Responses to Lawyer Lubell's review of Diversity language committee draft
Diversity bylaw committee documents
5-31-03 Diversity language committee draft
6-2-03 Lawyer Lubell's review of Diversity language committee draft
From: Terry Goodman
The following excerpts from the 6-20-03 commentary of Jonathan Lubell are to set the context of my replies. Full understanding of Mr. Lubell's commentary requires a reading of the entire document, rather than just these excerpts.
Mr. Lubell is, in my opinion, correct.
Advice from attorneys is rarely offered as definitive, because judges can occasionally develop surprising reasons for unexpected decisions.
In the area of affirmative action, however, many specific approaches
have been declared illegal by final decisions of the United States
Supreme Court. Mr. Lubell's responsibility in evaluating proposed
diversity language for Pacifica was to compare this language with
approaches known to be illegal, and warn Pacifica if the proposal
would not pass legal muster.
Mr. Lubell is again, in my opinion, correct. Affirmative action has
not been outlawed. However, some forms of affirmative action have
been outlawed unless mandated by a court and administered under strict
judicial scrutiny. If Pacifica's proposals are equivalent to a form
of affirmative action that has been outlawed, this should be clearly
In claiming that a particular structuring of eligibility may be legal, Mr. Lubell fails to point out that the particular structure is pretty much irrelevant if the purpose is discrimination on the basis of race. Mr. Lubell implies that the legal problem is solved when individual nominees are not assured seats by the application of a demographic preference. In fact, the main legal problem arises when and if individual nominees are denied consideration for seats on the basis of race.
Mr. Lubbell's points 3 and 4 are substantially correct, in my opinion,
especially with regard to an affirmative defense based on First
It is indeed the equal protection clause of the Fourteenth Amendment upon which challenges ro the diversity plan will most probably be based. Under the DLC proposal, a special program of added seats is created. If an LSB as constituted has not met pre-defined diversity goals, then Committees of Inclusion may add seats for members of groups whose goal was not met. This denies equal protection to all members of groups not identified as under goal, and forecloses their consideration for added seats. When the decision is made to add seats, if seats are added for the specific purpose of achieving racial diversity, those seats become illegal set asides.
"If petitioner's purpose is to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin, such a preferential purpose must be rejected not as insubstantial but as facially invalid. Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. This the Constitution forbids."Without necessarily adopting the language of the lower court in this case, Justice Powell, in announcing the judgement of the Court, pointed out that the California court held that the Equal Protection Clause required that "no applicant may be rejected because of his race, in favor of another who is less qualified, as measured by standards applied without regard to race."-- J. Powell in Regents of the University of California v. Bakke, 438 U.S. 265, 311-312 (1978)
There are some other problems with the proposal of the Diversity Language Committee that Mr. Lubell should have pointed out, but the primary problem with the proposal, in my opinion, is the extent to which the program of added seats may be interpreted as equivalent to the special admissions program at UC Davis, which the Court affirmed was invalid in the Bakke case.
From: Rafael Renteria
This seems to be a pretty fair assessment of Lubell's opinion.
Lubell discussed the validity of demographics in his first opinion. The point is that the standard for inclusion under added seats is not based on race, gender or other status as a member of a group, per se - rather inclusion is granted to _any_ given group based on a cross comparison between the demographics and the level of representation on the board.
Since Lubell advised against naming categories of oppressed groups for inclusion on that basis alone, and since _any_ given group may be underrepresented depending on the election results, there is nothing in the plan as he outlines it that could be called a race or gender based quota.
His other main point seems to be that in Metro v FCC and in Nat'l Citizens Committee for Broadcasting v. F.C.C. the Court upheld diversity as a compelling govt interst, and related that interest in Nat'l Citizens Committee to the First Amendment. He also cites Justice Powell's argument in Bakke that indicates that creating a situation where a divesity of outlooks are available may be constitutional.
I think - not that I'm a lawyer - that the Court's opinon in Metro recognizing a serious gov't interest in minority ownership and in realiting minority ownership to diversity of content in broadacsting is also a very strong card in our favor if we follow Lubell's overall orientation.
As per Evan's question regarding the threshold on votes as related to who fills an added seat, the reationale of the plan is to add seats to create a demographic based diversity. The legalities don't seem to me to be affected by the threshold of votes, and I assume that's why he didin't address it. As Evan correctly notes, not all of our diferences have to do with legalities.
On that note, I personally wish that while Lubell was discussing what strengthens or weakens the implementation fo the plan, that he hd made note that adding only 5 seats is a far cry from what would not only be legal but desireable in an effort to truly represent the community.
The arguemnt put forward by many about boards becoming too large is fraudulent, pragmatic, and blatantly amoral.
--- In NewPacifica@yahoogroups.com, evan davis wrote:
From: Dave Fertig
First, I want to thank Jonathan Lubell for engaging this difficult and thankless task.
Second, I must note that at first reading it seems this analysis from attorney Lubell does not address the legal issues arising from skipping over higher vote-gettiong-candidates, and the possible legal claims from voters as well as skipped vote-getters, for the discounting of their votes (by skipping over their higher-vote-getting preferred candidate).
As I've said, if the implementation of this particular remedial mechanism will result in someone being skipped over, and their supporters' votes thus being effectively discounted: that is where the challenge will arise. Indeed, such a voting outcome is specifically "determined by the nominee's race, ethnicity, gender, etc." Contrary to what it appears Mr. Lubell is saying.
As a legal fiduciary of the Foundation, I must be careful about jeopardizing it legally and financially. if that makes me "conservative", ok. This ship isn't going belly-up on my watch, if I can help it.
We must keep the entire network in mind: personnel, FCC licenses, existing lawsuits, contract issues, programming policies, personnel policies and processes, political dynamics, etc., while the whole real-politik world is just about blowing up, OH, and convert the whole organization into a listener-accountable system with electoral processes after over fifty years of mostly self-selecting boards.
Anyway, I do have a problem with picking legal fights which will certainly cost many thousands of dollars all the way to Rehnquist-land, while we're about broke (seriously! Look at our budget, our debts, our battles and our enemies. And ourselves. We're not in great shape.)
And might the lawsuit result in making bad law? I think so. The suit will certainly be filed in the most conservative jurisdiction possible and end up at the Supreme Court. The S.C. won't want to advance such issues after (my prediction:) being politically hogtied into giving some ground on the Michigan cases.
Thus I am still persuaded that any skipping over and any specific categorization and numbers in the bylaws will raise, rather than resolve, almost intractable legal issues.
I haven't gone through the remaining 1700 emails (I had over 4k waiting for me), so maybe the further analysis is in there somewhere.
It is not the standard of inclusion that causes 14th Amendment problems, it is the exclusion that accompanies this standard, and the purpose of that exclusion. No court is so stupid as to think that the application of demographics in the setting of these standards will not impact categories covered by the equal protection clause.
Correct. The plan does not establish race or gender based quotas. It establishes a structure for the determination and application of race or gender based quotas.
Correct. There is a compelling state interest in promoting the sort of diversity we seek, especially in broadcasting, but any consideration of race is subject to the standard of strict scrutiny, and the use of race as a prerequisite for eligibility into an affirmative action program independent of judicial scrutiny is invalid, if it forecloses consideration of any individual on the basis of race.
The language in the DLC proposals of 5-20-03 and before requiring that Committess of Inclusion apply illegal criteria in the awarding of added seats appears to have been removed from the final DLC language of 5-31-03. Now, rather than requiring illegal application of racial quotas, the proposed language simply allows or encourages it.
This is certainly a major improvement.
If, prior to the opening of nominations, Committees of Inclusion issue written reports stating reasonable goals for ALL groups, including groups historically overrepresented, the purpose of the added seats mechanism could arguably be shown to be other than a denial of equal protection to persons who are members of groups for which goals have not been established. Any pre-election Committee report that fails to set reasonable goals for all groups in a category under consideration, however, will reveal the purpose of the added seats mechanism as illegal discrimination.
Reasonable goals should be clearly defined as a specific percentage range relative to actual demographic statistics, as Lubell suggests.
Groups must also be defined relative to the demographic data so that no group is so small as to become ineligible for consideration for an added seat. This could result in some odd catch-all group definitions, but is necessary to preserve the individual right of equal protection.
The failure of the proposed language to adequately protect against the setting of illegal quotas by requiring the setting of reasonable goals for all groups in any category for which goals are established argues against the adoption of this language as currently proposed.
Rafael's reply fails to address the legal problem identified in my statement.
The main concern of the anti-encumbrance supporters is that added seats dilute the choices of the electorate by seating LSB members with little constituency. Prior proposals of the DLC specifically discriminated against white males, which is illegal, so this was a specific concern. The DLC has finally dropped it's mandate to discriminate against white males, but the structure to allow illegal discrimination on the basis of race remains.
The latest DLC proposal appears to postpone illegal discrimination until goals are announced by Committees of Inclusion, rather than enshrining clearly discriminatory language in the bylaws. If, by error or intent, Committees of Inclusion foreclose consideration for added seats to any individual on the basis of race, at that point the enabling language in the bylaws will become illegal.
Under the latest DLC proposal, the WPFW COI could choose not to set a
goal for whites, or the KPFK COI could choose not to set a goal for
chicana/o LSB representation.
Huh? Any LSB candidate who does not qualify for an added seat because
the COI chose not to set a goal for his or her race would have
standing to challenge for a denial of equal protection. The choice of
what race an individual must be to sue is left up to the local COIs.
If the COI failed to set a goal for African Americans for the WPFW
elections, added seats would be a denial of equal protection to
African Americans. There are legal ways to allow preference on the
basis of race, but there are no legal ways to deny consideration on
the basis of race, except under direct judicial scrutiny. Also, I
think it is unfair to Lubell to call the added seats model his plan.
The proposed structure is now more in keeping with its declared
purpose than were prior proposals from the DLC, but the structure
allows discrimination on the basis of race, and has inadequate
protections against abuse.
The Committees of Inclusion are empowered to choose which groups to
count and which groups not to count. If and when a COI decides not to
set a goal for some group, at least by inclusion in an "all other
groups" category, they are involving Pacifica in a process of
discrimination that is illegal if it is on the basis of race. The
proposal could have included language to prevent illegal
discrimination by Committees of Inclusion, but it doesn't. It could
have included checks and balances to avoid abuses by COIs, but it
Again, Rafael avoids addressing the illegality of specific race-based requirements for special diversity enhancement programs.
Under the law, harm is assumed if racial discrimination is proven.
The question of harm is ignored because it is irrelevant to the legal
analysis, except when calculating damages. I think damages in actions
filed under the Unruh Civil Rights Act are set at $250 absent any
showing of harm, and limited to $50,000 per aggrieved person per
respondent upon a showing of emotional distress or other harm.
The DLC proposes that COIs be empowered to deny eligibility for added
seats to individuals who are members of groups for whom the COI failed
to set goals or who are members of groups whose goals have been met.
What Rafael consistently does is fail to point out any inaccuracy in
the assertions he argues against. He makes counter assertions that
can be easily shown to be fallacious, but he avoidis directly
addressing the arguments of his opponents.
Not necessarily. Only those groups selected by the Committees of
Inclusion for demographic analysis of the LSBs as constituted are
offered a remedy; but equal protection is an individual constitutional
right, not a group right. If any individual is excluded for
consideration for added seats because of his or her race, it is a
violation of the equal protection clause of the 14th Amendment.
Rafael assumes that the mechanism will be applied fairly when there
are no real controls in the proposal to guarantee fairness or
objectivity in the application of demographic data.
Not at all. I've pointing out flaws and showed how they can be fixed,
if the true goal of the mechanism is LSB diversity equivalent to
signal area diversity. I've done this even though it is the DLC that
should have done it, and I've done this even though I disagree with
the whole premise that Pacifica membership demographics and LSB
demographics should be tied to signal area demographics.
I am, at least.
I wasn't talking about equal consideration for added seats. I was
just pointing out that complete foreclosure of consideration for added
seats is illegal, if such denial of consideration is based on race.
My logic is the logic of the United States Supreme Court. Discrimination on the basis of race is illegal even if there were no mention of diversity in the bylaws. Adding seats can only serve to consolidate the power of whatever group or groups dominate the Committees of Inclusion that determine the basis for the adding of seats. Proportional representation voting methods assure appropriate representation of the membership, and require no post-election adjustments.
You know, Lubell is really right when he implies in his comment below that it really isn't his business or problem whether the "diversity"/affirmative action/quota bylaw is legal or not. It's Pacifica's problem. And really, its true-- It is our Problem. And I believe Pacifica shouldn't worry about what may be legal or not legal when it truly believes in something. We didn't worry about legalities when we supported all sorts of behavior and speech--much of it defined as "illegal" in many places, during the Vietnam War, etc. If Pacifica was around during slavery, we wouldn't worry about whether it was the law of the land or not-- We would oppose it. Lew Hill didn't worry about the fact that being a pacifist in the middle of a world war was legal or traitorous or anything else-- he just acted upon his conscience.
This stuff about whether its legal or not to insert this severe quota language is a somewhat legitimate worry--not one to be taken lightly. But some of the people claiming that we can't have this language because of the legal trouble we'd run into are just using that as a ploy to defeat the language. (And that's OK with me, because I want the language defeated. I don't want ANY diversity/quota language at all in our Bylaws, whether its draft A, B, C right through Z)
The real question is: Do we need diversity/quota language cemented into our Bylaws? The answer is: NO, we don't. Not so much as one word!
We are already probably the most diverse organization in the United States and getting more so every day in most of our stations. If some of our stations don't apply the rules of fairness and spread the air-time and LAB and employment wealth around there are already enough laws on the books do deal with that; and if thats not enough.. Community action, the labors of individual activists/producers, and, last but not least, the pressure of the listening public will always guarantee that the Hegelian pendulum swings the way it should.
Lack of Diversity rules and requirements didn't stop black activists from WBAI, with the help of white liberals (including the very white liberals who controlled the station originally) from swinging WBAI from a white-controlled station and LAB to a black-controlled station and LAB. Swung so far in our case, that, if we went by the "logic" of the Unity Caucus, we would need an "anti-diversity" set of Bylaws to restore equilibrium and create real fairness at our New York station.
From what I've heard of the Washington station and seen up close and personal of the people that ran and programmed that place, there is certainly no diversity protection needed down there--just the opposite, probably, as in the case of WBAI. Some of the worst racists and anti-equality types came from WPFW and landed in positions of power Nationally and, for a while, at WBAI.
Diversity/quota rules cannot save a station managment or a board from becoming filled with bigots and haters of democracy, fairness and free speech; I present WBAI (and refer to some former and some current members of station and board) as exhibit A in this case.
Quotas kept/keep Blacks and Jews and Asians, The Disabled, ad infinitum, out of government, businesses, schools, clubs, etc. in all the ages past. These bad laws and rules (even when unwritten) were bad then, and they are bad now.
Pacifica, in a way, was born/created to oppose the kinds of quotas and unfairness in America that kept certain points of view off the air. Should we now institute the same kinds of laws in our own constitution?
Look at the people on local boards and on the national board and all the activists everywhere in Pacifica who are considering this issue--on both sides. They are the most diverse group of people you could possibly imagine. None of these Blacks, Women, Gays, Latinos, Asians, etc. needed one single rule to take control of huge chunks of power in our organization. They did it by their energy, hard work, relentless attention, passion, etc. The same qualites that were used throughout American history to wrest power from the the people that had it. In New York, it was the Irish from the English and Dutch; the Jews and Italians from the Irish; The Blacks and Latinos, and lately, the Asians from the Jews and Italians (and Left-over Irish, as in the Police Department).
The Unity Caucus and its proponents and supporters are pushing a system that will lock us into a jail of intolerance and prevent the kind of change that any evolving organism needs to live and breath.
Mike Feder [WBAI producer]
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