally, in an 
appendix, we sketch out a series o f questions that should be considered in analyzing the 
validity under AAnnH of federal affirmative action programs that employ race or ethnicity 
as a criterion. The appendix is intended to guide agencies as they begin that process.

I. The Adarand Case

A. Facts

Aria rand involved a constitutional challenge to a Department o f Transportation 
("DOT") program that compensates persons who receive prime government contracts if they 
hire subcontractors certified as small businesses controlled by "socially and economically 
disadvantaged" individuals. The legislation on which the DOT program is based, the Small 
Business Act, establishes a government-wide goal for participation of such concerns at "not 
less than 5 percent of the total value of ali prime contract and subcontract awards for each 
fiscal year." 15 U.S.C. § 644(g)(1). The Act further provides that members of designated 
racial and ethnic minority groups are presumed to be socially disadvantaged. Id, § 637(a)(5). 
§ 637(d)(2),(3); 13 C.F.R. § 124.105(b)(1).' The presumption is rebuttable. 13 C.F.R. §§
124. I l l  (c)-(d), 124.601-124.609.2

In Adarand. a nonminority firm submitted the low bid on a DOT subcontract. 
However, the pnme contractor awarded the subcontract to a minority-owned firm that was 
presumed to be socially disadvantaged; thus, the prime contractor received additional 
compensation from DOT. 63 U.S.L.W . at 4525. The nonminority firm sued DOT, arguing 
that it was denied the subcontract because of a racial classification, in violation of the equal 
protection component of the Fifth Amendment’s Due Process Clause. The district court 
granted summary judgment for DOT. The Court of Appeals for the Tenth Circuit affirmed, 
holding that DOT'S race-based action satisfied the requirements of "intermediate scrutiny," 
which it determined was the applicable standard of review under the Supreme Court's rulings * 7

1 The following groups are entitled to the presumption: African American; Hispanic; Asian Pacific; 
Subcontinent Asian; and Native American. £« Adarand. 63 U.S.L.W. at 4524. This list of eligible 
groups parallels that of many federal affirmative action programs.

7 DOT also uses the subcontractor compensation mechanism in implementing the Surface 
Transportation and Uniform Relocation Assistance Act of 1987 ("STURAA"), Pub. L. No. 100-17, § 
106(c)(1), 101 Stat. 145, and its successor, the IntermodaJ Surface Transportation Efficiency Act of 1991 
("1STEA"), Pub. L. No. 102-240, $ 1003(b), 105 Stat. 1919-22. Both laws provide that "not less than 10 
percent’ of funds appropriated thereunder "shall be expended with small business concerns owned and 
controlled by socially and economically disadvantaged individuals.” STURAA and ISTEA adopt the Small 
Business Act's definition of "socially and economically disadvantaged individual," including the applicable 
race-based presumptions. Adarand. 63 U.S.L.W. at 4525.

- 3 -



ir Metro Broadcasting. Inc, v. FCC. 497 U.S. 547 (1990), and Fullilove v. Klutznick. 448 
U.S. 448 (1980). Sss Adaand, 63 U.S.L.W . at 4525.

B. The Holding

By a five-four vote, in in  opinion written by Justice O ’Connor, the Supreme Court 
held in Ada rand that strict scrutiny is now the standard o f constitutional review for federal 
affirmative action programs that use racial or ethnic classifications as the basis for 
decisionmaking. The Court made clear that this standard applies to programs that are 
mandated by Congress, as well as those undertaken by government agencies on their own 
accord. 63 U.S.L.W . at 4530. The Court overruled Metro Broadcasting to the extent that it 
had prescribed a more lenient standard of review for federal affirmative action measures.
LL’

Under stria scrutiny, a racial or ethnic classification must serve a "compelling 
interest" and must be "narrowly tailored" to serve that interest. L i/ This is the same 
standard of review that, under the Supreme Court’s decision in City of Richmond v. J.A. 
Croson C o.. 488 U.S. 469 (1989), applies to affirmative action measures adopted by state 
and local governments. It is also the same standard of review that applies to government 
classifications that facially discriminate against minorities. 63 U.S.L.W . at 4529, 4531.

In a portion of her opinion joined by Chief Justice Rehnquist, Justice Kennedy, and 
Justice Thomas, Justice O’Connor sought to "dispel the notion that stria scrutiny is ‘strict in 
theory, but fatal in fact’" when it comes to affirmative action. LL at 4533 (quoting 
Fullilove. 448 U.S. at 519 (Marshall, J., concurring in the judgment)). While that familiar 
maxim doubtless remains true with respect to classifications that, on their face, single out 
racial and ethnic minorities for invidious treatment/ Justice O’Connor's opinion declared that 
the federal government may have a compelling interest to a a  on the basis of race to 
overcome the "persistence of both the practice and lingering effects of racial discrimination 
against minority groups in this country." Id  In this respect, Justice O’Connor’s opinion in 
Adarand tracks her majority opinion in Croson. There, too, the Court declined to interpret 3

3 Justice O’Connor (along with three other Justices) bad dissented in Metro Broadcasting and urged the 
adoption of strict scrutiny as the standard of review for federal affirmative action measures.

* A classification reviewed under intermediate scrutiny need only (i) serve an "important" 
governmental interest and (ii) be "substantially related" to the achievement of that objective. Metro 
Broadcasting. 497 U.S. at 564-65.

3 £«, e g.. McLaughlin v. Florida. 379 U.S. 184, 192 (1964) (racial and ethnic classifications that 
single out minorities for disfavored treatment are in almost all circumstances "irrelevant to any 
constitutionally acceptable legislative purpose") (internal quotations omitted); Loving v. Virginia. 388 U.S. 
1,11 (1967) ("There is patently no legitimate overriding purpose independent of invidious racial 
discrimination which justifies" state law that prohibited interracial marriages).

- 4 -



the Constitution as imposing a flat ban on affirmative action by state and local governments. 
488 U .S. at 509-11.

Two members o f the ArlaraqH majority, Justices ScaJia and Thomas, wrote separate 
concurring opinions in which they took a more stringent position. Consistent with his 
concuning opinion in Croson. Justice Scalia would have adopted a near-absolute 
constitutional bar to affirmative action. Taking issue with Justice O’Connor’s proposition 
that racial classifications may be employed in certain circumstances to remedy discrimination 
against minorities, Justice Scalia stated that the "government can never have a ‘compelling 
interest' in discriminating on the basis o f race to ‘make-up’ for past racial discrimination in 
the opposite direction." 63 U.S.L.W . at 4534 (Scalia, J., concurring in part and concurring 
in the judgment).6 According to Justice Scalia, "[ijndividuals who have been wronged by 
unlawful racial discrimination should be made whole; but under our Constitution there can be 
no such thing as either a creditor or a debtor race. That concept is alien to the Constitution’s 
focus on the-individual . . . The compensation o f victims o f specific instances of
discrimination through "make-whole" relief, which Justice Scalia accepts as legitimate, is not 
affirmative action, as that term is generally understood. Affirmative action is a group-based 
remedy: where a group has been subject to discrimination, individual members of the group 
can benefit from the remedy, even if they have not proved that they have been discriminated 
against personally.7 Justice O’Connor’s treatment o f affirmative action in Adarand is 
consistent with this understanding.

Although Justice Thomas joined the portion of Justice O’Connor’s opinion holding 
that the government's interest in redressing the effects of discrimination can be sufficiently 
compelling to warrant the use of remedial racial and ethnic classifications, he apparently 
agrees with Justice Scalia's rejection of the group-based approach to remedying 
discrimination. Justice Thomas stated that the "government may not make distinctions on the 
basis of race," and that it is "irrelevant whether a government’s racial classifications are 
drawn by those who wish to oppress a race or by those who have a sincere desire to help

* In his Crosop concurrence. Justice Scalia said that he believes that "there is only one circumstance in 
which the States may act bv race to ‘undo the effects of past discrimination’: where that is necessary to 
eliminate their own maintenance of a system of unlawful racial classification." 488 U.S. at 524 (Scalia,
J., concurring in the judgment). For Justice Scalia, *[t]his distinction explains [the Supreme Court’s] 
school desegregation cases, in which [it has] made plain that Slates and localities sometimes have an 
obligation to adopt race-conscious remedies. Id, The school desegregation cases are generally not thought 
of as affirmative action cases, however. Outside of that context. Justice Scalia indicated that he believes 
that *[a]t least where state or local action is at issue, only a social emergency rising to the level of 
imminent danger to life and limb . . . can justify an exception to the principle embodied in the Fourteenth 
Amendment that our Constitution is color-blind." Id. at 521.

7 Local 28. Sheet Metal Workers’ lnt’1 Ass’p v. EEOC. 478 U.S. 421,482 (1986); Wygant v. 
Jackson Bd. of Educ.. 476 U.S. 267, 277-78 (1986) (plurality opinion); jd, at 287 (O’Connor, J., 
concurring).



those thought to be disadvantaged." I$L (Thomas, J., concurring in pan and concurring in 
the judgment).

The four dissenting Justices in Adarand (Justices Stevens, Souter, Ginsburg, and 
Breyer)' would have reaffirmed the intermediate scrutiny standard of review for 
congressionally authorized affirmative action measures established in Metro Broadcasting 
and would have sustained the DOT program on the basis of Fullilove. where the Coun 
upheld federal legislation requiring grantees to use at least ten percent of certain grants for 
public works projects to procure goods and services from minority businesses. Justices 
Stevens and Souter argued that the DOT program was more narrowly tailored than the 
legislation upheld in Fullilove. 63 U.S.L.W . at 4539-41 (Stevens, J., dissenting); at 
4542 (Souter. J., dissenting). All four dissenters stressed that there is a constitutional 
distinction between racial and ethnic classifications that are designed to aid minorities and 
classifications that discriminate against them. As Justice Stevens put it, there is a difference 
between a "No Trespassing" sign and a "welcome mat." IjL at 4535 (Stevens, J., 
dissenting). i<L. ("an attempt by the majority to exclude members of a minority race 
from a regulated market is fundamentally different from a [race-based] subsidy that enables a 
relatively small group of [minorities] to enter that market."); also id. at 4543 (Souter, J., 
dissenting); isL at 4544 (Ginsburg, J., dissenting). For the dissenters, Justice O’Connor's 
declaration that strict scrutiny of affirmative action programs is not "fatal in fact" signified a 
"common understanding" among a majority of the Coun that those differences do exist, and 
that affirmative action may be entirely proper in some cases. XiL at 4543 (Ginsburg. J., 
dissenting). In Justice Ginsburg’s words, the "divisions" among the Justices in Adarand 
"should not obscure the Coun’s recognition of the persistence of racial inequality and a 
majority’s acknowledgment of Congress’ authority to act affirmatively, not only to end 
discrimination, but also to counteract discrimination's lingering effects." Id. The dissenters 
also emphasized that there is a "significant difference between a decision by the Congress of 
the United States to adopt an affirmative-action program and such a decision by a State or a 
municipality." 1^ at 4537 (Stevens, J., dissenting); isL at 4542 (Souter, J., dissenting).
They stressed that unlike state and local governments, Congress enjoys express constitutional 
power to remedy discrimination against minorities; therefore, it has more latitude to engage 
in affirmative action than do state and local governments. IsL at 4538 (Stevens. J., 
dissenting). Justice Souter noted that the majority opinion did not necessarily imply a 
contrary view. at 4542 (Souter, J., dissenting).

Thus, there were at most two votes in Adarand (Justices Scalia and Thomas) for 
anything that approaches a blanket prohibition on race-conscious affirmative action. Seven 
justices confirmed that federal affirmative action programs that use race or ethnicity as a 
decisional factor can be legally sustained under certain circumstances. *

* Justice Stevens wrote a dissenting opinion that was joined by Justice Ginsburg. Justice Souter wrote 
a dissenting opinion that was joined by Justices Ginsburg and Breyer. And Justice Ginsburg wrote a 
dissenting opinion that was joined by Justice BreyeT.

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C. Scope of Adarand

Although Ada rand involved government contracting, it is clear from the Supreme 
Court’s decision that the stria scrutiny standard o f review applies whenever the federal 
government voluntarily adopts a racial or ethnic classification as a basis for derisiomnaking.' 
Thus, the impact o f the decision is not confined to contracting, bat will reach race-based 
affirmative action in health and education programs, and in federal employment.* 10 
Furthermore, Ada rand was not a "quota" case: its standards will apply to any classification 
that makes race or ethnicity a basis for decisionmaking.11 Mere outreach and recruitment 
efforts, however, typically should not be subject to the Ada rand standards. Indeed, post- 
Croson cases indicate that such efforts are considered race-neutral means o f increasing 
minority opportunity.12 In some sense, o f course, the targeting o f minorities through 
outreach and recruitment campaigns involves race-conscious action. But the objective there 
is to expand the pool of applicants or bidders to include minorities, not to use race or 
ethnicity in the actual decision. If the government does not use racial or ethnic 
classifications in selecting persons from the expanded pool, Adarand ordinarily would be 
inapplicable.13

* Bv voluntary affirmative action, we mean racial or ethnic classifications that the federal government 
adopts on its own initiative, through legislation, regulations, or internal agency procedures. This should 
be contrasted with affirmative action that is undertaken pursuant to a court-ordered remedial directive in a 
race discrimination lawsuit against the government, or pursuant to a court-approved consent decree settling 
such a suit. Prior to Croson. the Supreme Court bad not definitely resolved the standard of review for 
court-ordered or court-approved affirmative action. See United States v. Paradise. 480 U.S. 149 (1987) 
(court order); Local 93. lnt’l Ass'n of Firefighters v Citv of Cleveland. 478 U.S. 501 (1986) (consent 
decree). The Court has not revisited the issue since Croson was decided. Lower courts have applied 
strict scrutiny to affirmative action measures in consent decrees. See, e g.. Stuart v. Roache. 951 F.2d 
446, 449 (1st Cir. 1991) (Breyer, J.).

10 Title VII of the 1964 Civil Rights Act is the principal federal employment discrimination statute. 
The federal government is subject to its strictures. See 42 U.S.C. § 2000e-17. The Supreme Court has 
held that the Title VII restrictions on affirmative action in the workplace are somewhat more lenient than 
the constitutional limitations. See Johnson v Transportation Agepcv. 480 U.S. 616, 627-28 n.6 (1987). 
But see id. at 649 (O’Connor, J., concurring in the judgment) (expressing view that Title VI] standards for 
affirmative action should be "no different" from constitutional standards).

11 We do not believe that Adarand calls into question federal assistance to historically-black colleges 
and universities.

“ See, e.g.. Peightal v. Metropolitan Dade County. 26 F.3d 1545, 1557-58 (11th Cir. 1994); Billisb 
v. Citv of Chicago. 962 F.2d 1269, 1290 (7th Cir. 1992), vacated op other grounds. 989 F.2d 890 (7th 
Cir.) (en banc), cert, denied. 114 S. Ct. 290 (1993); Coral Constr. Co. v. King County. 941 F.2d 910, 
923 (9th Cir. 1991), cert denied, 502 U.S. 1033 (1992).

13 Outreach and recruitment efforts conceivably could be viewed as race-based decisionmaking of the 
type subject to Adarand if such efforts work to create a "minorities-only" pool of applicants or bidders, or 
if they are so focused on minorities that nonminorities are placed at a significant competitive disadvantage

- 7 -



Adarand does not require stria scrutiny review for programs benefitting Native 
Americans as members of federally recognized Indian tribes. In Morton v. Mancari. 417 
U.S. 535 (1974), the Supreme Court applied rational basis review to a hiring preference in 
the Bureau of Indian Affairs for members of federally recognized Indian tribes. The Court 
reasoned that a tribal c lassification is "political rather than racial in nature," because it is 
"grained to Indians not as a discrete racial group, but, rather, as members o f quasi-sovereign 
tribal entities." I&. at 554. See id. at 553 n.24.

Adarand did not address the appropriate constitutional standard of review for 
affirmative action programs that use gender classifications as a basis for decisionmaking. 
Indeed, the Supreme Court has never resolved the matter.14 However, both before and 
after Croson. nearly all circuit court decisions have applied intermediate scrutiny to 
affirmative action measures that benefit women.15 The Sixth Circuit is the only court that 
has equated racial and gender classifications: purporting to rely on Croson. it held that 
gender-based affirmative action measures are subject to stria scrutiny.16 17 That holding has 
been criticized by other courts of appeals, which have correctly pointed out that Croson does 
not speak to the appropriate standard of review for such measures.11

D. Open Questions on Remand

Adarand did not determine the constitutionality of any particular federal affirmative 
action program. In fact, the Supreme Court did not determine the validity of the federal 
legislation, regulations, or program at issue in Adarand itself. Instead, the Court remanded 
the case to the Tenth Circuit for a determination of whether the measures satisfy strict 
scrutiny.

with respect to access to contracts, grants, or jobs.
14 The lone gender-based affirmative action case that the Supreme Court has decided is Johnsop v. 

Transportation Agencv. 480 U.S. 616 (1987). But Johnson only involved a Title Ml challenge to the use 
of gender classifications — no constitutional claim was brought. at 620 n.2. And as indicated above
(see supra note 10), the Court in Johnson held that the Title VII parameters of affirmative action are not
coextensive with those of the Constitution.

17 See, e.g.- Fnslev Branch. NAACP v. Seibels, 31 F.3d 1548, 1579-80 (11th Cir. 1994); Contractors 
k̂ss’n v Citv of Philadelphia. 6 F.3d 990, 1009-10 (3d Cir. 1993); Lamprecht v. FCC. 958 F.2d 382.
391 (D C. Cir. 1992) (Thomas, J.); Coral Constr. Co. v. King County. 941 F.2d at 930-31;
Gen. Contractors v. Citv and County of San Francisco. 813 F.2d 922, 939 (9th Cir. 1987).

'♦ See Conlin v. Blanchard. 890 F.2d 811, 816 (6th Cir. 1989); |ss. llifi Brunet v. Citv of Columbus. 
1 F.3d 390, 404 (6th Cir. 1993), cert, denied. 114 S. Ct. 1190 (1994).

17 gee, e.g.. Enslev Branch. NAACP v Seibels. 31 F.3d at 1580.
- 8 -



Ada rand left open the possibility that, even under strict scrutiny, programs statutorily 
prescribed by Congress may be entitled to greater deference than programs adopted by state 
and local governments. This is a theme that some of the Justices had explored in prior 
cases. For example, in a portion of her Croson opinion joined by Chief Justice Rehnquist 
and Justice White, Justice O'Connor wrote that Congress may have more latitude than state 
and local governments in utilizing affirmative action. And in his concurrence in Fullilove. 
Justice Powell, applying strict scrutiny, upheld a congressionally mandated program, and in 
so doing, said that be was mindful that Congress possesses broad powers to remedy 
discrimination nationwide. In any event, in Ada rand , the Court said that it did not have to 
resolve whether and to what extent courts should pay special deference to Congress in 
evaluating federal affirmative action programs under strict scrutiny.

Aside from articulating the components o f  the strict scrutiny standard, the Court’s 
decision in Adarand provides little explanation of how the standard should be applied. For 
more guidance, one needs to look to Croson and lower court decisions applying it. That 
exercise is important because Adarand basically extends the Croson rules of affirmative 
action to the federal level -- with the caveat that application of those rules might be 
somewhat less stringent where affirmative action is undertaken pursuant to congressional 
mandate.

n. The Croson Standards

In Croson. the Supreme Court considered a constitutional challenge to a Richmond, 
Virginia ordinance that required prime contractors who received city contracts to subcontract 
at least thirty percent of the dollar amount of those contracts to businesses owned and 
controlled by members of specified racial and ethnic minority groups -- commonly known as 
minority business enterprises ("MBEs"). The asserted purpose of Richmond's ordinance was 
to remedy discrimination against minorities in the local construction industry.

Croson marked the first time that a majority of the Supreme Court held that race- 
based affirmative action measures are subject to strict scrutiny.11 Justice O’Connor's 
opinion in Croson19 said that "the purpose of strict scrutiny is to ‘smoke out' illegitimate 
uses of race by assuring that the legislative body is pursuing a goal important enough to 
warrant use of a highly suspect tool. The test also ensures that the means chosen ‘fit’ this

" Croson was decided by a six-three vote. Five of the Justices in the majority (Chief Justice 
Rehnquist, and Justices White, O’Connor, Scalia, and Kennedy) concluded that strict scrutiny was the 
applicable standard of review. Justice Stevens concurred in part and concurred in the judgment, but 
consistent with his long-standing views, declined to *engag[e] in a debate over the proper standard of 
review to apply in affirmative-action litigation." 488 U.S. at 514 (Stevens, concurring in part and 
concurring in the judgment).

" Justice O’Connor’s opinion was for a majority of the Court in some parts, and for a plurality in 
others.

- 9 -



compelling goal so closely that there is little or no possibility that the motive for the 
classification was illegitimate racial prejudice or stereotype." 488 U.S. at 493 (plurality 
opinion). Ssc al$£ &. at 520 (Scalia, J., concurring in the judgment) ("[Sjtrict scrutiny must 
be applied to all governmental classifications by race, whether or not its asserted purpose is 
'‘remedial' or ‘benign.'"). In short, the compelling interest inquiry centers on "ends" and 

whv the government is classifying individuals on the basis o f race or ethnicity; the 
narrow tailoring inquiry focuses on "means" and asks how the government is seeking to meet 
the objective of the racial or ethnic classification.

Applying strict scrutiny, the Court held that (a) the Richmond MBE program did not 
serve a "compelling interest" because it was predicated on insufficient evidence of 
discrimination in the local construction industry, and (b) it was not "narrowly tailored" to the 
achievement of the city’s remedial objective.

A. Compelling Governmental Interest

l. Remedial Objectives

Justice O'Connor’s opinion in Croson stated that remedying the identified effects of 
past discrimination may constitute a compelling interest that can support the use by a 
governmental institution of a racial or ethnic classification. This discrimination could fall 
into two categories. First, the government can seek to remedy the effects of its own 
discrimination. Second, the government can seek to remedy the effects of discrimination 
committed by private actors within its jurisdiction, where the government becomes a "passive 
participant" in that conduct, and thus helps to perpetuate a system of exclusion. 488 U.S. at 
492 (plurality opinion); jd at 519 (Kennedy. J., concurring in part and concurring in the 
judgment). In either category, the remedy may be aimed at ongoing patterns and practices of 
exclusion, or at the lingering effects of prior discriminatory conduct that has ceased.
Ada rand. 63 U.S.L.W . at 4542 (Souter, J., dissenting) ("The Court has long accepted the 
view that constitutional authority to remedy past discrimination is not limited to the power to 
forbid its continuation, but extends to eliminating those effects that would otherwise persist 
and skew the operation of public systems even in the absence of current intent to practice any 
discrimination.").

Croson requires the government to identify with precision the discrimination to be 
remedied. The fact and legacy of general, historical societal discrimination is an insufficient 
predicate for affirmative action; "While there is no doubt that the sorry history of both 
private and public discrimination in this country has contributed to a lack of opportunities for 
black entrepreneurs, this observation, standing alone, cannot justify a rigid racial quota in the 
awarding of public contracts in Richmond, Virginia." 488 U.S. at 499. isL at 505 ("To 
accept Richmond’s claim that past societal discrimination alone can serve as the basis for 
rigid racial preferences would be to open the door to competing claims for ‘remedial relief 
for every disadvantaged group."). Similarly, "amorphous" claims of discrimination in 
certain sectors and industries are inadequate. !£. at 499 ("[A]n amorphous claim that there

- 10 -



has been past discrimination in a particular industry cannot justify the use of an unyielding 
racial quota."). Such claims "provideQ no guidance for [the government] to determine the- 
precise scope of the injury it seeks to remedy, and would have "no logical stopping point."
Id. at 498 (internal quotations omitted). The Court indicated that its requirement that the 
government identify with specificity the effects of past discrimination anchors remedial 
affirmative action measures in the present. It declared that ‘ [i}n the absence of particularized 
findings" of discrimination, racial and ethnic classifications could be "ageless in their reach 
into the past, and timeless in their ability to affect the future." IsL at 498. (internal 
quotations omitted).

The Court in Croson did not require a judicial determination of discrimination in 
order for a state or local government to adopt remedial racial or ethnic classifications.
Rather, relying on Justice Powell’s plurality opinion in Wygant v . Jackson Board of 
Education. 476 U.S. 267 (1986), the Court said that the government must have a "'strong 
basis in evidence for its conclusion that remedial action was necessary.’" CrPSOP. 488 U.S. 
at 500 (quoting Wygant. 476 U.S. at 277). The Court then suggested that this evidence 
should approach "a prima facie case of a constitutional or statutory violation" of the rights of 
minorities. 488 U.S. at 500.20 Notably, the Court said that significant statistical disparities 
between the level of minority participation in a particular field and the percentage of 
qualified minorities in the applicable pool could permit an inference of discrimination that 
would support the use of racial and ethnic classifications intended to correct those disparities. 
Id, at 507. See i i  at 501 ("There is no doubt that where gross statistical disparities can be 
shown, they alone in a proper case may constitute prima facie proof of a pattern or practice 
of discrimination.") (internal quotations omitted'). But the Court said that a mere 
underrepresentation of minorities in a particular sector or industry when compared to general 
population statistics is an insufficient predicate for affirmative action. Icf ("When special 
qualifications are required to fill particular jobs, comparisons to the general population 
(rather than to the smaller group of individuals who may possess the necessary qualifications) 
may have little probative value.") (internal quotations omitted).

Applying its "strong basis in evidence" test, the Court held that the statistics on which 
Richmond based its MBE program were not probative of discrimination in contracting by the 
city or local contractors, but at best reflected evidence of general societal discrimination. 
Richmond had relied on limited testimonial evidence of discrimination, supplemented by

® Lower courts have consistently said that C tosod requires remedial affirmative action measures to be 
supported by a "strong basis in evidence" that such action is warranted. Peightal v.
Metropolitan Dade County. 26 F.3d 1545, 1553 (11th Cir. 1994); Concrete Works v. City and Countv of 
Denver. 36 F.3d 1513, 1521 (10th Cir. 1994), cert, denied. 115 S. Ct. 1315 (1995); Donaghv v. City of 
Omaha. 933 F.2d 1448, 1458 (8th Cir.), cert, denied. 502 U.S. 1059 (1991). Some courts have said that 
this evidence should rise to the level of prima facie case of discrimination against minorities. See, e.g., 
O'Donnell Constr Co. v. District of Columbia, 963 F.2d 420, 424 (D.C. Cir. 1992); Stuart v. Roache, 
951 F.2d 446, 450 (1st Cir. 1991) (Breyer, J.); Cone Corn v Hillsborough County, 908 F.2d 908, 915 
(11th Cir.), cert, denied. 498 U.S. 983 (1990).

- 11 -



statistical evidence regarding: (i) the disparity between the number of prime contracts 
awarded by the city to minorities during the years 1978-83 (less than one percent) and the 
city’s minority population (fifty percent), and (ii) the extremely low number of MBEs that 
were members of local contractors’ trade associations. The Court found that this evidence 
was insufficient. It said that more probative evidence would have compared, on the one 
hand the number of qualified MBEs in the local labor market with, on the other hand, the 
number o f city contracts awarded to MBEs and the number o f MBEs in the local contractors* 
associations.

In Adarand Justice O’Connor’s opinion noted that "racial discrimination against 
minority groups in this country is an unfortunate reality," and as an example, it pointed to 
the "pervasive, systematic, and obstinate discriminatory conduct" that underpinned the court- 
ordered affirmative action measures that were upheld in United States v. Paradise. 480 U.S. 
149 (1987). 63 U.S.L.W . at 4533 (internal quotations omitted).21 Her opinion did not say, 
however, that only overwhelming evidence of the sort at issue in Paradise can justify 
affirmative action. Again, Croson indicates that what is required is a "strong basis in 
evidence" to support the government’s conclusion that race-based remedial action is 
warranted, and that such evidence need only approach a prima facie showing of 
discrimination against minorities. 488 U.S. at 500. The factual predicate in Paradise plainly 
exceeded a prima facie showing. Post-Croson lower court decisions support the conclusion 
that the requisite factual predicate for race-based remedial action does not have to rise to the 
level of discrimination in Paradise.

The Court in Croson left open the question whether a government may introduce
statistical evidence showing that the pool of qualified minorities would have been larger "but 
for” the discrimination that is to be remedied. Post-Croson lower court decisions have 
indicated that such evidence can be probative of discrimination.::

Croson also did not discuss the weight to be given to anecdotal evidence of 
discrimination that a government gathers through complaints filed with it by minorities or 
through testimony in public hearings. Richmond had relied on such evidence as additional

21 The measures at issue in Paradise were intended to remedy discrimination by the Alabama 
Department of Public Safety, which had not hired a black trooper at any rank for four decades, 480 U.S. 
at 168 (plurality opinion), and then when blacks finally entered the department, had consistently refused to 
promote blacks to the uppeT ranks. Id. at 169-71.

n See, e.g.. Contractors Ass’n v. City of Philadelphia. 6 F.3d 990, 1008 (3d Cir. 1993); O’Donnell 
Constr Co. v. District of Columbia. 963 F.2d 420, 427 (D.C. Cir. 1992); sL Associated Gen.
Contractors v. Coalition for Economic Equity. 950 F.2d 1401, 1415 (9th Cir. 1991) (government had 
evidence that an "old boy network" in the local construction industry bad precluded minority businesses 
from breaking into the mainstream of "qualified" public contractors).

- 12 -



support for its MBE plan, but the Court discounted it. Post-Croson lower court cases, 
however, have said that anecdotal evidence can buttress statistical proof of discrimination.* 23 24 *

In addition, Croson did not discuss which party has the ultimate burden of persuasion 
as to the constitutionality o f  an affirmative action program when it is challenged in court. 
Prior to Croson. the Supreme Court had spelled out the following evidentiary rule: while the 
entity defending a remedial affirmative action measure bears the initial burden o f production 
to show that the measures are supported by "a strong basis in evidence," the "ultimate 
burden” of proof rests upon those challenging the measure to demonstrate that it is 
unconstitutional. Wygant. 476 U .S. at 277-78 (plurality opinion).34 Lower courts 
consistently have said that nothing in Croson disturbs this evidentiary rule.23

Finally, and perhaps most significantly, Croson did not resolve whether a government 
must have sufficient evidence of discrimination at hand before it adopts a racial classification, 
or whether "post-hoc" evidence of discrimination may be used to justify- the classification at a 
later date -- for example, when it is challenged in litigation. The Court did say that 
governments must "identify [past] discrimination with some specificity before they may use 
race-conscious relief.” 488 U.S. at 504. However, every court of appeals to consider the 
question has allowed governments to use "post-enactment" evidence to justify affirmative 
action -- that is, evidence that the government did not consider when adopting a race-based 
remedial measure, but that nevertheless reflects evidence of discrimination providing support 
for the determination that remedial action was warranted at the time of adoption.26 Those

33 £ee. e g . Contractors Ass'n v. City of Philadelphia. 6 F.3d at 1002-03 (while anecdotal evidence of 
discrimination alone rarely will satisfy the Croson requirements, it can place important gloss on statistical 
evidence of discrimination); Coral Constr Co. v King Countv. 941 F.2d at 919 (”[t]he combination of 
convincing anecdotal and statistical evidence is potent;" anecdotal evidence can bring "cold numbers to 
life"); Cone Corp. v. Hillsborough Countv. 908 F.2d at 916 (testimonial evidence adduced by county in 
developing MBE program, combined with gross statistical disparities in minority participation in public 
contracting, provided "more than enough evidence on the question of prior discrimination and need for 
racial classification'').

24 §« also Wygant. 476 U.S. at 293 (O’Connor, J., concurring in part and concurring in the 
judgment) (when the government "introduces its statistical proof as evidence of its remedial purpose, 
thereby supplying the court with the means for determining that the [government] had a firm basis for 
concluding that remedial action was appropriate, it is incumbent upon the [challengers] to prove their case; 
they continue to bear the ultimate burden of persuading the court that the [government’s] evidence did not 
support an inference of prior discrimination and thus a remedial purpose, or that the plan instituted on the 
basis of this evidence was not sufficiently ‘narrowly tailored").

23 See, e g . Concrete Works v City and Countv of Denver. 36 F.3d at 1521-22; Contractors Ass’n v. 
City of Philadelphia. 6 F.3d at 1005; Cone Con? v. Hillsborough Countv. 908 F.2d at 916.

24 5S£ Concrete Works v. Cirv & County of Denver. 36 F.3d at 1521; Contractors Ass’n v. Citv of
Philadelphia. 6 F.3d at 1004); Coral Constr Co. v King County. 941 F.2d at 920. As the Second
Circuit put it when permitting a state government to rely on post-enactment evidence to defend a race-

- 13 -



cojrts have interpreted Croson as requiring that a government have some evidence of 
discrimination prior to embarking on remedial race-conscious action, but not that it marshal 
all such evidence at that time.27 * * *

2. Ngnremgdial Qtawiiycs

Because Richmond defended its MBE program on remedial grounds, the Court in 
Croson did not explicitly address i f  and when affirmative action may be adopted for 
"nonremedial" objectives, such as promoting racial diversity and inclusion. The same is true 
o f the majority opinion in Ada rand since the program at issue in that case also is said to be 
remedial. In his Adarand dissent, Justice Stevens said that the majority’s silence on the 
question does not foreclose the use of affirmative action to serve nonremedial ends. 63 
U.S.L.W . at 4539 (Stevens, J., dissenting). Thus, in the wake o f Croson and Adarand 
there are substantial questions as to whether and in what settings nonremedial objectives can 
constitute a compelling interest.31

To date, there has never been a majority opinion for the Supreme Court that 
addresses the question. The closest the Court has come in that regard is Justice Powell's

based contracting measure, "[t]he law is plain that the constitutional sufficiency of . . . proffered reasons 
necessitating an affirmative action plan should be assessed on whatever evidence is presented, whether 
prior to or subsequent to the program’s enactment." Harrison & Burrowcs Bridge Constructors. Inc v. 
Cuomo. 981 F.2d 50. 60 (2d Cir. 1992).

2~ See Concrete Works v. Cirv and County of Denver. 36 F.3d at 1521 ("Absent any preenactment 
evidence of discrimination, a municipality would be unable to satisfy Croson. However, we do not read 
Croson’s evidentiary requirement as foreclosing the consideration of post-enactment evidence."); Coral 
Constr Co v. King County. 941 F.2d at 920 (requirement that municipality have "some evidence" of 
discrimination before engaging in race-conscious action "does not mean that a program will be 
automatically struck down if the evidence before the municipality at the time of enactment does not 
completely fulfill both prongs of the strict scrutiny test. Rather, the factual predicate for the program 
should be evaluated based upon all evidence presented to the district court, whether such evidence was 
adduced before or after enactment of the [program]."). One court has observed that the "risk of 
insincerity associated with post-enactment evidence ... is minimized" where the evidence "consists 
essentially of an evaluation and re-ordering of [the] pre-enactment evidence" on which a government 
expressly relied in formulating its program. Contractors Ass’n v. City of Philadelphia. 6 F.3d at 1004. 
Application of the post-enactment evidence rule in that case essentially gave the government a period of 
transition in which to build an evidentiary foundation for an affirmative action program that was adopted 
before Croson. and thus without reference to the Croson requirements. In Coral Construction, the Ninth 
Circuit permitted the government to introduce post-enactment evidence to provide further factual support 
for a program that had been adopted after Croson. with the Croson standards in mind. See Coral Constr. 
Co v. King Countv. 941 F.2d at 914-15, 919-20.

l* Given the nation’s history of discrimination, virtually all affirmative action can be considered
remedial in a broad sense. But as Croson makes plain, that history, on its own, cannot properly form the
basis of a remedial affirmative action measure under strict scrutiny.

- 14 -



separate opinion in Regents of the University of California v. Bakke. 438 U.S. 265 (1978), 
which said that a university has a compelling interest in taking the race o f applicants into 
account in its admissions process in order to foster greater diversity among the student 
body.”  According to Justice Powell, this would bring a wider range of perspectives to the 
camp os, and in turn, would contribute to a more robust exchange of ideas -  which Justice 
Powell said was the central mission of higher education and in keeping with the time-honored 
First Amendment value in academic freedom. £fi£ ifiL at 311-14.K Since Bakke. Justice 
Stevens has been the most forceful advocate on the Court for nonremedial affirmative action 
measures. He has consistently argued that affirmative action makes just as much sense when 
it promotes an interest in creating a more inclusive and diverse society for today and the 
future, as when h serves an interest in remedying past wrongs. A da rand. 63 U.S.L.W .
at 4539 (Stevens, J., dissenting); Croson. 488 U .S. at 511-12 & n .l (Stevens, J., 
concurring); Johnson v. Transportation Agency. 480 U.S. 616, 646-47 (1987) (Stevens, J., 
concurring); Wygant. 476 U.S. at 313-15 (Stevens, J., dissenting). As a circuit judge in a 
case involving an ostensibly remedial affirmative action measure, Justice Ginsburg announced 
her agreement with Justice Stevens’ position "that remedy for past wrong is not the exclusive 
basis upon which racial classifications may be justified." O’Donnell Constr. Co. v. District 
of Columbia. 963 F.2d 420, 429 (D.C. Cir. 1992) (Ginsburg, J., concurring) (citing Justice 
Stevens' concurrence in Croson. 488 U.S. at 511).

In Metro Broadcasting, the majority relied on Bakke and Justice Stevens' vision of 
affirmative action to uphold FCC affirmative action programs in the licensing of broadcasters 
on nonremedial grounds; the Court said that diversification of ownership of broadcast 
licenses was a permissible objective of affirmative action because it serves the larger goal of 
exposing the nation to a greater diversity of perspectives over the nation's radio and 
television airwaves. 497 U.S. at 567-68. The Court reached that conclusion under 
intermediate scrutiny, however, and thus did not hold that the governmental interest in 
seeking diversity in broadcasting is "compelling." Ada rand did not overrule the result in 
Metro Broadcasting -- a point not lost on Justice Stevens. See Adarand. 63 U.S.L.W . at 
4539 (Stevens, J., dissenting) ("The majority today overrules Metro Broadcasting only 
insofar as it" is inconsistent with the holding that federal affirmative action measures are 
subject to strict scrutiny. "The proposition that fostering diversity may provide a sufficient 
interest to justify [a racial or ethnic classification] is dqi inconsistent with the Court's holding 
today -- indeed, the question is not remotely presented in this case . . . .").

On the other hand, portions of Justice O’Connor’s opinion in Croson and her 
dissenting opinion in Metro Broadcasting appear to cast doubt on the validity of nonremedial 19 * * *

19 Although Justice Powell wrote for himself in Bakke. his opinion was the controlling one in the case.

50 Although it apparently has not been tested to any significant degree in the courts. Justice Powell’s
thesis may carry over to the selection of university faculty: the greater the racial and ethnic diversity of
the professors, the greater the array of perspectives to which the students would be exposed.

- 15 -



affirmative action programs. In one passage in her opinion in Croson. Justice O’Connor 
stated that affirmative action must be "strictly reserved for the remedial setting." 1 4  at 493 
(plurality opinion). Echoing that theme in her dissenting opinion (joined by Chief Justice 
Rehnquist and Justices Kennedy and Scalia) in Metro Broadcasting. Justice O’Connor urged 
the adoption o f  strict scrutiny for federal affirmative action measures, and asserted that under 
that standard, only one interest has been “recognized" as compelling '*nfuigh to justify eariai 
classifications: “remedying the effects of racial discrimination.” 497 U.S. at 612. Justice 
Kennedy's separate dissent in Metro Broadcasting was also quite dismissive of non-remedial 
justifications for affirmative action; he criticized the majority opinion for “allow[ing] the use 
of racial classifications by Congress untied to any goal of addressing the effects of past race 
discrimination’). 14  at 632 (Kennedy, J., dissenting).

Nowhere in her Croson and Metro Broadcasting opinions did Justice O’Connor 
expressly disavow Justice Powell’s opinion in Bakke. Accordingly, lower courts have 
assumed that Justice O’Connor did not intend to discard Bakke.31 * That proposition is 
supported by Justice O’Connor’s own concurring opinion in Wvgant v, Jackson Board of 
Education. 476 U.S. 267 (1986), in which she expressed approval of Justice Powell’s view 
that fostering racial and ethnic diversity in higher education is a compelling interest. 14. at 
286. Furthermore, in Wygant. Justice O’Connor said that there might be governmental 
interests other than remedying discrimination and promoting diversity in higher education 
that might be sufficiently compelling to support affirmative action. 1 4  For example, Justice 
O’Connor left open the possibility that promoting racial diversity among the faculty at 
primary and secondary schools could count as a compelling interest. 1 4  at 288 n“. In his 
Wvgant dissent, Justice Stevens argued that this is a permissible basis for affirmative action. 
Id. at 313-15 (Stevens, J., dissenting).

On the assumption that Bakke remains the law, it is clear that to the extent affirmative 
action is used to foster racial and ethnic diversity, the government must seek some further 
objective, beyond the mere achievement of diversity itself.33 As Bakke teaches, in higher 
education, that asserted goal is the enrichment of the academic experience. And according to

31 §££ Winter Park Communications. Inc, v. FCC. 873 F.2d 347, 353-54 (D.C. Cir. 1989), affd sub 
B9tli Metro Broadcasting. Inc v. FCC. 497 U.S. 547 (1990); Winter Park. 873 F.2d at 357 (Williams, 
J., concurring in part and dissenting in part); Shurbert Broadcasting. Inc v. FCC. 876 F.2d 902, 942
(D C. Cir. 1989) (Wald, C.J., dissenting), affd sub nom. Metro Broadcasting. Inc, v. FCC. 497 U.S. 
547 (1990). In Davis v. Halpem. 768 F. Supp. 968 (S.D.N.Y. 1991), the court reviewed the law of 
affirmative action in the wake of Croson and Metro Broadcasting, and, citing Justice Powell’s opinion in 
Bakke. said that a university has a compelling interest in seeking to increase the diversity of its student 
body. 14 at 981. S« ajso United States v Board of Educ Township of Piscatawav. 832 F. Supp. 836, 
847-48 (D.N.J. 1993) (under constitutional standards for affirmative action, diversity in higher education 
is a compelling governmental interest) (citing Bakke and Croson).

33 The Court has consistently rejected -racial balancing" as a goal of affirmative action. £« Croson. 
488 U.S. at 507; Johnson. 480 U.S. at 639; Local 28 Sheet Metal Workers’ Int’l Ass’n v. FFOC. 478 
U.S. 421,475 (1986) (plurality opinion); Bakke. 438 U.S. at 307 (opinion of Powell, J.).

- 16 -



the majority in Metro Broadcasting, the asserted independent goal that justifies diversifying 
the owners of broadcast licenses is adding variety to the perspectives that are communicated 
in radio and television. That same kind of analysis must be applied to efforts to promote 
racial and ethnic diversity in other settings.

For instance, diversification o f  the ranks in a law enforces eat agency arguably serves 
vital public safety and operational needs, and thus enhances the agency's ability to carry out 
its functions effectively. See Wygant. 476 U.S. at 314 (Stevens, J., dissenting) ("P]n law 
enforcement . . .  in a city with a recent history o f racial unrest, the superintendent of police 
might reasonably conclude that an integrated police force could develop a better relationship 
with the community and thereby do a more effective job o f maintaining law and order than a 
force composed only of whites."); Paradise. 480 U .S. at 167 n.18 (plurality opinion) (noting 
argument that race-conscious hiring can "restoreO community trust in the fairness of law 
enforcement and facilitate^ effective police service by encouraging citizen cooperation").33 
It is more difficult to identify any independent goal that may be attained by diversifying the 
racial mix of public contractors. Justice Stevens concurred in the judgment in Croson on 
precisely that ground. Citing his own Wygant dissent, Justice Stevens contrasted the 
"educational benefits to the entire student body" that he said could be achieved through 
faculty diversity with the minimal societal benefits (other than remedying past discrimination, 
a predicate that he said was not supported by the evidence in Croson) that would flow from a 
diversification of the contractors with whom a municipality does business. SSS Croson. 488 
U.S. at 512-13 (Stevens. J., concurring in part and concurring in the judgment).
Furthermore, the Court has stated that the desire to develop a growing class of successful 
minority entrepreneurs to serve as "role models" in the minority community is not. on its 
own, a valid basis for a racial and ethnic classification. £eg Croson. 488 U.S. at 497 (citing 
Wygant. 476 U.S. at 276 (plurality opinion)): see also Wygant. 476 U.S. at 288 n" 
(O'Connor, J., concurring).

Diversification of the health services profession was one of the stated predicates of the 
racial and ethnic classifications in the medical school admissions program at issue in Bakke. 
The asserted independent goal was "improving the delivery of health-care services to 
communities currently underserved." Bakke. 438 U.S. at 310. Justice Powell said that ”[i]t 
may be assumed that in some situations a State’s interest in facilitating the health care of its 
citizens is sufficiently compelling to support the use of a suspect classification." IsL The 31

31 al!2 Detroit Police Officers’ Ass’n v. Young. 608 F.2d 671, 696 (6th Cir. 1979), cert, denied. 
452 U.S. 938 (1981) ("The argument that police need more minority officen it not simply that blacks 
communicate better with blacks or that a police department should cater to the public’s desires. Rather, it 
is that effective crime prevention and solution depend heavily on the public support and cooperation which 
result only from public respect and confidence in the police.").

- 17 -



problem in Bakke. however, was that there was "virtually no evidence" that the preference 
for minority applicants was "either needed or geared to promote that goal." Id* u

Assuming that some nonremedial objectives remain a legitimate basis for affirmative 
action after Ada rand, there is a question o f  the nature o f the showing that may be necessary 
to support racial and ethnic classifications that are premised on such objectives. In higher 
education, the link between the diversity o f  the student body and the diversity o f viewpoints 
on the campus does not readily lend itself to empirical proof. Justice Powell did not require 
any such evidence in Bakke. He said that the strong First Amendment protection of 
academic freedom that allows "a university to its own judgments as to education 
includes the selection o f its student body.” Bakke. 438 U .S. at 312. A university is thus 
due some discretion to conclude that a 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 
body and better equip its graduates to render with understanding their vital service to 
humanity." LL at 314.

It could be said that this thesis is rooted in a racial stereotype, one that presumes that 
members of racial and ethnic minority groups have a "minority perspective" to convey. As 
Justice O’Connor stated in Croson. a driving force behind stria scrutiny is to ensure that 
racial and ethnic classifications are not motivated by "stereotype." Croson. 488 U.S. at 493 
(plurality opinion). There are sound arguments to support the contention that seeking 
diversity in higher education rests on valid assumptions. The thesis does not presume that gU 
individuals of a particular race or ethnic background think and a a  alike. Rather, it is 
premised on what seems to be a common sense proposition that in the aggregate, increasing 
the diversity o f the student body is bound to make a difference in the array o f perspectives 
communicated at a university. Metro Broadcastine. 497 U .S. at 579 ("The predictive 
judgment about the overall result o f minority entry into broadcasting is not a rigid 
assumption about how minority owners will behave in every case but rather is akin to Justice 
Powell’s conclusion in Bakke that greater admission of minorities would contribute, on 
average, to the robust exchange o f ideas.") (internal quotations omitted). Nonetheless, after 
Croson and Adarand. a court might demand some proof o f a nexus between the 
diversification of the student body and the diversity of viewpoints expressed on the 
campus.15 Likewise, a court may demand a faoual predicate to support the proposition that 
greater diversity in a law enforcement agency will serve the operational needs o f the agency * **

** Aside from the proffered justification in Bakke. the government may have other reasons for —  
to Increase the number of minority health professionals.

** Justice Powell cited literature on this subject in support of his opinion in Bakke. See 438 U.S. at 
312-13 n.48, 315 n.50.

- 1 8 -



and improve its performance,1* or that minority health care professionals are more likely to 
work in medically underserved communities.17

B. Narrow Tailoring Test

In addition to advancing a compelling goal, m y  governmental use of race must also 
be "narrowly tailored." There appear to be two underlying purposes o f the narrow tailoring 
test: first, to ensure that race-based affirmative action is the product of careful deliberation, 
not hasty decisionmaking; and, second, to ensure that such action is truly necessary, and that 
less intrusive, efficacious means to the end are unavailable. As h has been applied by the 
courts, the factors that typically make up the "narrow tailoring" test are as follows: (i) 
whether the government considered race-neutral alternatives before resorting to race­
conscious action; (ii) the scope of the affirmative action program, and whether there is a 
waiver mechanism that facilitates the narrowing o f the program’s scope; (iii) the manner in 
which is used, that is, whether race is a factor in determining eligibility for a program or 
whether race is just one factor in the decisionmaking process; (iv) the comparison of any 
numerical target to the number of qualified minorities in the relevant sector or industry; (v) 
the duration of the program and whether it is subject to periodic review; and (vi) the degree 
and type of burden caused by the program. In Adarand. the Supreme Court referred to its 
previous affirmative action decisions for guidance on what the narrow tailoring test emails.
It specifically mentioned that when the Tenth Circuit reviewed the DOT program at issue in 
Adarand under intermediate scrutiny, it had not addressed race-neutral alternatives or the 
duration of the program.

Before describing each of the components, three general points about the narrow 
tailoring test deserve mention. First, it is probably not the case that an affirmative action 
measure has to satisfy every factor. A strong showing with respect to most of the factors 
may compensate for a weaker showing with respect to others.

Second, all of the factors are not relevant in every case. For example, the objective 
of the program may determine the applicability or weight to be given a factor. The factors 
may play out differently where a program is nonremedia].

Third, the narrow tailoring test should not necessarily be viewed in isolation from the 
compelling interest test. To be sure, the inquiries are distinct: as indicated above, the 
compelling interest inquiry focuses on the ends o f an affirmative action measure, whereas the

* 5s* Haves v. North State Law Enforcement Officers Ass’n. 10 F.3d 207, 215 (4th Cir. 1993) 
(although the use of racial classifications to foster diversity of police department could be a constitutionally 
permissible objective, city failed to show a link between effective law enforcement and greater diversity in the department's ranks).

77 See Bakjce. 438 L.S. at 311 (opinion of Powell, J.) (noting lack of empirical data to support medical 
school’s claim that minority doctors will be more likely to practice in a disadvantaged community).

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narrow tailoring inquiry focuses on the means. However, as a practical matter, there may be 
an interplay between the two. There is some hint o f this in Croson. In several places, the 
Court said that the weak predicate of discrimination on which Richmond acted could not 
justify the adoption of a rigid racial quota ~  which suggests that if Richmond had opted for 
some more flexible measure die Court might have been less demanding when reviewing the 
evidence of discrimination. By the same token, the more compelling the interest, perhaps 
less narrow tailoring is required. For example, in Sheet Metal Workers v FF.OC. 478 U.S. 
421 (1986), and United States v. Paradise. 480 U.S. 149 (1987), the Supreme Court upheld 
what on their face appear to be rather rigid classifications to remedy egregious and persistent 
discrimination.

However, it bears emphasizing that the Supreme Court has never explicitly recognized 
any trade-off between the compelling interest and narrow tailoring tests. It is also far from 
clear that the Court in Croson would have found that a more flexible MBE program, 
supported by the generalized evidence of discrimination on which Richmond relied, could 
withstand strict scrutiny. In addition, the membership of the Court has changed dramatically 
in the years since Sheet Metal Workers and Paradise. Both cases were decided by five-four 
margins, and only one member of the majority (Justice Stevens) remains. And while Justice 
O'Connor agreed with the majority in Sheet Metal Workers and Paradise that ample evidence 
of deeply entrenched discrimination gave rise to a very weighty interest in race-based action, 
she dissented on the ground that the particular remedies selected were too rigid.

1. Race-Neutral Alternatives

In Croson. the Supreme Court said that the Richmond MBE program was not 
"narrowly tailored," in pan because the city apparently had not considered race-neutral 
means to increase minority participation in contracting before adopting its race-based 
measure. The Court reasoned that because minority businesses tend to be smaller and less- 
established, providing race-neutral financial and technical assistance to small and/or new' 
firms and relaxing bonding requirements might achieve the desired remedial results in public 
contracting -- increasing opportunities for minority businesses. 488 U.S. at 507, 510.
Justice Scalia suggested an even more aggressive idea: "adopt a preference for small 
businesses, or even for new businesses -- which would make it easier for those previously 
excluded by discrimination to enter the field. Such programs may well have a racially 
disproportionate impact, but they are not based on race." IsL at 526 (Scalia, J., concurring). 
As such, they would not be subjected to strict scrutiny.

The Court in Croson did not specify the extent to which governments must consider 
race-heutral measures before resorting to race-conscious action. It would seem that the 
government need not first exhaust race-neutral alternatives, but only give them serious

- 20 -



attention.”  This principle would comport with the purposes of ensuring that race-based 
remedies are used only when, after careful consideration, a government has concluded that 
less intrusive means would not work. It also comports with Justice Powell's view that in the 
remedial setting, the government need not use the "least restrictive means" where they would 
not accomplish the desired ends as well. S s  Fullilove. 448 U.S. at 508 (Powdl, J., 
concurring); j g  also Wvgant. 476 U.S. at 280 n.6 (plurality opinion of Justice PoweD) 
(narrow tailoring requirement ensures that "less restrictive means" are used when they would 
promote the objectives of a racial classification "about as well") (internal quotations 
omitted).”

This approach gives the government a measure of discretion in determining whether 
its objectives could be accomplished through some other avenue. In addition, under this 
approach, the government may not be obliged to consider race-neutral alternatives every time 
that it adopts a race-conscious measure in a particular field. In some situations, the 
government may be permitted to draw upon a previous consideration of race-neutral 
alternatives that it undertook prior to adopting some earlier race-based measure.* 40 In the 
absence of prior experience, however, a government should consider race-neutral alternatives 
at the time it adopts a racial or ethnic classification. More fundamentally, even where race- 
neutral alternatives were considered, a court might second-guess the government if the court 
believes that an effective race-neutral alternative is readily available and hence should have 
been tried. £eg Metro Broadcasting. 497 U.S. at 625 (O’Connor, J., dissenting) (FCC 
affirmative action programs are not narrowly tailored, in pan, because "the FCC has never 
determined that it has any need to resort to racial classifications to achieve its asserted 
interest, and it has employed race-conscious means before adopting readily available race- 
neutral, alternative means"); United States v. Paradise, 480 U.S. at 199-200 (O’Connor, J., 
dissenting) (district court’s race-based remedial order was not narrowly tailored because the 
court "had available several alternatives" that would have achieved the objectives in a less 
intrusive manner).41

31 £ee Coral Constr King County. 941 F.2d at 923 ("[W]hile strict scrutiny requires serious, good 
faith consideration of race-neutral alternatives, strict scrutiny does not require exhaustion of every such 
possible alternative.").

" £f Billish v Citv of Chicago. 989 F.2d 890, 894 (7th Cir.) (en banc) (Posner, J.) (in reviewing 
affirmative action measures, courts must be "sensitiv[e] to the importance of avoiding racial criteria . . . 
whenever it is possible to do so, [as] Croson requires"), cert, denied. 114 S. Ct. 290 (1993).

40 Contractors Ass’n v. Citv of Philadelphia. 6 F.3d at 1009 n.18.
41 Sge also Fnslev Branch. NAACP v. Seibels. 31 F.3d 1548, 1571 (11th Cir. 1994) (city should have 

implemented race-neutral alternative of establishing non-discriminatory selection procedures in police and 
fire departments instead of adopting race-based procedures; "continued use of discriminatory tests. . . 
compounded the very evil that [race-based measures] were designed to eliminate"); Aiken v. Citv of 
Memphis. 37 F.3d 1155, 1164 (6th Cir. 1994) (remanding to loweT court, in part, because evidence 
suggested that the city should have used obvious set of race-neutral alternatives before resorting to race­

- 21 -



2. Sgppg of Proeram/Administrative Waivers

Justice O’Connor's opinion for the Court in Croson criticized the scope of 
Richmond’s thirty percent minority subcontracting requirement, calling it a "rigid numerical 
quota that did not permit consideration, through some form of administrative waiver 
mechanism, of whether particular individuals benefiting from the ordinance had suffered 
from the effects of the discrimination that the city was seeking to remedy. 488 U.S. at 508. 
At first blush, this criticism of the Richmond plan may appear to conflict with previous 
Court decisions, joined by Justice O’Connor, that held that iace-based remedial measures 
need not be limited to persons who were the victims of discrimination. (See supra p. 5.) 
Upon closer reading, however, Croson should not be interpreted as introducing a "victims- 
only" requirement through the narrow tailoring test.42 43 * 45 The Court’s rejection in Adarand of 
Justice Scalia’s position that compensation is due only to individuals who have been 
discriminated against personally provides further confirmation that Croson did not impose 
any such requirement.

The Court's focus in Croson on individualized consideration of persons seeking the 
benefit of a racial classification appears to have been animated by three separate concerns 
about the scope of the Richmond plan. First, the Court indicated that in order for a remedial 
affirmative action program to be narrowly tailored, its beneficiaries must be members of 
group? that were the victims of discrimination. The Court faulted the Richmond plan 
because it was intended to remedy discrimination against African-American contractors, but 
included among its beneficiaries Hispanics, Asian-Americans, Native-Americans, Eskimos, 
and Aleuts -- groups for which Richmond had proffered "absolutely no evidence of past 
discrimination." Id  at 506. Therefore, the Court said, even if the Richmond MBE program 
was "’narrowly tailored’ to compensate African-American contractors for past discrimination, 
one may legitimately ask why they are forced to share this ’remedial relief with an Aleut 
citizen who moves to Richmond tomorrow?" I£ /3 Second, the Court said that the 
Richmond plan was not even narrowly tailored to remedy discrimination against black

conscious measures).
42 Most lower courts have not construed Croson in that fashion. See, e.g.. Billish v City of Chicago.

962 F.2d 1269, 1292-94 (7th Cir. 1992), rev’d on other grounds. 989 F.2d 890 (7th Cir.) (en baDc), cert’. 
denied, 114 s Ct 290 (1993); Coral Constr Co. v. King County. 941 F.2d at 925-26 n. 15; Cunico v
Pueblo School Pi$t. No 60. 917 F.2d 431, 437 (10th Cir. 1990). But see Winter Park v Frr 873 F.2d 
347, 367-68 (D.C. Cir. 1989) (Williams, J., concurring in pan and dissenting in pan) (interpreting 
£E2*2fl « requiring that racial classifications be limited "to victims of prior discrimination")- Main Line 
Pavjng Co. v. Poarcj of Educ., 725 F. Supp. 1347, 1362 (E.D. Pa. 1989) (MBE program not narrowly 
tailored, in pan, because it "contained] no provision to identify those who were victims of past 
discrimination and to limit the program’s benefits to them").

45 Q’Pomell Copstr. Co v. District of Columbia. 963 F.2d at 427 (MBE program was not 
narrowly tailored because of "random inclusion of racial groups for which there was no evidence of past discrimination").

- 22 -



contractors because "a successful black entrepreneur . . . from anywhere in the country" 
could reap its benefits. IsL at 508. That is, the geographic scope of the plan was not 
sufficiently tailored.44 Third, the Court contrasted the "rigidity" of the Richmond plan with 
the flexible waiver mechanism in the ten percent minority participation requirement that was 
upheld in Fullilove. As the Court in Crosoa described it, the requirement in Fullilove could 
be waived where a minority business charged a "higher price [that] was not attributable to 
the effects o f past discrimination." Id* & £ Fullilove. 448 U.S. at 488 (plurality opinion). 
The theory is that where a business is struggling to overcome discrimination, it may not have 
the capacity to submit a competitive bid. That an effective waiver provision allows for 
"individualized consideration" o f a particular minority contractor’s bid does not mean that the 
contractor has to be a "victim" o f a specific instance o f discrimination. It does mean that if 
the contractor is wealthy and has entered the mainstream o f contractors in the community, a 
high bid might not be traceable to the discrimination that a racial or ethnic classification is 
seeking to redress. Instead, such a bid might reflect an effort to exploit the classification.45

3. Manner in Which Race is Used

The Court’s attack on the "rigidity" of the Richmond ordinance also implicates 
another common refrain in affirmative action jurisprudence: the manner in which race is 
used is an integral part of the narrow tailoring requirement. The clearest statement of the 
Court's somewhat mixed messages in this area is that programs that make race or ethnicity a 
requirement of eligibility for particular positions or benefits are less likely to survive 
constitutional challenge than programs that merely use race or ethnicity as one factor to be 
considered under a program open to all races and ethnic groups.4* * 41 * * 44 *

44 Compare Associated Gen Contractors v Coalition for Economic Eauitv. 950 F.2d at 1418 (MBE 
program intended to remedy discrimination against minorities in county construction industry was 
narrowly tailored, in part, because scope of beneficiaries was limited to minorities within the county) with 
Podbcreskv v. Kirwan. 38 F.3d 147, 159 (4th Cir.) (scholarship program intended to remedy 
discrimination against African-Americans in Maryland was not narrowly tailored, in pan, because African- 
Americans from outside Maryland were eligible for the program), cert, denied. 115 S. Ct. 2001 (1995).

41 S<* Milwaukee County Pavers Ass’n v. Fiedler. 922 F.2d 419, 425 (7th Cir.) (noting that 
administrative waiver mechanism enabled state to exclude from scope of beneficiaries of affirmative action 
plan in public contracting ’two wealthy black football'players’ who apparently could compete effectively 
outside the plan), cert, denied. 500 U.S. 954 (1991); Concrete General. Inc, v. Washington Suburban
Sanitary Comm’n. 779 F. Supp. 370, 381 (D. Md. 1991) (MBE program not narrowly tailored, in part, 
because it had ’no provision to ’graduate' from the program those contracting firms which have 
demonstrated the ability to effectively compete with non-MBE’s in a competitive bidding process’); see 
also Shurberg Broadcasting. Inc v. FCC. 876 F.2d at 916 (opinion of Silberman, J.) (’There must be
some opportunity to exclude those individuals for whom affirmative action is just another business 
opportunity.').

44 The factor that we labeled above as "scope of beneficiaries/administrative waivers* is sometimes
considered by courts under the heading of "flexibility", along with a consideration of the manner in which 
race is used. For the sake of clarity we have divided them into two separate components of the narrow

- 23 -



Two types of racial classifications are subject to criticism as being too rigid. First 
and most obvious is an affirmative action program in which a specific number of positions 
are set aside for minorities. The prime example is the medical school admissions program 
that the Court invalidated in BafciiC- Justice Powell's pivotal opinion in the case turned 
squarely on the fact that the pro gram reserved sixteen percent a t the skits at the 
school for members o f racial and ethnic minority groups. Another example o f this type o f  
classification is the program upheld in Fullilove. It provides that, except where the Secretary 
o f Commerce determines otherwise, at least ten percent o f the amount o f federal grants for 
certain public works projects must be expended by grantees to purchase goods or services 
from minority-owned businesses. 42 U .S.C . (  6705(f)(2).

The second type of classification that is vulnerable to attack on flexibility grounds is a 
program in which race or ethnicity is the sole or primary factor in determining eligibility. 
One example is the FCC’s "distress sale" program, which allows a broadcaster whose 
qualifications have been called into question to transfer his or her license prior to an FCC 
revocation hearing, provided the transferee is a minority-owned business.* 47 * Another 
example of affirmative action programs in which race or ethnicity is a requirement of 
eligibility are college scholarships that are reserved for minorities.41

Under both types of classifications, persons not within the designated categories are 
rendered ineligible for certain benefits or positions.49 Justice Powell’s opinion in Bakke

tailoring test.
47 The distress sale program was upheld under intermediate scrutiny in Metro Broadcasting.
41 There is a plausible distinction between college scholarships that are reserved for minorities and 

admissions quotas that reserve places at a college for minorities. In Podbereskv v. Kirwan. 38 F.3d 147 
(4tb Cir 1994), cert, denied. 115 S. Ct. 2001 (1995), the Fourth Circuit held that a college scholarship 
program for African Americans was unconstitutional under Croson. The Fourth Circuit’s decision, 
however, did not equate the scholarship program with the admissions quota struck down in Bakke. and it 
did not turn on the fact that race was a requirement of eligibility for the program.

49 The statutes and regulations under which DOT has established the contracting program «t issue in 
Adarand are different. Racial and ethnic classifications are used in the form of a presumption that 
members of minority groups are ’socially disadvantaged.* However, that presumption is rebuttable, and 
members of nonminority groups are eligible for the program ’on the basis of clear and convincing 
evidence* that they are socially disadvantaged. Adarand. 63 U.S.L.W. at 4524. jgg at 4540 (Stevens, 
J., dissenting) (arguing that the relevant statutes and regulations in Adarand are better tailored than the 
Fullilove legislation, because they *doQ not make race the sole criterion of eligibility for participation in 
the program.* Members of racial and ethnic are presumed to be disadvantaged, but the presumption is 
rebuttable, and even if it does not get the presumption, *a small business may qualify [for the program] by 
showing that it is both socially and economically disadvantaged’).

- 24 -



rested on the fact that the admissions program at issue was a quota that saved places for 
minorities solely on the basis of their race.30 As Justice Powell put it, such a program

tells applicants who are not Negro, Asian, or Chicano that they 
are totally excluded from a specific percentage c€ the so ts in an 
entering class. No matter how strong their qualifications, 
quantitative and extracurricular, including their own potential for 
contribution to educational diversity, they are never afforded the 
chance to compete with applicants from the preferred groups for 
the special admissions seats.

438 U.S. at 319. Justice Powell contrasted admissions programs that require decisions based 
"solely" on race and ethnicity, id* at 315, with programs in which race or ethnic background
is simply one factor among many in the admissions decision. Justice Powell said that in the 
latter type of program, "race or ethnic background may be deemed a ‘plus’ in a particular 
applicant’s file, yet it does not insulate the individual from comparison with all other 
candidates for the available seats." Id. at 317. In Justice Powell's view, such programs are 
sufficiently flexible to meet the narrow tailoring requirement.

This line of reasoning also resonates in Johnson v. Transportation Agency. 480 U.S. 
616 (1987). There, the Supreme Court upheld an affirmative action plan under which a state 
government agency considered the gender of applicants31 as one factor in making certain 
promotion decisions. The Court noted that the plan "set[] aside no positions for women," 
but simply established goals for female representation that were not "construed" by the 
agency as "quotas." at 638. The Court further observed that the plan "merely 
authorize^] that consideration be given to affirmative action concerns when evaluating 
qualified applicants." Id. The Court stressed that in the promotion decision in question,
"sex . . . was but one of numerous factors [that were taken] into account." J d  The 
agency’s plan "thus resemble[d]" the type of admissions program "approvingly noted by 
Justice Powell" in Bakke: it "requires women to compete with all other qualified applicants. 
No persons are automatically excluded from consideration; all are able to have their 
qualifications weighed against those of other applicants." IdL also id. at 656-57 
(O’Connor, J., concurring in judgment) (agency’s promotion decision was not made "solely 
on the basis of sex;" rather, "sex was simply used as a ‘plus factor’").

30 Bakke is the only Supreme Court affirmative action case that ultimately turned on the "quota" issue. 
In Croson. the Court referred disparagingly to the thirty percent minority subcontracting requirement at 
issue in the case as a "quota." but that was not in itself the basis for the Court’s decision.

31 Although Johnson was a Title VI] gender classification case, its reasoning as to the distinction 
between quotas and goals is instructive with respect to the constitutional analysis of racial and ethnic 
classifications.

- 25 -



Finally, Croson itself touches on the point. The Court said that in the absence of a 
waiver mechanism that permitted individualized consideration of persons seeking a share of 
city contracts pursuant to the requirement that thirty percent of the dollar value of prime 
contracts go to minority subcontractors, the Richmond plan was "problematic from an equal 
protection standpoint because [it made] the color o f an applicant's skin the sole relevant 
consideration." 488 U.S. at 508.

4. Comparison o f Numerical Target to Relevant Market

Where an affirmative action program is justified on remedial grounds, the Court has 
looked at the size o f any numerical goal and its comparison to the relevant labor market or 
industry. This factor involves choosing the appropriate measure of comparison. In Croson. 
Richmond defended its thirty percent minority subcontracting requirement on the premise that 
h was halfway between .067 percent — the percentage o f city contracts awarded to African- 
Americans during the years 1978-83 -  and 50 percent -  the African-American population of 
Richmond. The Court in Croson demanded a more meaningful statistical comparison and 
much greater mathematical precision. It held that numerical figures used in a racial 
preference must bear a relationship to the pool of qualified minorities. Thus, in the Court's 
view, the thirty percent minority subcontracting requirement not narrowly tailored, because it 
was tied to the African-American population of Richmond, and as such, rested on the 
assumption that minorities will choose a particular trade "in lockstep proportion to their 
representation in the local population." 488 U.S. at 507.J:

5. Duration and Periodic Review

Under Croson. affirmative action represents a "temporary” deviation from "the norm 
of equal treatment of all racial and ethnic groups.” Croson. 488 U.S. at 510. A particular 
measure therefore should last only as long as it is needed. £se Fullilove. 448 U.S. at 513 
(Powell, J., concurring). Given this imperative, a racial or ethnic classification is more 
likely to pass the narrow tailoring test if it has a definite end-date,32 33 or is subject to

32 Compare Aiken v. Cirv of Memphis. 37 F.3d ai 1165 (remanding to lower court, in part, because 
race-based promotion goals in consent decree were tied to "undifferentiated" labor force statistics; 
instructing district court on remand to determine whether racial composition of city labor force "differs 
materially from that of the qualified labor pool for the positions" in question) with Edwards v. City of 
Houston. 37 F.3d 1097, 1114 (5th Cir. 1994) (race-based promotion goals in city police department were 
narrowly tailored, in part, because the goals were tied to the number of minorities with the skills for the 
positions in question), reh’g granted. 49 F.3d 1048 (5th Cir. 1995).

33 Paradise. 480 U.S. at 178 (plurality opinion) (race-based promotion requirement was narrowly 
tailored, in pan, because it was "ephemeral," and would "endureQ only until" non-discriminaiory 
promotion procedures were implemented); Sheet Metal Workers. 478 U.S. at 487 (Powell, J., concurring) 
(race-based hiring goal was narrowly tailored, in pan, because it "was not imposed as a permanent 
requirement, but [was] of limited duration"); Fullilove. 448 U.S. at 513 (Powell, J., concurring) (race- 
based classification in public works legislation was narrowly tailored, in pan, because it was "not a

- 26 -



meaningful periodic review that enables the government to ascertain the continued need for 
the measure. The Supreme Court has said that a set end-date is less important where a 
program does not establish specific numerical targets for minority participation. Johnson.
480 U.S. at 640. However, it remains important for such a program to undergo periodic 
review. 5 a  i i .  639-40.

Simply put, a racial or ethnic classification that was justified at the point of its 
adoption may no longer be required at some future point. If the classification is subject to 
reexamination from time to time, the government can react to changed circumstances by fine- 
tuning the classification, or discontinuing it if warranted. 5 a  Fullilove. 448 U.S. at 489 
(plurality opinion); s a  alS£ Metro Broadcasting. 497 U.S. at 594; Sheet Metal Workers. 478 
U.S. at 478 (plurality opinion); id* * at 487-88 (Powell, J., concurring).

6. Burden

Affirmative action necessarily imposes a degree o f burden on persons who do not 
belong to the groups that are favored by a racial or ethnic classification. The Supreme Court 
has said, however, that some burdens are acceptable, even when visited upon individuals 
who are not personally responsible for the particular problem that the classification seeks to 
address. £e§ Wygant. 475 u .S . at 280-81 (plurality opinion) ("As pan of this Nation’s 
dedication to eradicating racial discrimination, innocent persons may be called upon to bear 
some of the burden of the remedy."). This was implicitly reaffirmed in Croson and 
Adarand: in both cases, the Coun "recognize[d] that any individual suffers an injury when he 
or she is disadvantaged by the government because of his or her race, whatever that race 
may be,"54 but declined to hold that the imposition of that burden pursuant to an affirmative 
action measure is automatically unconstitutional.

In some situations, however, the burden imposed by an affirmative action program 
may be too high. As a general principle, a racial or ethnic classification crosses that 
threshold when it "unsettled] . . . legitimate, firmly rooted expectation^],"55 or imposes 
the "entire burden . . .  on particular individuals."56 Applying that principle in an 
employment case where seniority differences between minority and nonminority employees 
were involved, a plurality of the Coun in Wvgant stated that race-based layoffs may impose 
a more substantia] burden than race-based hiring and promotion goals, because "denial of a

permanent part of federal contracting requirements"); O’Donnell Constr Co v. District of Columbia. 963 
F.2d at 428 (ordinance setting aside a percentage of city contracts for minority businesses was not 
narrowly tailored, in pan, because it contained no "sunset provision" and no "end [was] in sight”).

* Adarand. 63 U.S.L.W. at 4531 (citing Croson').
' 35 Johnson. 480 U.S. at 638.
34 Sheet Metal Workers. 478 U.S. at 488 (Powell, J., concurring).

- 27 -



future employment opportunity is not as intrusive as loss of an existing job." Wygant. 476 
U.S. at 282-83; s k  also id* at 294 (White, J., concurring). In a subsequent case, however, 
Justice Powell warned that "it is too simplistic to conclude that hiring [or other employment] 
goals withstand constitutional muster whereas layoffs do not . . .  . The proper constitutional 
inquiry focuses an the effect, if any, and the diffuseness of the burden imposed on innocent 
nonminorities, not on the label applied to the particular employment plan at issue." Sheet 
Metal Workers. 478 U.S. at 488 n.3 (Powell, J., concurring).

In the contracting area, a racial or ethnic classification would upset settled 
expectations if it impaired an existing contract that had been awarded to a person who is not 
included in the classification. This apparently occurs rarely, if  at all, in the federal 
government. A more salient inquiry therefore focuses on the scale of the exclusionary effect 
o f a contracting program. For example, in Fullilove. Justice Powell thought h salient that 
the contracting requirement at issue in the case reserved for minorities a very small amount 
o f total funds for construction work in the nation (less than one percent), leaving 
nonminorities able to compete for the vast remainder. For Justice Powell, this rendered the 
effect of the program "limited and so widely dispersed that its use is consistent with 
fundamental fairness." Fullilove. 448 U.S. at 515. In some instances, conversely, the 
exclusionary effect of racial classifications in contracting may be considered too large. For 
example, the lower court in Croson held that Richmond's thirty percent minority 
subcontracting requirement imposed an impermissible burden because it placed nonminorities 
at a great "competitive disadvantage." J A. Croson Co. v. Citv of Richmond. 822 F.2d 
1355, 1361 (4th Cir. 1987). Similarly, an affirmative action program that effectively shut 
nonminority firms out of certain markets or particular industries might establish an 
impermissible burden. For example, the dissenters in Metro Broadcasting felt that the 
FCC's distress sale unduly burdened nonminorities because it "created a specialized market 
reserved exclusively for minority controlled applicants. There is no more rigid quota than a 
100% set-aside . . . .  For the would-be purchaser or person who seeks to compete for the 
station, that opportunity depends entirely upon race or ethnicity." 497 U.S. at 630 
(O’Connor, J., dissenting). The dissenters also dismissed the majority’s contention that the 
impact of distress sales on nonminorities was minuscule, given the small number of stations 
transferred through those means. The dissenters said that ”[i]t is no response to a person 
denied admission at one school, or discharged from one job, solely on the basis of race, that 
other schools or employers do not discrimina^." IsL

C. The Post-Croson Landscape at the State and Local Level

Croson has not resulted in the end of affirmative action at the state and local level. 
There is no doubt, however, that Croson. in tightening the constitutional parameters, has 
diminished the incidence of such programs, at least in contracting and procurement. The 
post-Croson experience of governments that continue to operate affirmative action programs

- 28 -



in that area is instructive.37 * * 40 Many governments reevaluated their MBE programs in light of 
Croson. and modified them to comport with the applicable standards. Typically, the 
centerpiece of a government’s efforts has been a "disparity study," conducted by outside 
experts, to analyze patterns and practices in the local construction industry. The purpose of 
a disparity study is to determine whether there is evidence of discrimination against 
minorities in the local construction industry that would justify the use of remedial racial and 
ethnic classifications in contracting and procurement. Some studies also address the efficacy 
of race-neutral alternatives. In addition to obtaining a disparity study, some governments 
have held public hearings in which they have received evidence about the workings of the 
local construction industry.

Post-Croson affirmative action programs in contracting and procurement tend to 
employ flexible numerical goals and/or bidding preferences in which race or ethnicity is a 
"plus" factor in the allocation decision, rather than a hard set-aside o f the sort at issue in 
Croson. It appears that many o f the post-Croson contracting and procurement programs that 
rest on disparity studies have not been challenged in court.3' At least one of the programs 
was sustained in litigation.”  Another was struck down as inconsistent with the Croson 
standards.60 Challenges to other programs were not resolved on summary judgment, and

37 A comprehensive review of voluntary affirmative action in public employment at the state and local 
level after Croson is beyond the scope of this memorandum. We note that a number of the programs have 
involved remedial racial and ethnic classifications in connection with hiring and promotion decisions in 
police and fire departments. Some of the programs have been upheld, and others struck down. Compare 
Peiehtal v. Metropolitan Dade County. 26 F.3d 1545 (11th Cir. 1994) (upholding race-based hiring goal 
in county fire department under Croson) with Long v Cirv of Saginaw. 911 F.2d 1192 (6th Cir. 1990) 
(striking down race-based hiring goal in city police department under Croson and Wygant).

" That has been true in Richmond. It is our understanding that the city conducted a post-Croson 
disparity study and enacted a new MBE program that establishes a bidding preference of *20 points* for 
prime contractors who pledge to meet a goal of subcontracting sixteen percent of the dollar value of a city 
contract to MBEs. The program works at the "prequalification* stage, when the city is determining its 
pool of eligible bidden on a project. Once the pool is selected, the low bidder is awarded the contract.

* Associated Gen. Contracton v. Coalition for Economic Equity. 950 F.2d 1401 (9th Cir. 1991).
40 Associated Gen. Contracton v. City of New Haven. 791 F. Supp. 941 (D. Conn. 1992), vacated on 

mootness grounds. 41 F.3d 62 (2d Cir. 1994).
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were remanded for further fact finding.61 Contracting and procurement programs that were 
not changed after Croson have met with a mixed reception in the courts.62

m . Application o f the Croson Standards at the Federal Level

In essence, Adarand federalizes Croson. with one important caveat; Congress may be 
entitled to some deference when it acts on the basis o f race or ethnicity to remedy the effects 
of discrimination. The Court in Adarand hinted that at least where a federal affirmative 
action program is congressionally mandated, the Croson standards might apply somewhat 
more loosely. The Court concluded that it need not resolve whether and to what extent the 
judiciary should pay special deference to Congress in this area. The Court did, however, 
dte the opinions o f various Justices in Fullilove. Croson. and Metro Broadcasting concerning 
the significance of Congress’ express constitutional power to enforce the antidiscrimination 
guarantees of the Thirteenth and Fourteenth Amendments -- under Section 2 of the former 
and Section 5 of the latter — and the extent to which courts should defer to exercises of that 
authority that entail the use of racial and ethnic classifications to remedy discrimination.
63 U.S.L.W . at 4531. Some of those opinions indicate that even under stria scrutiny, 
Congress does not have to make findings of discrimination with the same degree of precision 
as a state or local government, and that Congress may be entitled to some latitude with 
respect to its selection of the means to the end of remedying discrimination.63

61 Coral Constr Co v. King County. 941 F.2d 910 (9th Cir. 1991), cert denied. 502 U.S. 1033 
(1992); Concrete Works v City and Countv of Denver. 36 F.3d 1513 (10th Cir. 1994), cert, denied. 115 
S. Ct. 1315 (1995). The courts in these two cases commented favorably on aspects of the programs at 
issue and the disparity studies by which they are justified.

45 We are aware of at least one such program that survived a motion for summary judgment and 
apparently is still in effect today. S<* Cone Coro, v Hillsborough County. 908 F.2d 908 (11th Cir.), 
cert, denied. 498 U.S. 983 (1990). Others have been invalidated. 5«, e.g . O’Donnell Constr. Co. v. 
District of Columbia. 963 F.2d 420 (D.C. Cir. 1992); Contractors' Assoc, v. Citv of Philadelphia. WL 
11900 (E.D. Pa. Jan. 11, 1995); Arrow Office Supply Co v. Citv of Detroit. 826 F. Supp. 1072 (E.D. 
Mich. 1993); F. Buddie Constr. Co. v. City of Elvria. 773 F. Supp. 1018 (N.D. Ohio 1991); Main Line 
Paving Co v. Board of Educ.. 725 F. Supp. 1349 (E.D. Pa. 1989).

43 Section 1 of the Fourteenth Amendment prohibits states and municipalities from denying persons the 
equal protection of the laws. Section 5 gives Congress the power to enforce that prohibition. Because 
Section 1 of the Fourteenth Amendment only applies to stales and municipalities, jee United States v. 
Guest. 383 U.S. 745, 755 (1966), it is uncertain whether Congress may act under Section 5 of that 
amendment to remedy discrimination by purely private actors. 5s Adarand 63 U.S.L.W. at 4538 n.10 
(Stevens, J., dissenting) ("Because Congress has acted with respect to the States in enacting STURAA, we 
need not revisit today the difficult question of ( 5’s applicability to pure regulation of private 
individuals."); Metro Broadcasting. 497 U.S. it 605 (O’Connor, J., dissenting) ("Section 5 empowers 
Congress to act respecting the Slates, and of course this case concerns only the administration of federal 
programs by federal officials."). Nevertheless, remedial legislation adopted under Section 5 of the 
Fourteenth Amendment does not necessarily have to act on the states directly. Indeed, when Congress

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In Fullilove. Justice Powell’s concurring opinion said that even under strict scrutiny, 
"[t]he degree of specificity required in the findings of discrimination ard the breadth of 
discretion in the choice of remedies may vary with the nature and authority of a 
governmental body." Fullilove. 448 U.S. at 515 n.14 (Powell, J., concurring). Ii was 
therefore of paramount importance to Justice Powell that the racial and ethnic classtfiaDcn 
in Fullilove was prescribed by Congress, which, Justice Powell admonished, ’properly may 
— and indeed must -  address directly the problems of discrimination in our society." I&. at 
499. Justice Powell emphasized that Congress has "the unique constitutional power" to take 
such action under the enforcement clauses of the Thirteenth and Fourteenth Amendments.
Id. at 500. i*L at 483 (plurality opinion) ("[I]n no organ of government, state or federal, 
does there repose a more comprehensive remedial power than in the Congress, expressly 
charged by the Constitution with the competence and authority to enforce equal protection 
guarantees."). Justice Powell observed that when Congress uses those powers, it can paint 
with a broad brush, and can devise national remedies for the national problem of racial and 
ethnic discrimination. I i. at 502-03 (Powell, J., concurring). Furthermore, Justice Powell 
said that through repeated investigation of that problem, Congress has developed familiarity 
with the nature and effects of discrimination: "After Congress has legislated repeatedly in an 
area of national concern, its Members gain experience that may reduce the need for fresh 
hearings or prolonged debate when Congress again considers action in that area." I i  at 503. 
Because Congress need not redocument the fact and history of discrimination each time it 
contemplates adopting a new remedial measure, the findings that supported the Fullilove 
legislation were not restricted to the actual findings that Congress made when it enacted that 
measure. Rather, the record included "the information and expertise that Congress acquires 
in the consideration and enactment of earlier legislation." I i  A court reviewing a race- 
based remedial act of Congress therefore "properly may examine the total contemporary 
record of congressional action dealing with the problems of racial discrimination against 
[minorities].” I i  Finally, Justice Powell gave similar deference to Congress when it came 
to applying the narrow tailoring test. He said that in deciding how best to combat 
discrimination in the country, the "Enforcement Clauses of the Thirteenth and Fourteenth 
Amendments give Congress a . . . measure of discretion to choose a suitable remedy." I i  
at 508.

seeks to remedy discrimination by private parties, it may be indirectly remedying discrimination of the 
states; for in some cases, private discrimination was tolerated or expressly sanctioned by the states.
Private discrimination, moreover, often can be remedied under the enforcement provisions of the 
Thirteenth Amendment. Section 1 of that amendment prohibits slavery and involuntary servitude. Section 
2 gives Congress the power to enforce that prohibition by passing remedial legislation designed to 
eliminate "the badges and incidents of slavery in the United States." Jones v. Alfred Maver Co.. 392 
U.S. 409, 439 (1968). The Supreme Court has held that such legislation may be directed at remedying 
the discrimination of private actors, as well as that of the states. I$jL at 438. See also Runvon v. 
McCrarv. 427 U.S. 160, 179 (1976). In Fullilove. the plurality opinion concluded that the Commerce 
Clause provided an additional source of power under which Congress could adopt race-based legislation 
intended to remedy the discriminatory conduct of private actors. Fullilove. 448 U.S. at 475 (plurality 
opinion).

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Justice O'Connor's opinion in Croson is very much in the same vein. She too 
commented that Congress possesses "unique remedial powers . . . under § 5 of the 
Fourteenth Amendment." Croson. 488 U.S. at 488 (plurality opinion) (citing Fullilove. 448 
U.S. at 483 (plurality opinion)). By contrast, stale and local governments have "no specific 
constitutional mandate to enforce the dictates af the Fourteenth Amendment," but rather are 
subject to its "explicit constraints ." Id. at 490 (plurality opinion). Therefore, in Justice 
O'Connor’s view, state and local governments "must identify discrimination, public or 
private, with some specificity before they may use race-conscious relief.” Id* at 504. 
Congress, on the other hand, can make, and "has made national findings that there has been 
societal discrimination in a host of fields.” Id* It may therefore "identify and redress the 
effects of society-wide discrimination" through the use of racial and ethnic classifications that 
would be impermissible if adopted by a state or local government. Id* at 490 (plurality 
opinion).44 Justice O’Connor cited her Croson opinion and reiterated these general points 
about the powers of Congress in her Metro Broadcasting dissent. S fi 497 U.S. at 605 
(O’Connor, J., dissenting) ("Congress has considerable latitude, presenting special concerns 
for judicial review, when it exercises its unique remedial powers . . . under § 5 of the 
Fourteenth Amendment.") (internal quotations omitted).

It would be imprudent, however, to read too much into Justice Powell's opinion in 
Fullilove and Justice O’Connor's opinion in Croson. They do not, for example, support the 
proposition that Congress may simply assert that because there has been general societal 
discrimination in this country, legislative classifications based on race or ethnicity are a 
necessary remedy. The more probable construction of those opinions is that Congress must 
have some particularized evidence about the existence and effects of discrimination in the 
sectors and industries for which it prescribes racial or ethnic classifications. For example. 
Congress established the Fullilove racial and ethnic classification to remedy what the Court 
saw as the well-documented effects of discrimination in one industry -- construction — that 
had hindered the ability of minorities to gain access to public contracting opportunities. See 
Fullilove. 448 U.S. at 505-06 (Powell, J., concurring); $££ also id. at 473 (plurality 
opinion).

Based on this reading of Croson and Fullilove. the endorsement in Ada rand of strict 
scrutiny of federal affirmative action programs does not mean that Congress must find 
discrimination in every jurisdiction or industry affected by such a measure (although it is 
unclear whether, as a matter of narrow tailoring, the scope of a classification should be 
narrowed to exclude regions and trades that have not been affected by the discrimination that 
is to be remedied.). State and local governments must identify discrimination with some 
precision within their jurisdictions; Congress' jurisdiction is the nation as a whole. But after 
Adarand. Congress is subject to the Croson "strong basis in evidence" standard. Under that 
standard, the general history of racial discrimination in the nation would not be a sufficient

** Justices Kennedy and Scalia declined to join that part of Justice O’Connor’s opinion in Croson that 
drew a distinction between the respective powers of Congress and state or local governments in the area of 
affirmative action.

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predicate for a remedial racial or ethnic classification. In addition, evidence of 
discrimination in one sector or industry is not always probative of discrimination in other 
sectors and industries. For example, a history o f lending discrimination against minorities 
arguably cannot serve as a catch-all justification for racial and ethnic classifications 
bcnrfjrrrng minority-owned firms through the entire economy; application of the narrow 
tailoring test would suggest that if  lending discrimination is the problem being addressed, 
then the government should tackle it directly."

Furthermore, under the new standard, Congress probably does not have to bold a 
bearing or draft a report each time it adopts a remedial racial or ethnic classification. But 
where such a classification rests on a previous law or series o f laws, those earlier measures 
must be supported by sufficient evidence o f the effects o f discrimination. And if the findings 
in the older laws are stale, Congress or the pertinent agency may have to demonstrate the 
continued relevance of those findings; this would satisfy the element of the narrow tailoring 
test that looks to the duration of classifications and whether they are subject to reevaluation. 
Where the record is sparse, Congress or the relevant agency may have to develop it. That 
endeavor may involve the commissioning o f disparity studies of the type that state and local 
governments around the country undertook after Croson to demonstrate that remedial racial 
and ethnic classifications in public contracting are warranted. Together, the myriad state and 
local studies may provide an important source o f evidence supporting the use by the federal 
government of national remedial measures in certain sectors of the economy.

Whatever deference a court might accord to federal remedial legislation after 
Adarand. it is undecided whether the same degree of deference would be accorded to 
nonremedial legislation. In Metro Broadcasting, the majority gave substantial deference to 
congressional judgments regarding the need for diversity in broadcasting and the linkage 
between the race of a broadcaster and programming output. Metro Broadcasting. 497 U.S. 
at 566, 572-73, 591 n.43. The dissenters did not do so, precisely because the classifications 
were nonremedial and hence, in their view, did not implicate Congress’ powers under the 
Enforcement Clauses of the Thirteenth and Fourteenth Amendments. LL at 605, 628-29 
(O’Connor, J., dissenting).

Finally, many existing federal affirmative action programs are not specifically 
mandated by Congress. Courts are unlikely to accord federal agencies acting without a 
congressional mandate the same degree of deference accorded judgments made by Congress 
itself. Agencies do not have the "institutional competence" and explicit "constitutional

45 Pin eras and practices of bank lending to minorities, may, however, reflect a significant "secondary 
effect" of discrimination in particular sectors and industries, 1̂ , because of that discrimination, minorities 
cannot accumulate the necessary capital and achieve the community standing necessary to qualify for 
loans

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authority" that Congress possesses. Adaand, 63 U.S.L.W . at 4538 (Stevens, J., 
dissenting).66 Although some existing agency programs were not expressly mandated in the 
first instance in legislation, they may nonetheless be viewed by a court as having been 
mandated by Congress through subsequent congressional action. For example, in Metro 
Broadcasting, the programs at issue were established by the FCC on its own; Congress’ role 
was limited to FCC oversight hearings and the passage of an appropriations riders that 
precluded the FCC from using any funds to reconsider or cancel its programs. 497 U.S. at 
572-79. The majority concluded that this record converted the FCC programs into measures 
that had been "specifically approved -  indeed, mandated by Congress." Id. at 563.

Under strict scrutiny, it is uncertain what level of congressional involvement is 
necessary before a court will review an agency’s program with deference. What may be 
required is evidence that Congress plainly has brought its own judgment to bear on the
matter. £ f  Adarand. 63 U.S.L.W . at 4537 (Stevens, J., dissenting) ("An additional reason 
for giving greater deference to the National Legislature than to a local law-making body is 
that federal affirmative-action programs represent the will o f our entire Nation’s elected 
representatives . . . . " )  (emphasis added); jjL at 4538 (Stevens, J., dissenting) 
("Congressional deliberations about a matter as important as affirmative action should be 
accorded far greater deference than those of a State or municipality.") (emphasis added).

IV. Conclusion

Adarand makes it necessary to evaluate federal programs that use race or ethnicity as 
a basis for decisionmaking to determine if they comport with the strict scrutiny standard. No 
affirmative action program should be suspended prior to such an evaluation. The information 
gathered by many agencies in connection with the President’s recent review of federal 
affirmative action programs should prove helpful in this regard. In addition, appended to 
this memo is a nonexhaustive checklist of questions that provides initial guidance as to what 
should be considered in that review process. Because the questions are just a guide, no 
single answer or combination of answers is necessarily dispositive as to the validity of any 
given program.

“ $££ Milwaukee County Pavers Ass’o v. Fiedler. 710 F. Supp. 1532, 1540 n.3 (W.D. Wise. 1989) 
(noting that for purposes of judicial review of affirmative action measures, there is a distinction between 
eongressionally mandated measures and those that are "independently established" by a federal agency), 
tffd, 922 F.2d 419 (7th Cir.), cert, denied. 500 U.S. 954 (1991); sL  Bakke. 438 U.S. at 309 (opinion of 
Powell, J.) (public universities, like many "isolated segments of our vast governmental structure are not 
competent to make [findings of national discrimination], at least in the absence of legislative mandates and legislatively determined criteria").

• 34 -



Appendix: Questions to Guide Review of Affirmative Action Programs

L Authority

Is the use of racial or ethnic criteria as a basis for decisionmaking mandated by 
legislation? If not mandated, is it expressly authorized by legislation? If there is no express 
authorization, has there been any indication of congressional approval o f an agency’s action 
in the form of appropriations riders or oversight hearings? These questions are important, 
because Congress may be entitled to some measure o f  deference when h decides that racial 
and ethnic classifications are necessary.

If there is no explicit legislative mandate, authorization, or approval, is the program 
premised on an agency rule or regulation that implements a statute that, on its face, is race- 
neutral? For example, some statutes require agencies to give preferences to "disadvantaged" 
individuals, but do not establish a presumption that members o f racial groups are 
disadvantaged. Such a statute is race-neutral. Other statutes, like those at issue in Adarand. 
require agencies to give preferences to "disadvantaged" individuals, but establish a rebuttable 
presumption that members of racial groups are disadvantaged. Such a statute is race­
conscious. because it authorizes agencies to use racial criteria in decisionmaking.

II. Purpose

What is the objective of the program? Is it intended to remedy discrimination, to 
foster racial diversity in a particular sector or industry, or to achieve some other purpose? Is 
it possible to discern the purpose from the face the relevant statute or legislation? If not. 
does the record underlying the relevant legislation or regulation shed any light on the purpose 
of the program?

A. Factual Predicate: Remedial Programs

If the program is intended to serve remedial objectives, what is the underlying factual 
predicate of discrimination? Is the program justified solely by reference to general societal 
discrimination, general assertions o f discrimination in a particular sector or industry, or a 
statistical underrepresentation of minorities in a sector or industry? Without more, these are 
impermissible bases for affirmative action. If the discrimination to be remedied is more 
particularized, then the program may satisfy Adarand. In assessing the nature of the factual 
predicate of discrimination, the following factors should be taken into account:

1. Source. Where can the evidence be found? Is it contained in findings set forth in 
a relevant statute or legislative history (committee reports and hearings)? Is evidence 
contained in findings that an agency has made on its own in connection with a rulemaking 
process or in the promulgation of guidelines? Do the findings expressly or implicitly rest on

- 35 -



findings made in connection with a previous, related program (or series o f programs)0

2. Type. What is the nature of the evidence? Is it statistical or documentary? Are 
the statistics based on minority underrepresentation in a particular sector or industry 
compared to the general minority population? Or are the statistics more sophisticated and 
focused? For example, do they attempt to identify the number of qualified minorities in the 
sector or industry or seek to explain what that number would look like "but for" the 
exclusionary effects of discrimination? Does the evidence seek to explain the secondary 
effects of discrimination -  for example, bow the inability of minorities to break into certain 
industries due to historic practices of exclusion has hindered their ability to acquire the 
requisite capital and financing? Similarly, where health and education programs are at issue, 
is there evidence on bow discrimination has hampered minority opportunity in those fields, 
or is the evidence simply based on generalized claims of societal discrimination? In addition 
to any statistical and documentary evidence, is there testimonial or anecdotal evidence of 
discrimination in the record underlying the program — for example, accounts of the 
experiences of minorities and nonminorities in a particular field or industry?

3. Scope. Are the findings purported to be national in character and dimension? Or 
do they reflect evidence of discrimination in certain regions or geographical areas?

4. "Authorship". If Congress or an agency relied on reports and testimony of others 
in making findings, who is the "author" of that information? The Census Bureau? The 
General Accounting Office? Business and trade associations? Academic experts? 
Economists? (There is no necessary hierarchy in assessing authorship, but the identity of the 
author may affect the credibility of the findings.)

5. Timing. Since the adoption of the program, have additional findings of 
discrimination been assembled by Congress or the agency that could serve to justify the need 
for the program when it was adopted? If not, can such evidence be readily assembled now? 
These questions go to whether "post-enactment" evidence can be marshaled to support the 
conclusion that remedial action was warranted when the program was first adopted.

B. Factual Predicate: Nonremedia! Pisgrams

Adarand does not directly address whether and to what extent nonremedial objectives 
for affirmative action may constitute a compelling governmental interest. At a minimum, to 
the extent that an agency administers a nonremedial program intended to promote diversity, 
the factual predicate must show that greater diversity would foster some larger societal goal 
beyond diversity for diversity’s sake. The level and precision of empirical evidence 
supporting that nexus may vary, depending on the nature and purpose of a nonremedial 
program. For a nonremedial program, the source, type, scope, authorship, and timing of 
underlying findings should be assessed, just as for remedial programs.

- 36  -



m . Narrow Tailoring

A. Race-Neutral Alternatives

Did Congress or the agency consider nce-nentral means to achieve the ends of the 
program at the time it was adopted? Race-neutral alternatives might include preferences 
based on wealth, income, education, family, geography. In the commercial setting, another 
such alternative is a preference for new, emerging businesses. Were any of these 
alternatives actually tried and exhausted? What was the nature and extent of the deliberation 
over any race-neutral alternatives -  for example, congressional debate? agency rulemaking? 
Was there a judgment that race-neutral alternatives would not be as efficacious as race­
conscious measures? Did Congress or the agency rely on previous consideration and 
rejection of race-neutral alternatives in connection with a prior, related race-conscious 
measure (or series of measures)?

B. Continued Need

How long has the program been in existence? Even if there was a compelling 
justification at the time of adoption, that may not be the case today. Thus, an agency must 
determine whether there is a continued need for the program. In that regard, does the 
program have an end date? Has the end date been moved back? Is the program subject to 
periodic oversight? What is the nature o f that oversight -  does Congress play a role through 
hearings/reports, or does the agency conduct the review or oversight on its own? Has the 
program ever been adjusted or modified in light o f a periodic review? What were the 
results of the most recent review and oversight conducted by either Congress or the agency? 
Is there evidence of what might result if the racial classification were discontinued? For 
example, is there evidence of the current level of minority participation in government 
contracting where racial criteria are not used (which may speak to whether discrimination can 
be remedied without a preference)?

C. Pool of Beneficiaries

Are the benefits of the program spread relatively equally among minority individuals 
or businesses? Is there information on whether the same individuals or businesses tend to 
reap most of the benefits, and if so, whether those beneficiaries have overcome 
discrimination? If the program is intended to remedy discrimination against minorities, does 
it include among its beneficiaries subgroups that may not have been discriminated against? Is 
there a procedure for tailoring the pool of beneficiaries to exclude such subgroups? Is there 
a mechanism for evaluating whether the program is needed for segments within a larger 
industry that have been the locus of discrimination?

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D. Manner in Which Race is Used

Does the program establish fixed numerical set-asides? Is race an explicit 
requirement of eligibility for the program? If there is no such facial requirement, does the 
program operate that way in practice? Or is race just one o f several factors -  a "plus" -  
used in decisionmaking? Could the objectives o f  a program that uses race as a requirement 
for eligibility be achieved through a more flexible use o f  race?

E. Burden
What is the nature o f the burden imposed on persons who are not included in the 

racial or ethnic classification that the program establishes? Does the program dig)lace those 
persons from existing positions/contiacts? Does it upset any settled expectations that they 
have? Even if that is not the case, the burden may be impermissible where the exclusionary 
impact is too great. What is the exclusionary impact in terms o f size and dimension? What 
is the dollar value of the contracts/grants/positions in question? Does the exclusionary 
impact of the program fall upon a particular group or class o f individuals or sectors, or is it 
more diffuse? What is the extent o f other opportunities outside the program? Are persons 
who are not eligible for the preference put at a significant competitive disadvantage as a 
result of the program?

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CERTIFICATE OF SERVICE
I hereby certify that on December 12, 1997, two copies of 

the foregoing Final Brief for the United States as Amicus Curiae 
were sent by first-class mail, postage prepaid, to the following 
counsel:

William E. Kennard 
Daniel M. Armstrong
C. Grey Pash, Jr.
David Silberman 
Allan Sacks
Office of the General Counsel 
Federal Communications Commission 
1919 M Street, N.W., Room 602 
Washington, D.C. 20554
David Honig
3636 16th Street, N.W.
Suite B-366
Washington, D.C. 20010
Michael P. McDonald
Center for Individual Rights
1233 20th Street, N.W.
Suite 300
Washington, D.C. 20036
Lawrence W. Secrest III 
Wiley Rein & Fielding 
1776 K Street, N.W.
Washington, D.C. 20006
Mark Troobnick
American Center for Law & Justice 
1000 Thomas Jefferson St., N.W. 
Washington, D.C. 20007
Leonard J. Pranschke 
Pranschke & Holderle, L.C.
1611 Des Peres Road, Suite 300 
St. Louis, Missouri 63131-1850
Gene C. Schaerr 
Nathan A. Forrester 
Sidley & Austin 
1722 Eye Street, N.W.
Washington, D.C. 20006



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

Lisa Wilson Edwards 
Attorney

CERTIFICATE OF COMPLIANCE
Pursuant to Circuit Rule 28(d), this brief contains no

more than 8,750 words.

Lisa Wilson Edwards 
Attorney