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Are diversity bylaws risky?

The main remaining issue that is holding up the ratification of Pacifica's new bylaws is the nature of diversity policy. Some support incorporating ambitous affirmative action policies that go beyond the legal limits of current law, that in reality that there is not great risk, and in any case, it is worth the potential cost. -ed.


Carol Spooner [iPNB bylaws committee chair]
Bylaws Financial Impacts
Sun Apr 20 15:44:46 2003

A real question for staff members and station managers at all five stations & the Archives and national programming is how much more money do they want to send to the national office ... to take on legal battles to defend numerical set-asides or percentages in our bylaws for representation on our local and national boards based on race/ethnicity/gender?

This is a policy issue that affects everyone at Pacifica -- not just the listeners who put up the money at fund drives, but the staff paid and unpaid, who need the support of that money to do their jobs. We need equipment, we need salaries, we need to pay our electric bills, we need training, we need outreach, we need Folios, we need raises, we need bonuses. Peacewatch is out of money, so I heard. The Archives aren't getting their central services money. Our news departments are hurting ... depending on the station, there are so many needs! Things we could be doing better if we had the money ... and doing better programming on affirmative action, racial justice, gender discrimination ... the war on the poor, the youth, the immigrants, the black & brown ...

The repeated complaint this year has been about all the money going to national. And, rightly so. But that money has been going to national to clean up and pay for the wanton reckless mess made by the last board -- defending new lawsuits & paying off the old ones.

Now, if we adopt bylaws that put numerical or percentage requirements on board representation based on race/ethnicity/gender -- then here are some of the potential legal consequences. And I'm willing to say, categorically, that NO lawyer anywhere who has researched these issues would dispute that these are potential consequences -- although there is certainly room for differing opinions about what the ultimate outcome in the courts might be and whether we should take on the fight.

1) Under the California Unruh Act, there is a "private right of action" so that ANY California taxpayer can sue to stop the State of California from making any grants to Pacifica (KPFA apprenticeship program, archives, etc.)because we discriminate on the basis of race/ethnicity/gender in the rights of our members to representation on our boards. "Discriminate" means treat differently and does not mean treat differently for a good or a bad reason.

2)Any member (listener-sponsor member or staff member) of the Pacifica Foundation under the new bylaws has standing to sue Pacifica for discrimination in the rights of the members (to representation on our boards) based on race/ethnicity/gender. The remedy they would be asking for would be that our bylaws be changed to grant equal rights of representation to all members without regard for race/ethnicity/gender -- and that local and national board members appointed/selected based on race/ethnicity/gender would have to be removed.

3) Under Title VI of the Federal Civil Rights Act "no recipient" of Federal funds may discriminate on the basis of race/ethnicity/gender. There is no "private right of action" under Title VI. However, the federal agency -- eg., CPB, FCC -- simply has to notify Pacifica that we are no longer eligible for federal funding unless we "correct" the problem, i.e, change our bylaws to eliminate the discrimination based on race/ethnicity/gender. If we don't want to change our bylaws, then we have to sue them to try to get it.

4) Depending on the ultimate language of the bylaws -- if we also mention racial/ethnic/gender "requirements" on our staff -- we could also face employment discrimination lawsuits.

Now, some people believe that we should take on some or all of these legal battles as a demonstration of our commitment to diversity. In order to win, we would have to go all the way to the US Supreme Court to get a ruling that the California Unruh Act or Title VI of the Federal Civil Rights Act is unconstitutional, or that the discrimination in our bylaws is necessary to achieve a "compelling state interest" in the racial/ethnic/gender balance on Pacifica's boards that must be remedied because of a historic practice of actual discrimination against racial/ethnic/gender minorities and that the remedy we put into our bylaws is "narrowly tailored" and is the least discriminatory remedy possible and that it is only for a limited time until the past racial/ethnic/gender discrimination on our boards has been corrected.

Those who say we must take on this fight in order to achieve diversity on our boards are dismissing out of hand the radical affirmative action that "proportional representation" voting is (see Lani Guinier's writings on the subject), they are dismissing the power of our air to recruit good candidates to run for our boards, they are dismissing the listeners and staffs themselves who are the ones who will be doing the voting -- and who are made up of the most radical political people in this country, people who oppose racism, oppression, injustice, war ... people engaged in the fight for freedom, justice, peace in so many ways.

However, win or lose, the cost of these legal battles would be enormous! And while we are fighting for years in the courts, our CPB money isn't coming in, we're not getting the federal grants for digital upgrades or tower repairs, etc. We're not hiring training directors, or diversity coordinators, or outreach coordinators ... or upgrading our equipment, or putting reporters in the field, or installing ISDN lines so we can broadcast town hall meetings ... you name it.

Should staff members and station managers care about this? I think so. But they don't get to vote and neither do the listeners ... but I think they should be informed and consulted in this momentous decision before the iPNB & LABs vote.

--Carol Spooner


Renteria's Response to Spooner
Sun Apr 20 17:51:18 2003

Subject: [WBAI-UC] To Carol: Re: Bylaws Financial Impacts Reply to:

The real question is whether or not there is any real basis for thinking that the Houston Plan ( in honor of Diallo) has flaws that could lead to a lawsuit. Having failed to bother to establish that - and, since you are not a civil rights attorney you aren't qualified to establish that - everything else you claim here is speculation and fear mongering. You are using an unestablished and unverified opinion - not even a written legal opinion by an expert in the field - to appeal to the narrow interests of staffs, in order to line them up against diversity by frightenting them about results that you have concocted as the implications of something you haven't established. You've passed the bar. But your logic doesn't pass the test.

Of course, you're entitled to your opinion, but you're not an expert in this field of law, and you shouldn't appeal to others as if you were. You discuss these matter without in any way demonstrating that the Houston Plan is not the least discriminatory remedy available to the discrimination admitted to by the iPNB in June of 2002.

The key word here is, of course, remedy - that which rectifies or fixes a problem. The Finck plan has no "remedies" at all. That's what you prefer. The question, however is whether the Houston Plan is a sufficient remedy and a non-discriminatory remedy. Since it _deprives_ no one of a seat, perhaps you could explain why you deem it discriminatory in the first place. Isn't that the measure? Wasn't that the measure in the Bakke case - that he was deprived of a seat in favor of someone else?

Or is it that you actually support the position of the so-called "unencumbrance petition" for _political_ reasons, which shade how you are interpreting the alw and which aspecs of the law you are willing to address, and which aspects you ignore? Rafael [Renteria - KPFK area]


Unity Caucus proposal is illegal and will bankrupt Pacifica
Sun Apr 20 11:19:57 2003

Are you really willing to risk the demise of PACIFICA and WBAI so a handful of people can handpick station board members? I am not.

True: The federal govt would love to put pacifica out of business. True: Under California law, under the Unruh Act, a business or place of public accommodation, which KPFA and Pacifica are, cannot discriminate on the basis of race.

True: The Unity Caucus proposal (attached below) discriminates on the basis of race , albiet in favor people of color.

True: California laws and federal supreme court cases have found various forms of discrimination illegal, under circumstances much, much, much,much more glaring than discrimination at Pacifica and KPFA. Remember Prop 209 resoundingly passed in California banning affirmative action? Anyone who has any legal knowledge and has read the affirmative action cases knows how hostile the Court is to these issues.

Do we really want to pass bylaws that will bring on huge lawsuits which will close down pacifica and bankrupt it?

I don't so. I think it would be a breach of fiduciary duty for any Lab member or iPNB member to support the Unity Caucus proposal outlined below, which the iPNB is currently considering.

I also think it is repugnant to chose someone so blatantly on the basis of national origin or race.

Peace, gail blasie, kpfa station board member and card carrying member of the California State Bar.

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