497 U.S. 547 (1990)
In 1971, minorities owned only 10 of the approximately 7,500 radio stations in the country and none of the more than 1,000 television stations.1 In 1978, minorities owned less than 1 percent of the Nation's radio and television stations.2 In 1986, they owned just 2.1 percent of the more than 11,000 radio and television stations in the United States.3
After a 1977 conference on minority ownership policies and a task force report documenting acute underrepresentation, the Commission adopted its May 1978 Statement of Policy on Minority Ownership of Broadcasting Facilities.4 The statement established two measures: a comparative hearing credit for minority ownership coupled with active management participation, and a distress sale policy allowing a licensee whose qualifications were under challenge to assign the station to a minority-controlled buyer at no more than 75 percent of fair market value before any revocation or renewal hearing began.5
In the Orlando, Florida, comparative proceeding for a new UHF television station, an Administrative Law Judge initially granted the license to Metro Broadcasting, Inc.6 The Review Board reversed after finding Rainbow Broadcasting qualified and awarding it a substantial minority ownership enhancement because it was 90 percent Hispanic owned.7 The Commission denied review in 1985.8
Following a remand at the Commission's request for consideration of its ongoing minority ownership inquiry, Congress enacted fiscal year 1988 appropriations legislation barring any expenditure to examine or alter the policies.9 The Commission closed the inquiry and reaffirmed the grant to Rainbow.10 The Court of Appeals for the District of Columbia Circuit affirmed.11
In the Hartford, Connecticut, matter, Faith Center, Inc., sought three successive distress sales of its television station, the third to Astroline Communications Company Limited Partnership, a minority-controlled entity.12 Shurberg Broadcasting of Hartford, Inc., which had filed a mutually exclusive application, opposed the sale on equal protection grounds.13 The Commission approved the assignment in 1984 and reaffirmed it in 1988 after the appropriations legislation, but a divided panel of the Court of Appeals for the District of Columbia Circuit invalidated the distress sale policy.14
Congress had repeatedly endorsed the policies through appropriations measures, including the 1987 legislation that prohibited the Commission from continuing its reexamination and subsequent extensions that maintained the preferences without alteration.15
Whether the Federal Communications Commission's policies awarding an enhancement for minority ownership in comparative proceedings for new broadcast licenses and permitting distress sales of stations to minority-controlled firms violate the equal protection component of the Fifth Amendment?16
Benign race-conscious measures mandated by Congress are constitutionally permissible to the extent that they serve important governmental objectives within the power of Congress and are substantially related to achievement of those objectives.
No. The policies serve the important governmental objective of broadcast diversity.1718 The Commission identified this objective after documenting severe underrepresentation of minorities among station owners from the early 1970s through 1986 and after a 1977 conference and task force report.19 The policies are substantially related to that objective because the Commission and Congress determined that expanded minority ownership increases programming diversity.20 This determination was applied directly in the Orlando comparative proceeding where Rainbow received the license over Metro on the basis of its 90 percent Hispanic ownership and in the Hartford distress sale where Astroline received the assignment over Shurberg's competing application.21
The Court of Appeals affirmed the Orlando grant and invalidated the Hartford sale, but the Supreme Court reviewed both under the standard for congressional measures. The appropriations legislation that barred alteration of the policies confirmed congressional endorsement.22 The record showed that race-neutral alternatives such as ascertainment rules and equal employment policies had failed to produce adequate diversity before the 1978 adoption of the preferences.23
The policies do not violate the equal protection component of the Fifth Amendment.
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Justice Stevens concurred on the ground that the policies focus on the future benefit of broadcast diversity rather than on remedying past discrimination.24 He emphasized that racial classifications remain permissible only in extremely rare situations but found this case within that narrow category because the interest in diverse programming is unquestionably legitimate.25 Neither the favored nor the disfavored class is stigmatized in any way.26
The policies do not rest on any judgment about the abilities of different racial groups or the merits of different kinds of programming.27 Instead, they advance an interest analogous to the diversity upheld in university admissions or police forces, and the Court correctly treats the classification as one that serves an important governmental objective without implying inferiority.28
Justice O'Connor dissented on the ground that strict scrutiny applies to all racial classifications, including those adopted by Congress.29 She concluded that the interest in broadcast diversity is too amorphous to be compelling.30 The policies rest on impermissible stereotypes equating race with viewpoint, and readily available race-neutral alternatives were never tried.31
The equal protection guarantee of the Fifth Amendment is coextensive with that of the Fourteenth Amendment, and no lower standard applies merely because Congress rather than a state enacted the classification.32 She rejected any distinction based on §5 powers because the policies were not remedial in nature.33 Strict scrutiny must govern all racial classifications regardless of which branch adopts them, and the majority's departure from this principle undermines the constitutional command of equality.34
Justice Kennedy dissented on the ground that the majority's intermediate scrutiny revives the deferential approach of Plessy v. Ferguson.35 He warned that the policies impose stigma on both included and excluded groups and that defining racial categories for preferences is repugnant to constitutional ideals.36 The majority's relaxed review abandons the constitutional command of racial equality.37
The approach revives the errors of Plessy by allowing Congress to discriminate among citizens on the basis of race for interests unrelated to remedying past discrimination, and the Court should adhere to strict scrutiny for all racial classifications.38
Whether a lower level of scrutiny applies to congressionally mandated race-conscious measures than to those adopted by state or local governments?
Although race-conscious classifications ordinarily require strict scrutiny, measures adopted by Congress to address racial and ethnic discrimination are subject to a different and less rigorous standard than such classifications prescribed by state and local governments.39
Yes. The Court applied intermediate scrutiny rather than strict scrutiny because the policies were specifically approved and mandated by Congress through repeated appropriations legislation that prohibited the Commission from altering or reexamining them. This congressional endorsement invoked the institutional competence of the National Legislature and the powers under the Commerce Clause, Spending Clause, and Civil War Amendments recognized in Fullilove.40 The Court found this deference reinforced by the distinction drawn in Croson between federal and state action.41
A lower level of scrutiny applies to congressionally mandated race-conscious measures than to those adopted by state or local governments.42
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Justice O'Connor dissented on the ground that the equal protection guarantee of the Fifth Amendment is coextensive with that of the Fourteenth Amendment. No lower standard applies merely because Congress rather than a state enacted the classification. She rejected any distinction based on §5 powers because the policies were not remedial.
Strict scrutiny must govern all racial classifications regardless of which branch adopts them, and the majority's departure from this principle undermines the constitutional command of equality.
Justice Kennedy dissented on the ground that the majority's relaxed review abandons the constitutional command of racial equality. The approach revives the errors of Plessy by allowing Congress to discriminate among citizens on the basis of race for interests unrelated to remedying past discrimination. The Court should apply strict scrutiny to every racial classification, and the majority's new intermediate standard permits the very sort of race-based reasoning the Constitution forbids.
Whether the governmental interest in broadcast diversity is sufficient to justify the FCC's minority ownership preferences?43
The interest in enhancing broadcast diversity is, at the very least, an important governmental objective and is therefore a sufficient basis for the Commission's minority ownership policies.44
Yes. The interest in broadcast diversity serves important First Amendment values by ensuring the widest possible dissemination of information from diverse and antagonistic sources.45 The Commission and Congress found this objective necessary after race-neutral efforts such as ascertainment policies and equal employment rules proved inadequate to address the documented underrepresentation of minority viewpoints.46 The policies are substantially related because empirical evidence and congressional findings established a nexus between minority ownership and increased diversity of programming content.
This nexus was applied in both the Orlando and Hartford licensing decisions.47
The governmental interest in broadcast diversity is sufficient to justify the FCC's minority ownership preferences.48
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Justice Stevens concurred on the ground that the interest in broadcast diversity is unquestionably legitimate and analogous to the interest in a diverse student body upheld in Bakke or a diverse police force.49 The policies do not rest on any judgment about the abilities of different racial groups.50 The classification advances an important governmental objective without implying inferiority, and the Court correctly recognizes that such measures may be employed when the reason for the classification is clearly identified and does not stigmatize either class.51
Justice O'Connor dissented on the ground that the interest in broadcast diversity is too amorphous and insubstantial to justify racial classifications.52 It lacks the specificity required to prevent the policies from amounting to outright racial balancing.53 The asserted interest cannot survive strict scrutiny because it rests on stereotypes equating race with viewpoint and because race-neutral alternatives were never adequately explored before adopting the preferences.54
Justice Kennedy dissented on the ground that an interest in increasing listening pleasure through presumed racial viewpoints is too trivial to support discrimination among citizens.55 The policies rest on the demeaning assumption that race dictates thought and behavior.56 The majority's approach permits the Government to allocate valuable licenses on the basis of race for reasons unrelated to remedying past discrimination, and such classifications should be forbidden under the Constitution.57