Responses to Lubell diversity language draft
Diversity bylaw committee documents
From: A. Gregory Wonderwheel [KPFA area]
Terry Goodman's comprehensive review [directly below on page] of the Lubell memo is excellent and correct.
Given the plethora of pervasive defects, one is challenged to even find a correct metaphor: Swiss cheese, colander, gossamer, cobweb, etc? The fundamental problem is that the Lubell memo is so faulty in virtually every paragraph that it is mind boggling to deal with as a whole.
In other words, the Lubell memo is so bad that to point out most every defect, as Goodman has, almost creates the appearance of incredulity. I say almost, because the fact is the Lubell memo is that bad and the long laundry list of defects are valid. I am incredulous that any self-respecting professional attorney would offer such a memo. It is only explained by the inference that he took what was given him by his friends and regurgitated by putting his stamp of approval.
The practical effect of that many defects is that it becomes difficult to focus one's attention on any single issue. Given the over 25 considerable and material defects it is difficult to address them all in any single discussion. In other words, so many problems have been thrown into the air that only a few can be dealt with in discussion, thus allowing many others to pass by and become part of the final design. Thus the only really appropriate response is to reject the whole idea.
To focus on certain areas of concern for reasons of especially important defects I offer the following.
1.) This process of this proposal is an end run around the committee majority. It should have been for the committee to rewrite it's proposal based on feedback, not for the attorney to give his proposal as a preordained and pre-approved preference Also as Goodman points out the complete lack of integration with the existing bylaws language is a fatal defect. Who came up with the number "8" for the number of add-on appointed seats at each election? I don't recall this being a committee decision.
2) The incorporation into the bylaws of the Affirmative Action plan by sleight of hand is so dangerous it is incredible that an attorney would propose it. The long statements of political belief and support for affirmative action do not belong in bylaws, they are at best policy statements. However, the most important defects is that they institutionalize several key concepts that are highly controversial in the Pacifica community without any adequate debate or focus.
Chief among these poison pills is the role of audience numbers and the necessary Arbitron measurements to determine them. Does anyone not strenuously oppose this proposed enshrinement in the Pacifica Bylaws of Lubell's language that "One function of a media outlet is to work constantly to enlarge its audience." Does anyone really accept the concept that Pacifica stations are "media outlets?" This is no mere slip of the tongue or mis-spoken metaphor. The view that radio stations are media outlets is integral to the world view emphasizing that audience expansion is an intrinsic goal of radio broadcasting. On the contrary, Pacifica has never had an intrinsic goal of audience expansion. The first conceptualization of necessary audience support was based on the 2% target of self sustaining survival. v Contrary to incorporating the Pacifica mission as he claims, in this single paragraph, Lubell has fundamentally altered the role of Pacifica in the realm of radio broadcasting. In this one paragraph he incorporates and enshrines in the bylaws the core perversion of the Strategic Five Year Plan. Quite a feat!
3) The use of the undefined terms "underrepresented" and "disenfranchised" each presents fatal problems in the bylaws and the affirmative action plan.
As Goodman points out, the term disenfranchised begs the question, disenfranchised from what? Enfranchisement usually means voting. The franchise means a person can vote. Disenfranchisement means that a person who has a right to vote is prevented from voting by some mechanism. For example, in public elections all citizens have the right to vote and a citizens is disenfranchised when he or she is prevented form voting as was the case in the 2002 presidential elections in Florida.
This whole concept of disenfranchisement is woefully and dangerously applied to the membership of a nonprofit corporation. No one has the right to vote for the board of directors of a nonprofit corporation unless the bylaws gives them the right. We are contemplating expanding the voting rights from the LABs to the members directly. This would mean that only the members of the corporation would have voting rights. This is how membership corporations are run. By putting the term "disenfranchised" into the bylaws the mistaken concept of citizen voting rights is put into the bylaws as a poison pill. The ambiguous proposition would be created that people would be given corporate rights merely because they have been identified by the COI as being from a disenfranchised group.
There is no practical definition in the year 2003 of disenfranchised communities. Certainly, except for aberrations like Florida, anyone can register and vote. Disenfranchisement has no place in Pacifica Bylaws because we do not expect that any person with a right to vote will be prevented from doing so for any reason, especially because they belong to one community or another.
That the word "disenfranchised" leads to confusion is evident in Goodman's statement that use of the term "still assumes that disenfranchisement of specific groups has occurred when, in fact, the entire listenership has been disenfranchised in most Pacifica signal areas, so no specific group can be identified as having been disenfranchised." This is the one nit where I disagree with Goodman. He uses the term "disenfranchised" in the broadest sense possible meaning that listeners have been disregarded by those in power. That is not the meaning of disenfranchisement which means deprived of a right, especially the right to vote. The use o f the term in the larger context of living in the USA is confused with the use of the term within the context of Pacifica as a nonprofit corporation.
The concept "underrepresented" while not being as inherently offensive is just as dangerous. It begs the question "underrepresented" where? In the US Senate or on the Pacifica Board? When the COI is given the carte blanche power to determine which demographic characteristics are to be considered in under representation then any and every characteristic is available. What demographics are to be used. The only universal demographics available are the US Census demographics. These include demographics of race, gender, income, etc. Do they include sexuality? Do they include "disability"?
As Goodman points out, what does representation really mean? Percentage congruency or mere inclusion? Does every category have to be congruent with the demographic census data? For example, do we need 7.53% Blacks or African Americans on the Board in KPFA because that is the demographic data of the signal area? No more, no less? Or is it enough that one person from that category is on the board because the demographics indicates that "those people" live in the area. This is the silliness to which demographic references will lead us.
Then the very fundamental question remains, why should someone be put on the Boards merely because they meet a demographic criteria when the voting members have rejected that person? Why should any demographic characteristic relating to a group category that the person may be put into become the trump card that allows the individual to be seated after being rejected in the voting? This turns the cry for "diversity" into a travesty.
4) Lubell uses the term "critical mass". This it the concept in the exact language that is now being considered in the University of Michigan cases. It would be irresponsible to insert this language into our bylaws before we find out whether the US Supreme Court is going to approve or reject this language and the concept it represents.
5) Equal protection works both ways and Lubell totally ignores this basic concept in the law. Glib references to women, people of color and other underrepresented communities being the majority only emphasize the error.
6) Lubell inserts the following ideology: "The governance structure must therefore mirror the concerns of the demographic make-up of Pacifica's existing and potential audience."
The inclusion of this sentence shows either a fundamentally flawed analysis of tremendous proportions or a deliberate attempt by using vague terms to embed into the bylaws a political agenda (based on the ideological exploitation of diversity) that is no where to be found in the Pacifica purposes. Who says "must?" The notion that there is such a thing as "concerns of the demographic make-up" is vague in conception and false in its essence. There is no such thing as a demographic concern. People have concerns, demographics don't. How is a "governance structure" going to mirror a fictitious "concern?"
Since all the members of the Republican Party are members of the "potential audience" are their demographic concerns to be mirrored in the governance structure? No. Even if such a thing as a demographic concern could be identified it would be inappropriate to "mirror" it in the governance structure. The governance structure should mirror the ideals of democracy. Within that structure and the Pacifica purposes, the existing members can express their concerns regardless of their demographic characteristics.
The governance of Pacifica should not to be given over to the vague concept of "Pacifica's existing and potential audience." The "audience" per se has no inherent right to governance. Only those members of the audience who join the organization as members should have any say in the governance. Membership, if it is to have any meaning, must be something that someone puts an effort into and which contributes to the organization.
7) Equally as wrong, is the notion that vague references to demographics is somehow a protection against having numbers. This notion has no basis. Once the COIs create their demographic analysis, the numbers will be present. Then the COIs will be reviewing election results against those numbers and those numbers will look amazingly like quotas. This is exactly the situation that the University of Michigan put itself into. They tried to hide that they were relying on numbers by the concept "critical mass" but were questioned intently on what number were they referring to when they knew they had a critical mass? 5%? 10%? 12%?
This is why I say we can do all the measuring in the world without problems, but to translate the measurements into required numbers will get us into trouble. It does no good to pretend that we aren't using numbers when we say "demographics" because demographics are numbers.
Let's stop pretending that this is about anything other than getting appointed seats put into the governance structure so that under cover of "diversity" certain people will be appointed to the Boards who are not elected by the members.
From: Rafael Renteria [KPFK area]
While in some areas Terry Goodman correctly notes some inconsistencies in the Lubell plan, over all what is missed is the simple fact that the Lubell plan does not discriminate or create any kind of preference in seating LSB members. All groups are treated on the same basis by the same standard in this plan.
For that reason, Terry's many references to the Croson case and others have no bearing, since "strict scrutiny" applies to plans that preference one group or another for some end.
The genius, if I may use such a term, of the Lubell draft is that it creates diverse representation without in any way preferencing any group or excluding any group or in any way "revese" discrimination.
In my opinion, in order to overrule such a plan, a court would have to throw out the very principle of including people by an Equal standard, and do so overtly and in the name of some form of supremacy or another.
Much more below, for those who care for honest exploration of the issues and honest debate...
[Extremely long message of point by point response to below Goodman post truncated.
This page primarily focuses on responses to the Lubell draft.
The full Renteria post may be viewed at:
From: Carol Spooner [KPFA area]
The genius of the proposal is that it defeats democratic accountability to the membership (staff and listeners) and establishes a 15-person committee to appoint 40% (16 out of 40) of the LSB members.
The genius of the proposal is that it attempts to hide this in turgid prose and polemic about underrepresented and disenfranchised groups -- while actually disenfranchising those people by substituting the judgment of the 15-person committee for the members of those groups who are perfectly capable of choosing their own representatives.
The genius of the proposal is that it defeats the need to actually address programming to the needs of disenfranchised and underrepresented people -- and thus bring them into the voting membership of the station -- and keeps the established and entrenched station elite safely undisturbed in their "ownership" of their air time for life.
The genius of the proposal is that it reveals the hand of the authors in such bold relief that we don't even have to argue its legality in order to reject it as laughably preposterous.
Date: Wed, 07 May 2003 16:07:45 -0700
[The sections of this post with brackets are language from lawyer Lubell's proposed bylaw language]
Lubell's rejection of the Majority Report's 50% diversity goals has
sound legal foundation, as argued with cites by critics of the Report.
His decision to accept the Minority Report's different recommendations
regarding the number of added seats and the composition of the
Committees of Inclusion, however, has no such legal foundation. The
Bylaws Diversity Commitee majority, if it accepts Lubell's legal
analysis, should change the offered language to match the decisions of
the majority on these peviously decided issues, unless the intent of
the majority has changed.
Providing full terms for diversity candidates fails to narrowly tailor
the remedy. The unavailability of these seats at the next election
discriminates against other candidates of the same groups previously
identified as underrepresented and seated, and so deprives the
Foundation of the opportunity to correct underrepresentation through
its normal process at the next election.
The intent of the Bylaws Diversity Committee majority seemed clearly to be to ignore the demographics of the existing audience. Lubell should have been advised of this fact, and invited to comment on the concept. In any case, the relative weights to give to these different demographics is an issue that is not adequately addressed in the Plan.
Incorporation by reference to an attachment is appropriate for an
exhibit in a legal complaint or answer, but is not appropriate for
fundamental bylaws language. This approach fails to resolve a number
of issues identified by Carol Spooner's exercise in the implementation
of the previous Majority Report recommendations. The Bylaws Diversity
Committee must provide specific language ammending the sections of the
bylaws impacted by this Affirmative Action Plan to prevent internal
inconsistencies and contradictory or vague requirements. The specific
composition of Committees of Inclusion, as a single example, are
markedly different in the bylaws draft and in the Affirmative Action
Plan being proposed as a separate ammendment .
Seats added using this method may, while improving the representation of one underrepresented group, degrade the representation of another underrepresented group. This method will tend to seat the maximum allowed number of additional candidates rather than the minimum required to achieve the targeted diversity goals, and thus fails to narrowly tailor the remedy per the standard in Richmond v. J. R. Croson (1989).
There is also a potential problem if the Committees of Inclusion become overzealous in identifying underrepresented groups. The Supreme Court's language in Bakke v. Regents, Univ. of California (1978), though specificly addressing set asides, is worth review in this context:
"The diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element. Petitioner's special admissions program, focused solely on ethnic diversity, would hinder rather than further attainment of genuine diversity.
"Nor would the state interest in genuine diversity be served by expanding petitioner's two-track system into a multitrack program with a prescribed number of seats set aside for each identifiable category of applicants. Indeed, it is inconceivable that a university would thus pursue the logic of petitioner's two-track program to the illogical end of insulating each category of applicants with certain desired qualifications from competition with all other applicants."
This language gives inadequate guidance to the Committees of Inclusion in situations where the demographics of the station's area and the demographics of the station's current audience are different. There is no need for mention of the station's current audience if the identification of underrepresented groups is to be based only upon the signal area demographics. If the purpose of this language is to encourage the COI's to consider the demographics of the current audience in setting diversity goals, the relative weight to give to this information should be specified.
This language also creates a problem in its introduction of the term
"disenfranchised communities." If this term is meant to refer to
those communities in the signal area which have been denied the right
to vote in Pacifica elections, it refers to almost everyone, since the
votes in Pacifica elections in most signal areas have been cast only
by LAB members. Since this definition is essentially meaningless at
the time the language is offered for adoption, the term might be
interpreted instead to refer to those communities in the signal area
who have been denied the right to vote in government elections -- for
example: juveniles, felons, prisoners, and non-citizen immigrants.
This language is consistent both with the earlier misinterpretation
and with the probable intent of the Bylaws Diversity Committe. This
is especially troublesome because the concept of providing
representation to juveniles, felons, prisoners, and non-citizen
immigrants is not prima facia inconsistent with the Pacifica Mission.
The term "disenfranchised communities," unless offered with a
meaningful definition, should not appear in the bylaws.
This solution fails to narrowly tailor the remedy, as pointed out previously. Here is an excerpt from Richmond v. J. R. Croson (1989) :
"... As noted by the court below, it is almost impossible to assess whether the Richmond Plan is narrowly tailored to remedy prior discrimination since it is not linked to identified discrimination in any way. We limit ourselves to two observations in this regard.
"First, there does not appear to have been any consideration of the use of race-neutral means to increase minority business participation in city contracting. Second, the 30% quota cannot be said to be narrowly tailored to any goal, except perhaps outright racial balancing. It rests upon the "completely unrealistic" assumption that minorities will choose a particular trade in lockstep proportion to their representation in the local population.
"Since the city must already consider bids and waivers on a
case-by-case basis, it is difficult to see the need for a rigid
numerical quota. Given the existence of an individualized procedure,
the city's only interest in maintaining a quota system rather than
investigating the need for remedial action in particular cases would
seem to be simple administrative convenience. But the interest in
avoiding the bureaucratic effort necessary to tailor remedial relief
to those who truly have suffered the effects of prior discrimination
cannot justify a rigid line drawn on the basis of a suspect
classification. Under Richmond's scheme, a successful black,
Hispanic, or Oriental entrepreneur from anywhere in the country enjoys
an absolute preference over other citizens based solely on their race.
We think it obvious that such a program is not narrowly tailored to
remedy the effects of prior discrimination...."
Again, this language is vague as to what weight to give to existing audience demographics and as to the criteria for identifying "disenfranchised groups."
Establishing such specific requirements for the constitution of
Committees of Inclusion renders them without authority if, at any
time, the requirements set forth are not met. Upon the resignation of
any individual member, the COI would fall below its required
consistency and would be in violation of the bylaws if it attempted to
continue its work. The language also fails to specify how members of
these Committees are to be chosen and how vacancies are to be
Again, this language is vague as to what weight to give to existing audience demographics and as to the criteria for identifying "disenfranchised groups."
Including this language by reference in the Pacifica bylaws provides
justification and authority to those who might want to reduce
Mission-directed programming in the search for a broader audience, or
to force Pacifica to expand to additional listening areas prematurely.
In each of the network's five signal areas, the majority of the population also consists of whites, men, and members of overrepresented communities. By specifying categories for preference independent of demographic data, this language discriminates against the categories not specified, denies those groups equal protection, and fails the test of "strict scrutiny" required in matters of racial classification in Richmond v. J. R. Croson (1989) and affirmed in Adarand Constructors v Pena (1995). The identification of categories deserving preference should be left to the local Committees of Inclusion, must allow equal protection for whites and men, and must allow equal remedy if demographic analysis shows an underrepresentation in either of these categories.
The vague term "disenfranchised communities" is again used.
Again, this language is vague as to what weight to give to existing audience demographics.
It might also be pointed out that raw demographic data is subject to
challenge as a basis for setting goals for LSB's, especially if that
portion of the demographic unlikely to be available as candidates due
to age is not excluded. Children under a certain age are unlikely to
be listeners and even less likely to be potential LSB candidates.
This language is vague as to what weight to give to the demographics
of the supporting population as distinct from the served population.
This language discriminates against the categories not specified,
denies those groups equal protection, and fails the test of strict
scrutiny. Moreover, this sort of polemic is inappropriate to the
function of bylaws and places specific interpretations on the Mission
Statement. The Mission Statement speaks for itself. If it is to be
re-interpreted, such revision should be by ammendment to the Articles
of Incorporation, not by expansion of the Mission through the addition
of gratuitous language in the bylaws.
If "groups that have been and continue to be excluded and disenfranchised" is interpreted to mean groups excluded and disenfranchised from Pacifica, this could be construed as an admission of wrongdoing and evidence of prior discrimination by Pacifica. An admission of wrongdoing, especially in the absence of clear evidence of such wrongdoing, is clearly against the best interests of the Foundation, and increases the Foundation's potential liability.
That such language survived the review of an attorney is frightening.
This language also introduces the vague term "critical mass," which is vague and subject to misinterpretation, if it has any meaning at all in this context.
Again, this language is vague as to what weight to give to existing
The use of the term "disenfranchised" here places it in a context that helps avoid the misinterpretation mentioned earlier, but it still assumes that disenfranchisement of specific groups has occured when, in fact, the entire listenership has been disenfranchised in most Pacifica signal areas, so no specific group can be identified as having been disenfranchised.
It is disappointing that Lubell did not take this opportunity to
provide cites in support of his analysis.
Lubell fails to take this opportunity to address requirements of strict scrutiny or the concept of narrow tailoring of remedies.
The answer provided here is not responsive to the question, but the question was not really a legal question. If added seats are intended to improve representation, there should be some minimal demonstration of member support before a candidate is eligible for an added seat. The Affirmative Action Plan fails to establish this minimum.
Lubell here appears to suggest that specific categories historically underrepresented in the awarding of broadcast licenses may qualify for preferences in an added seats model, but the affirmative Action Plan under discussion fails to identify catgeories on that basis or to authorize the Committees of Inclusion to consider this information in the setting of goals.
Lubell also fails to take this opportunity to address requirements of strict scrutiny or narrow tailoring of remedies.
With specific reference to affirmative action in broadcasting, the decision in Lutheran Church - Missouri Synod v. FCC. (1998), which found FCC affirmative action regulations unconstitutional is certainly more relevant here, as a matter of law, than is the document Lubell cites, as a matter of history:
" ... In his Adarand dissent, Justice Stevens described the program in that case as containing no quota or rigid prefer- ence. Adarand, 515 U.S. at 262-63. There, the agency encouraged minority hiring by offering a bonus to those contractors who employed minority subcontractors. Id. at 209. Although it was urged that such "goals" should be treated differently than obligatory set-asides, the majority did not even pause to consider this argument. Similarly, we do not think it matters whether a government hiring program imposes hard quotas, soft quotas, or goals. Any one of these techniques induces an employer to hire with an eye toward meeting the numerical target. As such, they can and surely will result in individuals being granted a preference because of their race. As the Court said in Adarand, "All govern- mental action based on race ... should be subjected to detailed judicial inquiry." Id. at 226 (emphasis added). Strict scrutiny applies and we turn to whether, in accordance with recognized doctrine, the regulations are narrowly tai- lored to serve a compelling state interest. " The Commission has unequivocally stated that its EEO regulations rest solely on its desire to foster "diverse" pro- gramming content. The Justice Department, on the other hand, argues that the FCC's policy is supported by twin governmental goals of seeking diversity of programming and preventing employment discrimination. It may be that the Commission has framed its objective more narrowly because it doubts that it has authority to promulgate regulations on an anti-discrimination rationale. As we have observed else- where, "the FCC is not the Equal Employment Opportunity Commission ... and a license renewal proceeding is not a Title VII suit." Bilingual Bicultural Coalition on Mass Media, Inc. v. FCC, 595 F.2d 621, 628 (D.C. Cir. 1978) (en banc). The only possible statutory justification for the Com- mission to regulate workplace discrimination would be its obligation to safeguard the "public interest," and the Supreme Court has held that an agency may pass antidiscrimination measures under its public interest authority only insofar as discrimination relates to the agency's specific statutory charge. NAACP v. FPC, 425 U.S. 662 (1976). Thus the FCC can probably only regulate discrimination that affects "com- munication service"--here, that means programming. 47 U.S.C. s 151 (1994); see NAACP v. FPC, 425 U.S. at 670 n.7. But it does not really matter why the FCC has expressed the government interest differently than DOJ. As the indepen- dent agency which promulgated the regulations in question, its view of the government interest it was pursuing must be accepted.
" The Commission never defines exactly what it means by "diverse programming." 13 (Any real content-based definition of the term may well give rise to enormous tensions with the First Amendment. Compare Metro Broadcasting, 497 U.S. at 567-68 (opinion of the Court) with id. at 616 (O'Connor, J., dissenting)). The government's formulation of the interest seems too abstract to be meaningful. The more appropriate articulation would seem the more particular: the fostering of programming that reflects minority viewpoints or appeals to minority tastes. Still, the Supreme Court, in Metro Broad- casting, recognized an abstract diversity interest as "impor- tant" without being much more precise about it than the Commission. And although Metro Broadcasting 's adoption of intermediate scrutiny was overruled in Adarand, its recog- nition of the government interest in "diverse" programming has not been disturbed by the Court. The government thus argues that we are bound by that determination.
" We do not think that proposition at all evident. Even if Metro Broadcasting remained good law in that respect, it held only that the diversity interest was "important." We do not think diversity can be elevated to the "compelling" level, particularly when the Court has given every indication of wanting to cut back Metro Broadcasting. In that case, the majority's analysis of the government's "diversity" interest seems very much tied to the more forgiving standard of review it adopted. It is true that the Court, denying that the supposed "link between expanded minority ownership and broadcast diversity rest[s] on impermissible stereotyping," thought the Commission and Congress had produced ade- quate evidence of a nexus between minority ownership and programming that reflects a minority viewpoint. Metro Broadcasting, 497 U.S. at 579. Yet the Court never ex- plained why it was in the government's interest to encourage the notion that minorities have racially based views. Cf. J.E.B. v. Alabama, 511 U.S. 127, 135-43 (1994). We do not mean to suggest that race has no correlation with a person's tastes or opinions.14 We doubt, however, that the Constitu- tion permits the government to take account of racially based differences, much less encourage them. One might well think such an approach antithetical to our democracy. See id. at 140 ("The community is harmed by the State's participation in the perpetuation of invidious group stereotypes...."). In- deed, its danger is poignantly illustrated by this case. It will be recalled that one of the NAACP's primary concerns was its belief that the Church had stereotyped blacks as uninter- ested in classical music.
" Justice O'Connor's powerful dissent in Metro Broadcasting, which described the government's interest as "certainly amor- phous," protested:
The FCC and the majority of this Court understand- ably do not suggest how one would define or measure a particular viewpoint that might be associated with race, or even how one would assess the diversity of broadcast viewpoints. Like the vague assertion of societal discrimination, a claim of insufficiently diverse broadcasting viewpoints might be used to justify equal- ly unconstrained racial preferences, linked to nothing other than proportional representation of various races. And the interest would support indefinite use of racial classifications, employed first to obtain the appropriate mixture of racial views and then to ensure that the broadcasting spectrum continues to reflect that mixture. We cannot deem to be constitutionally adequate an interest that would support measures that amount to the core constitutional violation of "outright racial balancing." ... the interest in diversity of viewpoints provides no legitimate, much less important, reason to employ race classifications apart from generalizations impermissi- bly equating race with thoughts and behavior."497 U.S. at 614-15 (emphasis added) (citation omitted). Thus in Metro Broadcasting, four Justices (who were subsequently in the Adarand majority) argued that the government's de- sire to encourage broadcast content that reflected a racial view was at odds with the Equal Protection Clause. Even the majority in Metro Broadcasting who thought the govern- ment's interest "important" must have concluded implicitly that it was not "compelling"; otherwise, it is unlikely that the majority would have adopted a wholly new equal protection standard to decide the case as it did. After carefully analyz- ing Metro Broadcasting 's opinions and considering the im- pact of Adarand, it is impossible to conclude that the govern- ment's interest, no matter how articulated, is a compelling one.
" As a final point, we note the sort of diversity at stake in this case has even less force than the "important" interest at stake in Metro Broadcasting. While the minority ownership preferences involved in Metro Broadcasting rested on an inter-station diversity rationale, the EEO rules seek intra- station diversity. It is at least understandable why the Commission would seek station to station differences, but its purported goal of making a single station all things to all people makes no sense. It clashes with the reality of the radio market, where each station targets a particular seg- ment: one pop, one country, one news radio, and so on.
" Even assuming that the Commission's interest were com- pelling, its EEO regulations are quite obviously not narrowly tailored. The majority in Metro Broadcasting never sug- gested that low-level employees, as opposed to upper-level employees, would have any broadcast influence. Nor did the Commission introduce a single piece of evidence in this case linking low-level employees to programming content. See Lamprecht v. FCC, 958 F.2d 382 (D.C. Cir. 1992) (sex-based preference failed when FCC introduced no evidence support- ing a link between female ownership and "female program- ming"). Indeed, as appellant emphasizes, the FCC's King's Garden policy indicates that the Commission itself does not believe that there is any connection between low-level em- ployees and programming substance. The Commission rep- rimanded the Church for preferring Lutheran secretaries, receptionists, business managers, and engineers precisely be- cause it found these positions not "connected to the espousal of religious philosophy over the air." Yet it has defended its affirmative action rules on the ground that minority employ- ees bring diversity to the airwaves. The FCC would thus have us believe that low-level employees manage to get their "racial viewpoint" on the air but lack the influence to convey their religious views. That contradiction makes a mockery out of the Commission's contention that its EEO program requirements are designed for broadcast diversity purposes. The regulations could not pass the substantial relation prong of intermediate scrutiny, let alone the narrow tailoring prong of strict scrutiny.
" Perhaps this is illustrative as to just how much burden the term "diversity" has been asked to bear in the latter part of the 20th century in the United States. It appears to have been coined both as a permanent justification for policies seeking racial proportionality in all walks of life ("affirmative action" has only a temporary remedial connotation) and as a synonym for proportional representation itself. It has, in our view, been used by the Commission in both ways. We therefore conclude that its EEO regulations are unconstitu- tional and cannot serve as a basis for its decision and order in this case.
" Because we so hold, we think it imprudent to decide the Church's RFRA and free exercise challenges to the King's Garden policy. To be sure, we have held only that the Commission's EEO program requirements are unconstitu- tional; therefore, our decision does not reach the Commis- sion's non-discrimination rule which King's Garden inter- prets. See 47 C.F.R. s 73.2080(a). But our opinion has undermined the proposition that there is any link between broad employment regulation and the Commission's avowed interest in broadcast diversity. We think, therefore, that the appropriate course is to remand to the FCC so it can deter- mine whether it has authority to promulgate an employment non-discrimination rule."
[footnotes removed, see links to full texts, below]
This answer argues against the earlier language specifically mentioning "people of color, women, and members of other underrepresented and disenfranchised communities."
The bylaws that this Plan is intended to ammend do specify that . "The Committees of Inclusion will monitor both station programming and staffing in consultation with the LSBs." and that, with respect to communities identified as underrepresented by the COI's, "Station managers and appropriate LSB committees will be expected to consider these communities in their future decisions about staffing, programming, and candidate outreach, subject to any applicable state and federal laws and regulations."
Nothing in the existing language or in the proposed Plan specifically
requires that Pacifica engage in illegal reverse-discrimination in
hiring or firing. (This is not a criticism.)
This question failed to adequately state specific vulnerabilities
identified by critics of earlier proposals.
This answer failed to address specific vulnerabilities identified by
critics of earlier proposals and appears to ignore the fact that
changing bylaws regarding the manner and selection of delegates in
order to obtain compliance with an administrative ruling would require
the significant time and expense of a ratifying vote of the
This answer does not respond to the question asked. It merely points out that the solution proposed by Lubell, which is subject to attack for its failure as a narrowly tailored remedy, is immune from attack on the basis of creating an unequal status.
The opinions offered by Lubell appear to be based on a reading of the Majority and Minority Reports of the Bylaws Diversity Committee without consideration of the effect of this language on the bylaws draft they were intended to ammend. This is the same fundamental problem that prevented consideration of the Committee's work at the last iPNB meeting.
There is no indication in Lubell's opinion that he was made aware of the detailed and specific legal challenges posted here to the recommendations in the Committee's Reports, so that he could specifically and intelligently address the issues raised in those challenges.
If the Committee presents this Plan or a minor modification of this Plan to the iPNB for adoption as a bylaws ammendment, the iPNB will have the choice to accept or reject an ammendment that will specifically contradict a number of other existing sections of the bylaws.
If, instead, the Committee devises implementation language that properly integrates this Plan into the bylaws draft so that it may be seriously considered by the iPNB, the Committee will need to get an updated legal opinion on their implementation language in order to properly comply with the mandate from the iPNB that returned their earlier Reports to the Committee.
Bakke v. Regents, Univ. of California (1978)
From: Larry Romsted [WBAI area]
The DLC [Diversity Language Committee]has until May 9 to get its report to the iPNB (see notes from iPNB minutes below). Note that he has not referred to bylaws Draft B. He has not set his recommendations into Bylaws language and he may have given powers to the Committees of Inclusion beyond their orginal purpose, that is to select which candidates are added to the boards to meet diversity criteria. He has also not indicated how these candidates would be chosen and has not recognized the responsibilities of the Election Coordinators as currently described in both Bylaws A and B drafts.
Should be fun listening to the BLC tonight try to figure out how to get all that done in written form on which the agree by May 9, after they finish their "brief" discussion about what SHOULD be done and established an agenda. Ray has yet to publish an agenda that Diallo has asked for.
For me, the real problem is that Lubell has provided no substantive legal analysis. He has not provided an analysis of relevant law or legal precedent. He has not provided an analysis of the law cited previously by others, e.g., Unruh. He has not analyzed the legality of Bylaws Drafts A and B and he has not cited relevant case law concerning the Majority report of the DLC.
He has, as he has said, made recommendations based on the minority report of the DLC committee, which was not his charge.
Now I wonder who convinced him to do that?
He has failed in his responsibilities to the committee, to the iPNB and to the listeners who have been in this struggle.
His recommendations are an insult.
He should not be paid.
Charge of iPNB to Diversity Language Committee from the minutes of the iPNB
From: A. Gregory Wonderwheel [KPFA area]
If it is for real then it shows the expected bias of the UC crowd on Lubell (or vice versa?), focusing on the minority report indeed!
I'm especially concerned about the reference to the 1978 FCC decision which has all the earmarks of the cursory citation of old-bad law I've seen before coming out of the UC group.
The statement: "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)."
Ascertainment process was created as the result of the United Church of Christ cases against the FCC in the 1960s and early 1970s. But the Reagan-dominated FCC destroyed the ascertainment process, arguing that it was too much of an administrative burden on the stations and on the FCC. There hasn't been an ascertainment requirement for many years.
In fact in reaction to the Supreme Court's Adarand decision of 1995, the FCC even rescinded its rules designed to help women and minorities participate effectively in the spectrum auctions for PCS licenses because they no longer felt that those rules would meet the strict scrutiny test required by Adarand.
Thus the claim that "Providing for an analysis of the composition of the stations' signal area has long established support" is really stretching the truth. While the support for analyzing composition of the station's signal area was established many (approximately 35) years ago, the analysis of the station's signal area is not currently established at all.
If this is the level of legal analysis that the diversity committee is being given then we are hip deep in doo doo.
and later down
Also we are deep into the problem of which race demographics are we
going to use. Arabs, Persians, Turks, etc. are not listed in the
census data except as "white" or "other" or "mixed" depending on
what the person made out of the choices.
The real issue is that since there are so many racial and ethnic groups in the world, there will always be an "underrepresented" group to add on to the board for "diversity" sake. The basic question is how many people are we going to have on the boards and how are they to be picked? This plan is nothing but a diversion to create boards that are half appointed by the COIs picking people based on race who were not elected based on representation of votes. In other words, the COIs can tell people to run and if they aren't elected they will be appointed. This has nothing to do with candidates "representing" groups. This is turning diversity on its head and creating an idol to worship in the name of diversity.
From: James Ross [WBAI area]
One of concerns I have in Jonathan Lubell's document is the role of the committee of inclusion [COI]. Although his language is vague, the impression is that the COI will have the power to whether and who add to the local board. (The language is excerpted below.) In other words, the process will not be automatic.
Also, the COI is given the ability to call for inclusion of even small groups on the LSB. Therefore, if it wants to, it can add a candidate with very few votes, as long as that candidate can be defined as a member of a disadvantaged or underrepresented group.
Further, the possibility of adding 8 seats, each with the full term, means that over two election cycles it's possible to have 16 non- elected seats out of 18+8 = 26 total listener seats, or 61% of listener seats non-elected. That's 50% of the total board.
Finally, it's not clear who the COI is answerable to or what recourse foundation members have if a COI is not acting in Pacifica's best interests.
The conclusion is that these bylaws allow for a corrupt COI to overpower staff and listener voters.
This is unacceptable. The COI should NOT have the power to add people to the board. Giving the COI this power makes it a target for anyone who wants to subvert the democratic process.
James Ross Exerpts of Lubell's language:
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 LSB members added by the Committee of Inclusion shall serve the same term as LSB members not added by the COI.
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.
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:
3. Based on this analysis, each COI shall have two sets of goals: a. 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).
Sent: Wednesday, May 07, 2003 11:59 AM
Thanks for writing.
The Lubell proposal is a very bad one for Pacifica. The analysis on the responses page is badly needed. There are no personal attacks on that page. The comments are directed at the draft.
I'm confused. You claim to support "a balanced, in-depth multisided presentation of the issues" , yet are asking me me to remove half the debate. Lubell's draft represents the NYC "Unity Caucus" position (he focused only on the "minority report" of the diversity language committee) and the page of responses come from people who, for the most part, articulately disagree. These responses to Lubell's draft stick to the issue and provide specifics.
Feel free to share this post.
Roger M, wbai.net
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