Pacifica Diversity Language Committee: lawyer's proposed language
Responses to Lubell's draft
Diversity bylaw committee documents
The following has been sent to the Pacifica Diversity Language Committee by Jonathon Lubell, the lawyer that Mimi Rosenberg (NYC) aquired for the committee's work.
I am sending the following:
1. Proposed Bylaws Language on Diversity. I have focused on the Minority Report. While the Majority Report had many sound provisions, its use of 50% goals and its failure to specify how the demographics are to be used (e.g., one factor, the basic goal, etc.) rendered some of its provisions inapplicable. I have also rephrased some of the Minority Report provisions to make the Plan less vulnerable.
2. Questions and answers. Needless to say, some of the answers could run on for several pages. Instead, I have set forth the core of my answer.
3. With reference to the proposed Affirmative Action Plan, I have the following additional comments:
a. In light of the disfavor by the Courts of Affirmative Action Plans where concrete numbers are required, the proposed Plan appears to be most likely to avoid legal challenge. The Plan itself which is aimed at achieving diversity for the pool of candidates would probably not be legally prohibited because the diversity composition refers to the demographic make-up rather than a chosen number or percentage. Further, at that stage no one will be occupying a position based on race, gender, ethnicity, etc. The closer issue concerns seating up to eight persons when diversity goals are not achieved in the election. This procedure should pass legal muster because the persons to be seated must be 1) the highest vote getters; and 2) members of the population category defined by the demographic analysis and deemed by the COI to be underrepresented. This is significantly different from a Plan which grants a seat to a nominee regardless of the number of votes she/he has obtained and regardless of the demographic analysis. Providing for an analysis of the composition of the stations' signal area has long established support. For example, in 1978 the F.C.C. found that broadcasters were obligated to determine the composition of their service areas. In the Matter of Ascertainment of Community Problems by Broadcast Applicants, 57 F.C.C. 2d 418 (1978).
b. I have provided for the same length of time for all members of the board - whether directly elected or as being seated as part of the diversity procedure of the election process. Different terms of office would exclude the diversity candidates from the same rights (length of term) as the elected candidates.
c. There remain some issues with the Plan:
1. Attached hereto, incorporated by reference and made a part of these bylaws is the "Affirmative Action Plan for Nominations and Elections to the Local Station Boards and Pacifica National Board."
2. If after the election is held, diversity goals are not achieved, the highest vote getters who are members of population groups in the demographics analyses for the relevant area deemed by the local Committee of Inclusion to be underrepresented on the newly elected Local Station Boards ("LSB") will be seated. The LSB can seat up to eight such persons.
The purpose of the Affirmative Action Plan is to help carry out the mission of Pacifica:
a. To encourage and provide outlets for the creative skills and energies of the community;
b. to promote and aid other creative activities which will serve the cultural welfare of the community; and
c. to engage in any activity that shall contribute to a lasting understanding between nations and between the individuals of all nations, races, creeds and colors. This purpose may be realized by achieving a composition of the LSBs' that accurately reflects the demographics of the station's area and audience while also achieving a meaningful diversity of the underrepresented and disenfranchised communities of the area.
To fulfill the goal of broad diversity beyond simply race and gender (e.g., sexual orientation and disability) -- the extra seats should go to those from any communities deemed by the Committee of Inclusion to be underrepresented based upon the demographic analysis. The LSB members added by the Committee of Inclusion shall serve the same term as LSB members not added by the COI.
3. The Pacifica National Board shall reflect the demographic make-up of the existing and potential audience in the signal areas of Pacifica's five local stations and shall include representation of underrepresented and disenfranchised groups.
In the event the PNB fails to achieve this diversity, each LSB will elect one additional PNB member, on recommendation of the COI as to needed additional representation to achieve meaningful diversity.
4. In order to increase the awareness of each local station community about the importance of diversity within Pacifica, each COI shall coordinate with station management and staff and the LSB Outreach Committee the offering of ongoing diversity training, which shall include anti-racism training, open to management, paid and unpaid staff, LSB members, PNB members, and listeners, with a particular outreach to LSB candidates.
5. Each local Committee of Inclusion will consist of fifteen members of the Foundation who have affirmed their support for the Foundation's mission, four of whom should be members of the LSB. The goal shall be that the membership of each local committee shall reflect the demographics of the relevant station signal area, the demographics of the station's existing audience, as well as representation from other underrepresented and disenfranchised groups in the signal area.
6. [ADD TO ARTICLE 3, SECTION 10] The record date for purposes of determining the Members entitled to receive notice of any meeting, entitled to vote by written ballot or entitled to exercise any other lawful membership action, shall be forty-five days before the date of the special meeting, forty-five days before the day on which the first written ballot is distributed, or made available, to the Members or forty-five days before the taking of any other action, as applicable. However, for the 2003 elections for Local Station Boards, the record date for the same purposes shall be thirty days before the day on which the first written ballot is distributed or made, available to the Members.
AFFIRMATIVE ACTION PLAN FOR NOMINATIONS AND ELECTIONS TO THE LOCAL STATION BOARDS AND PACIFICA NATIONAL BOARD
"Full minority participation in the ownership and management of broadcast facilities results in a more diverse selection of programming. In addition, an increase in ownership by minorities will inevitably enhance the diversity of control of a limited resource, the spectrum. And, of course, we have long been committed to the concept of diversity of control because diversification . . . is a public good in a free society, and is additionally desirable where a government licensing system limits access by the public to the use of radio and television facilities."
(Federal Communications Commission, Statement of Policy on Minority Ownership of Broadcasting Facilities, 68 FCC 2d 979, 981 ). The Pacifica Foundation is a media organization. Its function and purpose is such that diversity in all forms aids in the actualization of the radio network's mission and goals, which include engaging its audience with programming that promotes peace and social justice and the fight against oppression in all forms. Promoting and securing diversity in Pacifica's governance structures will help ensure diversity in its programming and thus in its audience and as such in the realization of the Foundation's mission.
One function of a media outlet is to work constantly to enlarge its audience The Pacifica Radio network must do this both to carry out its mission and because it depends on listener contributions for the majority of its funding, and so audience growth is essential for its financial health. In each of the network's five signal areas, the majority of the population consists of people of color, women, and members of other underrepresented and disenfranchised communities that are core parts of Pacifica's constituency and mission. The network needs to consistently reach out to such groups and provide programming that draws them in as listener-supporters.
In order to further that end, the governance of Pacifica, which formulates policies and practices to further our core functions, must embody both the principle of and the actuality of diversity in each signal area. The governance structure must therefore mirror the concerns of the demographic make-up of Pacifica's existing and potential audience. Those elected to the Foundation's governing board and its local station boards need to be as diverse as the population in the signal areas that they both serve and depend on for support.
Without such an outcome, the network will be hindered in its effort to both maintain and expand its listenership among people of color, women and other underrepresented and disenfranchised groups who in fact collectively make up the majority in each signal area. Giving voice to the problems and issues that confront such communities is crucial to the purposes of Pacifica. It is equally crucial to building the audience that is necessary for the network to grow and secure the financial resources necessary to perform its mission. Ensuring such diversity is thus an appropriate goal that mandates the Foundation to consider the race, nationality, gender, sexual orientation, and/or disability of candidates as an essential factor in Pacifica's election process. This affirmative approach treats all participants as individuals while also seeking to achieve a critical mass of candidates (and ultimately elected Delegates and Directors) from groups that have been and continue to be excluded and disenfranchised. Such a diverse body of candidates helps ensure that both the election itself and the Local Station Boards and Pacifica National Board that result from it embody a wide range of opinion and a robust exchange of ideas and participation in the network that are the hallmark of Pacifica's mission.
The specific methods to achieve this diversity within elections for the local Station Boards (LSBs) and the Pacifica National Board shall include, but not be limited to, the following:
1. Each local station Committee of Inclusion (COI) shall gather and analyze all available demographic data on the make-up of the signal area as defined by FCC signal area maps. Such data shall not be limited to that provided by the federal census, but should also include studies by reputable academic and community organizations that seek to correct for census undercounts or non-surveying of particular groups. Each COI shall also gather and analyze all available demographic data and studies on the make-up of the existing audience of the local station.
2. The final analysis of the COI for the relevant signal area shall give consideration of the data for both potential and existing audiences.
3. Based on this analysis, each COI shall have two sets of goals:
a. Percentage goals for inclusion in the pool of nominees for the LSB. These shall cover groups that are disenfranchised and/or underrepresented based on their race, nationality, language, gender, sexual orientation and disability. Goals shall be set not only for broad categories of disenfranchised or underrepresented people (e.g., people of color), but also for subgroups identified by the COI as important for helping the Foundation fulfill its mission. The goals shall include at least one nominee for each designated group or subgroup even if demographically that group or subgroup falls below the percentage threshold represented by one seat (e.g., even if, say, indigenous people constitute less than 1/24th of the signal area population).
b. Goals for the major language groups of underrepresented and disenfranchised groups in the signal areas into which translations of election materials and broadcasts shall be provided.
3. Each COI shall coordinate with, and monitor efforts by, the station's management, paid and unpaid staff, station Outreach Coordinator (where provided for), LSB Outreach Committee, and LSB Election Committee to develop an election outreach plan which includes the following:
a. Prioritization of outreach and distribution of both general station and election literature to neighborhoods, communities and organizations of identified underrepresented and disenfranchised groups, and designating the majority of any funds available for outreach to be targeted to those population groups.
b. Broadcasting, as early as feasible before or during the nomination period, special segments and programs prepared by and for populations designated by the COI concerning issues of concern to those populations, broadcast in languages that meet the language goals of the COI.
c. Distribution of nomination/election literature and the production of broadcast carts encouraging election participation and seeking outreach volunteers from targeted population groups, all prepared according to the language goals of the COI.
4. Each COI shall create, maintain and publicly post a chart at the local station and on the station's Website showing: a) the population groups to which targeted outreach has been done; and b) the number of LSB nominees to date from each such group and how far short, if any, that number is from the goal for the pool of nominees.
5. On the thirtieth day of the nomination period, each COI shall issue a written and oral report to the LSB and the public (available at the station and on the station's Website) detailing its work to date, the then-current nominee totals broken down according to the demographic categories, and any recommendations for action to correct any deficiencies in outreach and candidate recruitment activities.
6. The Committee of Inclusion of the Pacifica National Board shall compile the goals set by each local COI and shall use that compilation to determine national goals for inclusion of underrepresented and disenfranchised groups on the Pacifica National Board, based on both the combined population data and the Foundation's mission.
Questions and Answers
1. If we are to be sued, what is the worst that could happen? What case law has language we could use?
A: The Court could find that the Plan violates certain groups' rights. The Court would order the Plan not to be implemented. Unless there was evidence that someone had incurred compensatory damages by reason of the implementation of the Plan, Pacifica would not be liable for money damages. Whether Pacifica would be liable for attorney's fees and the amount of those fees, cannot be answered without knowing the nature of the legal challenge. With reference to case law language that could be used to support the Affirmative Action Plan, the cases and legal discussions concerning diversity in the media are most helpful because diversity, which has a recognized connection with diversity in the composition of the media entity, has been a protected goal for the media industry.
2. Does using a specified number (re: demographic categories) make an institution more vulnerable to legal attack?
A: Using no numbers at all would make an institution least vulnerable to legal attack but it would most likely result in no change in the composition of the institution. The issue is how a specified number is used. If the numbers are based on the demographics of the areas rather than directly on race, gender, ethnicity, etc., it is significantly less vulnerable to legal attack. The excluded individual is left out not because there is a plan to favor one racial, ethnic, gender group over another, but because the composition of the relevant area leads to the result. 3. Can we use numbers as we have outlined in our majority report or proposed bylaws?
A: The use of numbers or percentages as goals for the composition of people in all Pacifica programming, committee membership and candidate outreach, as proposed in the Majority Report, would raise a legal challenge in the current legal atmosphere. Use of numbers or percentages as goals for the pool of nominees is somewhat less vulnerable to a legal challenge because being in the pool as a nominee does not mean that a position has been guaranteed or set aside for the nominee.
4. If we fail to meet the goals are we vulnerable to a credible lawsuit by those who have been left out?
A: Probably not because the goals do not guarantee or promise a position to anyone.
5. What, if any, problems would there be if, in adding people to board seats to comply with a diversity remedy, the candidate to be seated received very few votes?
A: The Affirmative Action Plan provides that the people added to the Board would be the highest vote getter.
6. Is using demographics superior to pre-selected numbers or percentages?
A: Yes - superior in avoiding a legal challenge. See answer to Question 2.
7. Is it permissible to use plus points as used in Michigan, e.g., as a method of affirmative action?
A: While I believe that there are sound arguments to permit use of plus points, I think we should await the decision of the U.S. Supreme Court in the Michigan case.
8. And, is it acceptable to specify the inclusion of specific categories (historically under represented groups) instead of referencing generally minorities or in addition to demographic categories?
A: Specifying the inclusion of specific categories who have been historically underrepresented may be acceptable if the underrepresented are specifically referenced to the radio industry. There is substantial documentation to establish this specific history of exclusion. See e.g.: Historical Study of Market Entry Barriers, Discrimination and Changes in Broadcast and Wireless Licensing, prepared for the Office of General Counsel Federal Communications Commission, Dec. 2000.
9. And, in terms of a remedy, is it okay to specify which groups would be entitled to added seats?
A: Probably not, see answer 2.
10. Can we use demographics consistent with the mission of Pacifica?
A: Yes, since demographics refer to the composition of the community of the specific area - and the Mission of Pacifica concerns the community.
11. And, what is the difference between putting numbers in policy statements, and putting numbers in the bylaws?
A: The jurisdiction of the Court over Bylaws is probably greater than its jurisdiction over policy statements. Substantively, if both Bylaws and policy statements are used as the bases for implementation there probably is no significant difference.
12. In light of the materials and proposals you've seen, what other remedial mechanisms might you propose, if any, other than those already proposed?
A: Those which have been proposed during the bylaws' process as well as those considered by the Courts in prior cases present the possible remedies. The issue is whether Pacifica recognizes the necessity of an Affirmative Action Plan. The combining of the two Reports present the most feasible and effective remedy.
13. May we be exposed to lawsuits from members who might sue for discrimination in board elections, and in our hiring/firing practices, due to language in our bylaws speaking to diversity throughout the network?
A: I do not believe the bylaws refer to Pacifica's hiring/firing practices. As far as lawsuits concerning board elections, it is difficult to predict such a lawsuit where there is no individual damage.
14. And, are we leaving ourselves vulnerable to administrative challenges to our state and federal funding, including grants.
A: Challenges can always be made; the question is whether we are opening ourselves up to a non-frivolous challenge. I know of none and I believe that if such an issue is raised we would be given time to meet and resolve the issue.
15. Is it legal to give affirmative candidates unequal status if elected, e.g., shorter terms?
A: Shorter terms based on being or a diversity candidate is contrary to the Affirmative Action Plan which seeks to bring equality for those groups underrepresented.
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