Federal court says FCC hiring guidelines are unconstitutional

Tuesday, April 21, 1998

The U.S. Court of Appeals for the District of Columbia last week unanimously ruled that the Federal Communications Commission failed to show a strong government need for its affirmative action program for broadcasters. The ruling cleared the Lutheran Church-Missouri Synod of charges of racism in hiring at its two Clayton, Mo., radio stations.

Both radio stations at the church's Concordia Seminary offer classical music and religious programs. Officials for the church say the stations “have been dedicated to the task of carrying out in their way the Great Commission which Christ gave to His Church, to preach the Gospel to every creature and to nurture and serve the people in a variety of ways.”

In 1990, a state chapter of the National Association for the Advancement of Colored People sued the church because radio station job applications asked the religion of applicants. The NAACP also claimed that the FCC's hiring guidelines—which require broadcasters to hire minorities at levels that reflect the racial composition of the local workforce—had been ignored by the church.

An FCC administrative law judge agreed with the NAACP and in 1997 fined the church $25,000. The judge also ordered the church to provide updates every six months on efforts to recruit minorities for the stations.

The church appealed the judgment claiming its First Amendment right to the free exercise of religion had been violated by the fine and order. Church officials argued that hiring criteria of “knowledge of Lutheran doctrine” and “classical music training” limited the local pool of available minorities. Secondly, church officials said that for many job openings, the stations did not engage in any outside recruiting, largely because many employees were drawn from the church's seminary.

The appeals court, however, ruled that the FCC hiring guidelines violate the Constitution's equal protection clause by compelling broadcasters to consider race in hiring decisions.

“We doubt, however, that the Constitution permits the government to take account of racially based differences, much less encourage them,” the court concluded.

Additionally, the court sent the case back to the FCC to determine whether the agency has authority to create a non-discrimination rule for religious broadcasters.

Mark N. Troobnick, special litigation counsel for the American Center for Law and Justice, a Washington, D.C.,-based religious liberty law firm that filed a brief in support of the Lutheran radio stations, said the decision correctly pointed out that the FCC cannot justify its hiring guidelines.

“Under the First Amendment, when government burdens religious practices, it has to show some basis for doing so,” Troobnick said. “The FCC had claimed that its hiring guidelines trumped religious liberty because of its interest in diversity. The federal court, however, told the FCC it must show a reason for the standards or else it will find those standards arbitrary and capricious.”

The FCC has not determined whether to appeal the decision.

“The unfortunate reality in our nation today is that race and gender sill matter,” said FCC Chairman Bill Kennard. “We all benefit when broadcasting, our nation's most influential medium, reflects the rich cultural diversity of our country.”