• 5-31-03 Diversity language committee draft
• 6-4-03:Responses to Lawyer Lubell's review of Diversity language committee draft

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TO: Members of the Diversity Language Committee June 2, 2003

FR: Jonathan W. Lubell

RE: Legal Issues Concerning Pacifica's Bylaws and Diversity

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Before examining the legal issues relating to the detailed diversity language proposals for revision of Draft A of the Bylaws, it would be helpful to present an overview.

1. In the current legal environment it is difficult to draw the outline of a permissible affirmative action plan. This is perhaps best reflected in the speculations and varied predictions as to the outcome of the Univ. of Michigan cases pending before the U.S. Supreme Court and, in particular, the viewpoints of Justices O'Connor and Kennedy. Because of the differing legal views and the charged political setting, it is impossible to reach a conclusive determination as to whether in particular an affirmative action plan will put the Foundation in jeopardy, or to what extent will it be put in jeopardy. I do not think it would be responsible to reach a definitive conclusion as to what is legal, what is illegal. Nevertheless, some conclusions can be reached as to what may be more subject to challenge and what may realistically achieve the goals of affirmative action. It is important to realize that affirmative action, although restricted has not been outlawed in this country.

2. While the setting aside of a number or percentage of positions/seats to a specified racial, ethnic, gender, etc., group would most likely not pass legal muster, absent evidence that the plan was designed to remedy past and present discrimination (United States v. Paradise, 480 U.S. 149 (1987), the structuring of a system where eligibility for positions/seats rests on the demographics of a defined area may well be legal. In such a structure eligibility does not mean that the nominee has been assured a position/seat by reason of race, ethnicity, gender, etc. Rather, she/he has been placed in a pool from which she/he may ultimately be voted for a position/seat. That vote will not be determined by the nominee's race, ethnicity, gender, etc.

3. In U. S. Paradise, 480 U.S. at 167, the Court found there was a compelling governmental interest for the quota because it was designed to remedy past and present discrimination by the Alabama Department of Public Safety. In Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990) the Supreme Court held that affirmative action programs designed to enhance diversity are constitutionally permissible as long as they serve important governmental objectives and are substantially related to their achievement. This intermediate level of scrutiny standard for affirmative action programs was rejected by the Supreme Court in Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 205 (1995) where the Court applied a strict scrutiny standard of review requiring that the Plan's classifications (1) further a compelling governmental interest and (2) are narrowly tailored.

4. While constitutionality of a quota-based Plan would require proof of the past and present discrimination it was designed to remedy, (fn) a Plan designed to achieve diversity may still be regarded as meeting the strict scrutiny standard of review. Thus, although the intermediate scrutiny standard of Metro Broadcasting was later rejected in favor of strict scrutiny, no Supreme Court decision has directly rejected the application of a diversity rationale for affirmative action programs. This remains an open issue - see e.g.: J. Powell in Regents of the University of California v. Bakke, 438 U.S. 265, 311-312 (1978), stating an affirmative action plan's taking into account the diversity of the students would be constitutionally permissible; J. O'Connor in Wygant v. Jackson Board of Education, 476 U.S. 267, 286 (1986) agreeing with Justice Powell's view in Bakke that fostering racial and ethnic diversity in higher education is a compelling interest. In Justice Powell's view a diverse student body would help foster a robust exchange of ideas. The role of the media in assuring a robust exchange of ideas may be presented as a compelling government interest because it is only with such an exchange that the First Amendment can fulfill its role. In Nat'l Citizens Committee for Broadcasting v. F.C.C., 555 F.2d 938, 948-49 (D.C. Cir. 1977), the Court of Appeals for the District of Columbia (per C.J. Bazelon) stated:

"The Supreme Court has given its approval to a diversity policy based on First Amendment and antitrust considerations. The First Amendment 'rest[s] on the assumption that the widest possible dissemination of information from diverse antagonistic sources is essential to the welfare of the public.' 'The public interest' standard necessarily invites reference to First Amendment principles."

footnote: Generalized assertions of past discrimination would not be enough. City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989).

However, the direction of Court decisions since Adarand indicates that arguing diversity alone as a compelling government interest to justify an affirmative action plan could raise a legal challenge. The possibility that such a challenge would fail depends not only on the current availability of the diversity argument in the context of the function of the First Amendment but also the nature of the affirmative action plan which does not set aside for any individual a position or seat based upon her/his race, ethnicity or gender.

5. Finally, it is assumed that whatever diversity plan Pacifica adopts will be challenged in court. This is only an assumption. A plaintiff would have to claim that she/he was denied equal treatment because of a procedure which required that another be treated more favorably in reference to a benefit based upon a race, ethnicity, gender, etc., classification.

Proposed Bylaws Revisions
Article Three
Section 10

Draft A of this section was changed by the addition of the last sentence providing for a 30-day record date for the 2003 elections for Local Station Boards. I do not think this raises any affirmative action legal problems.

Article Four
Section 5

Neither the inclusion nor the exclusion of the language of the Foundation's mission will per se affect the legal status of this bylaw. However, its inclusion will give a basis for the diversity of the delegate pool which helps avoid the charge that the structure will operate to discriminate against any specific group, race, etc. The provision that the LSB "shall include members of societally underrepresented and disenfranchised groups" may arguably furnish a grounds for legal challenge alleging that it appears to require the placing of some members of particular groups on the LSB. Such a claim would be hard to sustain since the plaintiff would have to argue that she/he is being denied a benefit because she/he is neither underrepresented nor disenfranchised

The prevailing language that "the candidate pool composition shall be reasonably demographically consistent with that of the local station signal area, also recognizing the need to include historically underrepresented groups" raises two questions:

1. "[S]hall be reasonably demographically consistent" does not have a clear meaning - one person's understanding of reasonably consistent may not be another person's. It is possible that reasonably consistent could result in no change in diversity regardless of the demographics. Regarding these bylaws as an effort to achieve affirmative action based on diversity while avoiding a challenge as an illegal plan the language could be changed to provide that the delegate candidate pools shall be at least within ___ percent of the demographics of the local station signal area. This would not put the plan in jeopardy for the reasons discussed above.

2. The phrase "recognizing the need to include historically underrepresented groups" does not create a legal problem. However, the language does not implement any specific action and may in the future cause conflict as to its meaning.

The deletion of the 50% women, 50% people of color minimum diversity goals contained in Draft A avoids a legal challenge. Although there is an active dispute among judges and lawyers as to whether "goals" are to be treated the same as "quotas" in examining an affirmative action plan, eliminating the 50% goals will remove Pacifica from being involved in this dispute.(fn) Draft A goals have specific reference to particular groups; diversity goals which have reference only to demographics would most likely be viewed differently and substantially reduce the possibility of jeopardy to Pacifica.

footnote: Whether Pacifica believes that it is appropriate to be involved in a legal battle to uphold diversity number or percentage goals is not a matter that I have considered.

The description of the sources from which demographics shall be ascertained does not raise a legal challenge. Further, retaining the phrase "such as the NAACP and MALDEF" would not have created a legal problem. The provision does not limit the organizations to those two. In addition, the historic under-counting of peoples of color, which is well-recognized, would also justify the reference to those two organizations.

Making extension of the nomination periods mandatory ("shall" rather than "may", elimination of "in the discretion") does not raise a legal question. Its purpose is to reach the diversity goal for the candidate pool. No one is being excluded from the pool, nor is any position being set aside for members of any particular group.

Article Four
Section 7

Providing that the local COI shall evaluate the composition of the Local Station Board to determine whether the LSB as constituted meets the COIs' diversity goals for delegate candidate pools does not create a legal problem because the diversity goals are based upon demographics and the subject is a candidate pool not a candidate seat or position as such.

The procedure for the selection of additional delegates for diversity would not put Pacifica in jeopardy. The up-to-five additional candidate would gain their seats because they obtained the highest number of votes in each demographic category defined by the COI as requiring additional representation after the election in order to meet the COI's diversity goals. It is demographic classifications and number of votes rather than set quotas for specific racial groupings that result in the candidate obtaining a seat. The provision that no person shall be named to an added delegate seat who does not receive at least 10% of the number of minimum votes required to be directly elected is consistent with Section 7's procedure for the selection of additional delegates for diversity.

Article 4, Section 7 of Draft A raises the legal problem of goals defined in gender and racial percentage terms (50% women, 50% persons of color). As discussed above there remains an active dispute in legal circles as to whether goals should be treated as quotas.

Article Four
Section 10

The third paragraph of this Section 10 which was not included in Draft A does not appear to raise a legal issue.

Article Four
Section 11

The deletion from Draft A's Article Four, Section 11 of the language shortening the term of a delegate elected under the diversity procedure does not create a legal problem. The inclusion of that language may have created a problem: shortening the term of office to two years might be charged as a discriminatory act

Article Five
Section 1F

The addition of subsection F, which is not in Draft A, creates no legal problem. It calls for a training program that many U.S. entities have which has never been stricken as illegal.

Article Five
Section 3A, B, C

These subsections, which remain the same as in Draft A, create no legal problems.

Article Five
Section 3D

The language "meets that Committee's national diversity goals based on the demographics of the combined signal areas . . ." will minimize the extent of jeopardy of the Plan because it is directed at achieving goals of diversity by use of demographic classifications. As discussed above, this approach takes advantage of the recognized government interest in diversity - particularly in the media area, and the use of classifications which rest on the demographic area rather than the entity whose seats or positions are at issue.

This provision drafted by the DLC significantly differs from Draft A of the Bylaws. The latter is based upon 50% women and 50% persons of color. Consistent with other proposed changes by the DLC the 50/50 formula has been replaced by diversity goals based upon the demographics of the area of the particular station.

Article Five
Section 6

The legal issues discussed above regarding Art. 4, Sec. 5 and Art. 5, Section 3D apply to this section. There is nothing in the particular procedures for the transition election that raises a legal problem under affirmative action law. Draft A of the Bylaws provided for 50% women and 50% people of color. Consistent with the approach of the draft of the DLC this provision has been substituted by diversity and demographic language. The DLC draft presents a significantly less likelihood of legal jeopardy than Draft A.

Article Eight
Section 4

The unique structure of a "National Committee of Inclusion" (COI) and five "Local Committees of Inclusion" "[f]or the purpose of developing and monitoring diversity" does not create the likelihood of legal jeopardy. Membership in the COIs is related to the demographics of the signal areas.

The fourth and fifth paragraphs of Section 4 which, in the prevailing language, essentially limits the national COI to monitoring functions do not raise legal issues. However, in eliminating the function of "set[ting] and implement[ing] diversity goals for the Board," this provision weakens the possibility of achieving the diversity goals provided in other sections of the Bylaws.

The change by Fertig from "will be expected to consider these communities" to "shall take all steps reasonably necessary to achieve inclusion of these communities" does not change the legality of this section. However, this change does make firmer the commitment of achieving the diversity goals. Again, no set- asides or quotas are provided for. The same conclusion applies to Fertig's current use of the phrase "attain the applicable diversity," in paragraph seven of Section 4 rather than "improve the status of underrepresented communities in their respective signal areas." Similarly, the change by Fertig in the eighth paragraph of Section 4 (using the phrase "applicable diversity goals") will make firmer the commitment to the diversity goals of the COIs.

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• Diversity bylaw committee documents