Wrongheaded on Race Wrongheaded on Race
Monday, July 2, 2001; Page A16
THE D.C. CIRCUIT Court of Appeals recently declined to review a little-noticed affirmative action decision that was handed down by a three-judge panel earlier this year. That opinion, which struck down the Federal Communications Commission's equal opportunity rules for the broadcasters it licenses, attacked what ought to be the most inoffensive corner of affirmative action. The FCC's program didn't require broadcasters to set quotas or hiring goals or to give any kind of preferences in hiring.
It required only that they try to get minorities and women into their applicant pools. This is precisely the type of outreach that many conservatives say they support in place of racial preferences. But even such minimal requirements, the D.C. Circuit now says, can violate the Constitution. If the court's opinion stands, it's hard to see how any affirmative action program would survive. The FCC gave broadcasters a choice: They could adopt outreach efforts specified by the FCC or they could devise their own outreach programs. If they chose the latter option, they were required to report the race and sex of job applicants to the commission -- data that could then be used in license reviews.
Because the broadcasters had the option of employing the FCC's race-neutral outreach model and were -- if they chose this path -- not required to report figures by race or target minorities specifically in their outreach efforts, the commission's program was actually race-conscious only to the degree that broadcasters wanted it to be. It should have been upheld on that basis alone. The D.C. Circuit brushed over this inconvenience in January, however, and concluded that the optional reporting scheme "compelled broadcasters to redirect their necessarily finite recruiting resources so as to generate a larger percentage of applications from minority candidates."
Judge Douglas Ginsburg wrote that the program ensured that "non-minorities are less likely to receive notification of job openings solely because of their race." In dissent, Judge David Tatel shredded the earlier opinion, arguing that "the panel departed from basic principles of judicial restraint." He's right -- and the result of this departure is a ruling that casts constitutional doubt over any government policy requiring race-conscious outreach even if the policy doesn't change hiring standards. The Supreme Court's scaling back of preferences during the past several years makes the type of minority outreach in the FCC's program increasingly important. The courts must not declare war on it, too.
© 2001 The Washington Post Company
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