Diversity bylaws proposals
The lawyer's bylaws draft
This was submitted by Diallo Kantambu of the KPFT LAB
Proposed Language for Bylaws Diversity Section
There shall be established in each of the Pacifica signal areas, a subcommittee of the National Board to monitor under-representation of communities in their respective signal areas. These "Committees of Inclusion" will monitor both station programming and staffing. They will also monitor election candidates and work with the Outreach committee to improve the diversity of election candidates at the local and national level. These Committees of Inclusion shall monitor diversity goals in consultation with the general manager, local committees and the chair of the PNB. These diversity goals will be published and maintained in each respective signal areas. Communities deemed to be under-represented by the Committees of Inclusion will be identified and the extent of their under-representation shall be communicated to the PNB, the respective LSBs, and the Outreach committee. Station managers and outreach committees will be expected to consider these communities in their future decisions about staffing, programming, and candidate outreach. All station managers and committees will report to the PNB and the LSBs quarterly on the status of diversity within their respective signal areas. The PNB shall query and monitor signal areas with identified under-represented communities and any plans for addressing these under-represented communities. Where necessary and with due notice, the PNB will suggest and/or direct managers and committees to implement specific changes to improve the status of under-represented communities in their respective signal areas. The PNB will assist and encourage station managers and committees in finding new ways to improve recruitment efforts in their respective signal areas.
A Further Explanation of the Committees of Inclusion Diversity Proposal The Committees of Inclusion diversity proposal was designed to operationally bring about diversity in an organic and naturally engaging way. Instead of people in each area superficially complying with an external mandate, each station area will engage in a critical self examination of what diversity mean in their area and what has been the obstacles to achieving diversity in their area. In other word, they will have to talk with one another about a topic that many of us have not yet learned to talk about. It will also bring about diversity because managers and committees will be mandated to develop diversity goals that will be publicized quarterly before the PNB and the public. Few managers and committees will want to stand up publicly and constantly miss their diversity goals. Also, the PNB will be on stronger grounds if they are monitoring station goals that individualized to each station area. Finally, the PNB should consider progress toward diversity goals as a significant component of how station managers are evaluated. Committees of Inclusion will not set diversity goals but will help with managers, the LAB/LSBs and other committees to reach diversity goals. These committees will scrutinize the community and each station area to identify under-represented communities. These committees will be the place where a community member that has a complaint about inclusion can go to state their concern. These concerns can then be examined and brought to the attention of the people that can implement the necessary changes if changes are warranted. Diversity is one of the most important concerns for any organization rather it be for profit or non-profit. Diversity in most all cases is a function or concern of the executive level of an organization. Pacifica should be no different. Since ultimate power is vested in the PNB, the Committees of Inclusion should properly be a standing sub committee of the PNB. Their fiduciary concern will be all of Pacifica but they will operationally function within each station area. The members of each of these five committees will come from their respective station areas. The Committees of Inclusions will not have power to force change, but they will have standing to initiate change. They, along with the managers of each station area, will report quarterly to the PNB and advocate for changes they deem necessary. The part of this proposal that will most need to be discussed is how to insure diversity in elections. If election outcomes are not diverse enough, we don't want to have to wait a year or more to include those that have been left out. If the current proposal for mandated numbers do not become a reality, monitoring candidate pools will be necessary.
This was submitted by Gregory Wonderwheel
Here is my proposal on the question of diversity in the bylaws and affirmative action in the policies. I believe that this plan is legally defensible from all directions.
[The following Article is for the bylaws.]
ARTICLE ___. DIVERSITY OF PARTICIPATION AND REPRESENTATION.
The Foundation categorically condemns any and all practices that place people into castes, i.e., social divisions based on group identities, and then treats one caste has having a higher position or value in society than another. The Foundation emphatically endeavors to actualize fair and equal access in the diversity of membership and in the rights and privileges of membership, including representation on boards and committees as well as equal opportunity in employment. The Foundation also upholds the public interest of prohibiting discriminatory practices that may exclude or diminish full and equal participation in any program or activity on the basis of ethnic group identification, religion, age, sex, color, or a physical or mental disability. To balance these important but sometimes seemingly conflicting interests, the Foundation shall not fail to make substantial efforts to achieve representative diversity at all levels of the organization while at the same time avoiding creating a rigid quota system. To make this dedicated intention a reality, the Foundation shall, insofar as practical and consistent with the purposes of the Foundation, promote demographic diversity throughout the Foundation, by assuring fair representation of persons who have been historically under represented in society or treated as if they were in lower social castes, so that the Members, volunteers, and employees as well as the Delegates, Directors, boards, and committees of the Foundation shall fairly represent the demographic diversity of the populations that each station broadcast area serves. To implement this Article the Board shall adopt a policy that includes an affirmative action plan for diversity and assigns to a specific committee of the Board the overall responsibility for the implementation and monitoring of compliance, to the fullest extent permissible, subject to applicable federal and state laws and regulations, with the affirmative action policy .
[This is for a proposed policy as an Affirmative Action Plan to be adopted to establish the policy.]
POLICY # ___.
AFFIRMATIVE ACTION PLAN FOR FAIR AND FULL ACCESS AND REPRESENTATION
1. Intent: To balance the important but sometimes seemingly conflicting concerns of the public policy for fair and equal access in diversity of membership and the rights and privileges of membership, including representation on boards and committees as well as equal opportunity in employment, with the public policy that prohibits discriminatory practices such as quotas or mandatory percentages that result in the deterioration of full and equal participation in any program or activity on the basis of ethnic group identification, religion, age, sex, color, or a physical or mental disability.
2. Scope: This policy applies to the Members, volunteers, and employees as well as the Delegates, Directors, boards, and committees of the Foundation.
3. Application: The Personnel [A.K.A. Human Resources? Affirmative Action Compliance?] Committee is authorized to implement this policy and to report to the Board of Directors any significant violations of the policy.
4. Data Gathering, Reporting, and Annual Review: The Personnel Committee shall prepare an annual report to the Board of Directors that describes the attainment, or lack thereof, of the goals of this policy. The report shall include data of the following kind.
A. For each group or assembly of members to be analyzed a list, table, or grid showing of the following:
1.) African-Ancestry men/women
In addition, each station area shall be divided by its Local Station Board, for reporting purposes, into distinct, relatively large, geographic sectors, not numbering more than six (6), and unless the Personnel Committee finds it inappropriate for the analysis, the list shall report: 15.) the geographic sector men/women
To protect the privacy of the people involved, data shall be collected by self identification, visual observations, or membership application only.
B. The groups or assemblies of Members to be analyzed shall include:
C. Reporting Cycles.
Items 1.) and 2.) of subsection B. shall be reported annually within two months of the elections of the bodies. Items 4.) and 5.) of subsection B. shall be reported annually at the annual meeting of the Board of Directors. Item 3.) of subsection B shall be reported triennially at the annual meeting in years evenly divided by three. Each Local Station Board shall be responsible for providing demographic information for their station broadcast area to the Personnel Committee in a timely manner for preparation of the triennial membership report. The station broadcast area is the geographic area in which the station's broadcast signal may be regularly heard. The demographic data in the triennial membership reports from each Local station Board shall be appended to this policy. Reports made pursuant to item 6.) of subsection B shall be reported as designated in the directive creating the report.
5. Goals and Target Values for Diversity of Participation and Representation
A. The following goals and target values reflect neither the minimum nor the maximum percentages that should come from the targeted group categories. Rather they are approximations of the comparative composition that the Foundation uses to promote diversity and assure fair participation and representation of traditionally under-represented segments of society we seek to serve in radio broadcasting operations.
1.) The percentages for the goals for Board of Directors composition are:
2.) The percentages for the goals for Local Station Boards of Delegates composition are:
a) At least 50% people of non-European-Ancestry (or as part of the triennial
Membership report each Local Station Board shall determine the demographics
of the station broadcast area and shall endeavor to assure meaningful
representation of all the categories of ancestry listed in section 4.A.
according to their percentages of distribution in the station broadcast
3.) The percentages for the goals for Membership composition are:
a) As part of the triennial Membership report each Local Station Board shall
determine the demographics of the station broadcast area and shall endeavor
to assure meaningful participation in and representation of all the
categories of ancestry listed in section 4.A. according to their percentages
of distribution in the station broadcast area
4.) The percentages for the goals for employee composition are:
a) All the categories of ancestry listed in section 4.A. according to their
percentages of distribution in the station broadcast area
5.) The percentages for the goals for on-air broadcaster composition are: the same as the Local Station Board composition for the radio station area.
a) At least 50% people of non-European-Ancestry (or as reasonably
representing all the categories of ancestry listed in section 4.A. according
to their percentages of distribution in the station broadcast area )
6.) The percentages for the goals for composition of the bodies reported pursuant to item 6.) of Section 4.B shall be as designated in the directive creating the report.
B.. The Board of Directors shall review these target percentages every three years in conjunction with the triennial membership report.
6. Election for Local Station Board Delegates
A. The Local Station Boards shall cooperate and work with the Personnel Committee in order to comply with these diversity and representation goals. The Local Station Boards shall each appoint a candidate search committee in order to ensure that the candidate pools for election of Delegates will comply with these diversity target goals. If the candidate pools are significantly (e.g., more than 20% short of the goals) not in balance with these diversity target goals, the candidate search committees shall focus their search and recruitment efforts to maximize interest in and candidate applications from members of the under-represented target groups.
B. If the candidate pools do not reasonably fulfill the diversity target goals, as determined by the Election Committee of the LSB, then the election of Delegates in that station area shall be postponed for at least one period of 14 days. If after the first 14-day period of postponement the diversity target goals are still not met, then the Election Committee or the Local Station Board may either postpone the election for another 14-day period, if it is determined that such postponement will likely produce results, or proceed with the election. A decision of the Local Station Board will prevail over a decision of the station Election Committee.
C. Postponement pursuant to this section of an election of Delegates for one station area shall not affect the elections at the other station areas unless the Board of Directors otherwise specifically directs.
D. No Member's vote for a Delegate shall not be counted because of the candidate's ethnic group identification, religion, age, sex, color, or a physical or mental disability.
7. Other Provisions [Reserved]
Even though, as of the 2000 census, the US population is currently distributed as set forth in the following table, the Foundation acknowledges that the urban areas it serves has higher percentages population of non-European ancestry and therefore adopts the figure of "not less than 50%" as a reasonable percentage considering the historical and present tendencies to treat persons of non-European ancestry as though they are members of lower castes.
Total - % of pop.
NOTE: Percentages add up to more than 100% because Hispanics may be of any race and are therefore counted under more than one category. Source: U.S. Census Bureau, Census 2000.
**END POLICY # ____ **
KPFA Diversity Committee proposal
The LAB Diversity Committee has forwarded the resolutions below to the KPFA LAB for its review and possible endorsement at its meeting on Wednesday, February 12.
~ Ted Friedman
In its meeting of February 8, 2003, the Diversity Committee studied and discussed responses from Michael Harris of the San Francisco Lawyers Committee for Civil Rights and Ann Fagan Ginger of the Meiklejohn Civil Liberties Institute. Afterwards, the committee unanimously passed the following resolution:
"The top-ranking women candidates and candidates of racial, ethnic or cultural diversity for local station boards and for the national board will be seated as special measures for the sole purpose of securing adequate advancement of gender, racial, ethnic and cultural diversity to reflect the community, as long as this is necessary."
This language was recommended by the distinguished attorney Ann Fagan Ginger using language from The International Convention on the Elimination of All Forms of Racial Discrimination, Article I. Section 4.* The Convention was ratified by the U.S. on June 24.1994, U.N.T.S. no. 9464, Senate Advice & Consent: 140 Cong Rec.57634. (Available in "How to Use the 'New' Civil Rights Laws after 9-11", Meiklejohn Civil Liberties Institute, Berkeley, CA.)
Ms. Ginger believes that this language would be particularly resistant to successful legal challenge because it does not specify numerical quotas and because it relies on an international convention approved by the US Congress. Moreover, because it quotes the exact language used in the aforementioned treaty, she is confident it would garner strong support by US and international civil liberties bodies.
* Complete text, Article I, Section 4 of The International Convention on the Elimination of All Forms of Racial Discrimination:
"Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved."
REPORT FROM DIVERSITY COMMITTEE'S SUB COMMITTEE ON LEGAL OUTREACH.
Formed by the diversity committee to research civil rights lawyers opinions and alternative language to the Pacifica by-laws, diversity sections. To review the conclusions submitted by Mr. Finck to the iPNB related to the diversity sections of the by-laws. Members: Chait Diwadkar, Mary Berg, Steve Conley
Contacted by Steve Conley Mr. Michael Harris, Attorney at Law Assistant Director SF Lawyers Committee For Civil Rights San Francisco, California
Mr. Harris was supplied related material by Carol Spooner.
Given the limited time for review and lack of allocations of funds for a more through legal review, Mr. Harris has determined that the current diversity language as it relates to the quota of 50% women and 50% people of color would subject the foundation to possible liability based on California law.
He specifically referred to California governing code Sec #11135 Regulation F, which in part states that it is illegal to exclude a member from participating on a planning or advisory board. It is illegal to impose an adherence to a quota system. (See section for exact wording)
Also he made reference to suggestions related to the Unruh Act, which might be considered by some as a safe harbor in supporting quotas, but that act refers mostly to retail and/or transaction categories and is not or has not been tested in other areas such as boards. It still states that there are no strict caps allowed.
He also was critical of the Finck review, as he believes that Mr. Finck referenced wrong case law by referencing Grudder and Bakke cases since they don't apply since that would require a government intervention or state actor in the form of an equal protection concern.
RECOMMENDATION: In his opinion he recommends against using fixed quotas in our by-laws but supports the use of strongly worded language of "goals" instead.
From Larry Romsted - WBAI area
Try this one.
To promote Affirmative Action in Pacifica elections all people of color and women will receive bonus votes applied to the votes they receive after all ballots have been counted and the candidates ranked by the single transferable voting method.
For example, if there are 10 board seats, each winning candidate must receive about 10% of the vote to win. Ballots are cast and counted by STV. The candidates are ranked and the Affirmative Action criteria are applied. Each person of color and woman candidate receives, for example, the equivalent of 1% additional votes based on the total number of votes.
This means that white male candidates who are on border line, i.e., just above 10% of the total votes needed to win, could lose out to women and people of color who have fewer votes than they do, but not too many fewer votes (actually within 10% of the 10% each candidate needs to receive to win). Of course women and people of color who win more than 10% do not need the bonus. Also a woman or person of color who did not receive many votes could not be seated.
This might be quite effective when combined with strong Candidate Search Committees.
That is the concept. The percentage of extra votes is obviously arbitrary and debatable. I do not think this approached can be labeled a quota. However, it is sort of like the current U. Michigan's Affirmative Action policy. That could be a weakness if they lose at the Supreme Court level.
So? What do you all think?
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