The Supreme Court/The Supreme Court.iso/pc/ascii/1989/89_453/89_453.d2

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Subject: 89-453 & 89-700--DISSENT, METRO BROADCASTING, INC. v. FCC




    SUPREME COURT OF THE UNITED STATES


Nos. 89-453 and 89-700


METRO BROADCASTING, INC., PETITIONER
v.
89-453
FEDERAL COMMUNICATIONS COMMISSION et al.

ASTROLINE COMMUNICATIONS COMPANY
LIMITED PARTNERSHIP, PETITIONER
v.
89-700
SHURBERG BROADCASTING OF HARTFORD,
INC., et al.


on writs of certiorari to the united states court of appeals for the
district of columbia circuit

[June 27, 1990]



    Justice Kennedy, with whom Justice Scalia joins, dissenting.

    Almost 100 years ago in Plessy v. Ferguson, 163 U. S. 537 (1896), this
Court upheld a government-sponsored race- conscious measure, a Louisiana
law that required "equal but separate accommodations" for "white" and
"colored" railroad passengers.  The Court asked whether the measures were
"reasonable," and it stated that "[i]n determining the question of
reasonableness, [the legislature] is at liberty to act with reference to
the established usages, customs and traditions of the people, and with a
view to the promotion of their comfort."  Id., at 550.  The Plessy Court
concluded that the "race-conscious measures" it reviewed were reasonable
because they served the governmental interest of increasing the riding
pleasure of railroad passengers.  The fundamental errors in Plessy, its
standard of review and its validation of rank racial insult by the State,
distorted the law for six decades before the Court announced its apparent
demise in Brown v. Board of Education, 347 U. S. 483 (1954).  Plessy's
standard of review and its explication have disturbing parallels to today's
majority opinion that should warn us something is amiss here.
    Today the Court grants Congress latitude to employ "benign
race-conscious measures . . . [that] are not . . . designed to compensate
victims of past governmental or societal discrimination," but that "serve
important governmental objectives . . . and are substantially related to
achievement of those objectives."  Ante, at 13.  The interest the Court
accepts to uphold the Commission's race-conscious measures is "broadcast
diversity."  Furthering that interest, we are told, is worth the cost of
discriminating among citizens on the basis of race because it will increase
the listening pleasure of media audiences.  In upholding this preference,
the majority exhumes Plessy's deferential approach to racial
classifications.  The Court abandons even the broad societal remedial
justification for racial preferences once advocated by Justice Marshall, e.
g., Regents of University of California v. Bakke, 438 U. S. 265, 396 (1978)
(opinion of Marshall, J.), and now will allow the use of racial
classifications by Congress untied to any goal of addressing the effects of
past race discrimination.  All that need be shown under the new approach,
which until now only Justice Stevens had advanced, City of Richmond v. J.
A. Croson Co., 488 U. S. 469, ---- (Stevens, J., concurring in part and
concurring in judgment); Wygant v. Jackson Board of Education, 476 U. S.
267, 313 (1986) (Stevens, J., dissenting), is that the future effect of
discriminating among citizens on the basis of race will advance some
"important" governmental interest.
    Once the Government takes the step, which itself should be forbidden,
of enacting into law the stereotypical assumption that the race of owners
is linked to broadcast content, it follows a path that becomes ever more
tortuous.  It must decide which races to favor.  While the Court repeatedly
refers to the preferences as favoring "minorities," ante, at 3, and
purports to evaluate the burdens imposed on "nonminor ities," ante, at 45,
it must be emphasized that the discriminatory policies upheld today operate
to exclude the many racial and ethnic minorities that have not made the
Commission's list.  The enumeration of the races to be protected is
borrowed from a remedial statute, but since the remedial rationale must be
disavowed in order to sustain the policy, the race classifications bear
scant relation to the asserted governmental interest.  The Court's
reasoning provides little justification for welcoming the return of racial
classifications to our Nation's laws. {1}
    I cannot agree with the Court that the Constitution permits the
Government to discriminate among its citizens on the basis of race in order
to serve interests so trivial as "broadcast diversity."  In abandoning
strict scrutiny to endorse this interest the Court turns back the clock on
the level of scrutiny applicable to federal race-conscious measures.  Even
strict scrutiny may not have sufficed to invalidate early race based laws
of most doubtful validity, as we learned in Korematsu v. United States, 323
U. S. 214 (1944).  But the relaxed standard of review embraced today would
validate that case, and any number of future racial classifications the
Government may find useful.  Strict scrutiny is the surest test the Court
has yet devised for holding true to the constitutional command of racial
equality.  Under our modern precedents, as Justice O'Connor explains,
strict scrutiny must be applied to this statute.  The approach taken to
congressional measures under MDRV 5 of the Fourteenth Amendment in
Fullilove v. Klutznick, 448 U. S. 448 (1980), even assuming its validity,
see Croson, supra, at ---- (opinion of Kennedy, J.), is not applicable to
this case.
    As to other exercises of congressional power, our cases following
Bolling v. Sharpe, 347 U. S. 497 (1954), such as Weinberger v. Wiesenfeld,
420 U. S. 636, 638, n. 2 (1975), until they were in effect overruled today,
had held that the Congress is constrained in its actions by the same
standard applicable to the States: strict scrutiny of all racial
classifications.  The majority cannot achieve its goal of upholding the
quotas here under the rigor of this standard, and so must devise an
intermediate test.  Justice O'Connor demonstrates that this statute could
not survive even intermediate scrutiny as it had been understood until
today.  The majority simply says otherwise, providing little reasoning or
real attention to past cases in its opinion of 50 pages.
    The Court insists that the programs under review are "benign."  Justice
Stevens agrees.  "[T]he reason for the classification--the recognized
interest in broadcast diversity--is clearly identified and does not imply
any judgment concerning the abilities of owners of different races or the
merits of different kinds of programming.  Neither the favored nor the
disfavored class is stigmatized in any way."  Ante, at 2 (Stevens, J.,
concurring). {2}  A fundamental error of the Plessy Court was its similar
confidence in its ability to identify "benign" discrimination: "We consider
the underlying fallacy of the plaintiff's argument to consist in the
assumption that the enforced separation of the two races stamps the colored
race with a badge of inferiority.  If this be so, it is not by reason of
anything found in the act, but solely because the colored race chooses to
put that construction upon it."  163 U. S., at 551.  Although the majority
is "confident" that it can determine when racial discrimination is benign,
ante, at 13, n. 12, it offers no explanation as to how it will do so.
    The Court also justifies its result on the ground that "Congress and
the Commission have determined that there may be important differences
between the broadcasting practices of minority owners and those of their
nonminority counterparts."  Ante, at 29.  The Court is all too correct that
the the type of reasoning employed by the Commission and Congress is not
novel.  Policies of racial separation and preference are almost always
justified as benign, even when it is clear to any sensible observer that
they are not.  The following statement, for example, would fit well among
those offered to uphold the Commission's racial preference policy: "The
policy is not based on any concept of superiority or inferiority, but
merely on the fact that people differ, par ticularly in their group
associations, loyalties, cultures, outlook, modes of life and standards of
development."  See South Africa and the Rule of Law 37 (1968) (official
publication of the South African Government).
    The history of governmental reliance on race demonstrates that racial
policies defended as benign often are not seen that way by the individuals
affected by them.  Today's dismissive statements aside, a plan of the type
sustained here may impose "stigma on its supposed beneficiaries," Croson,
488 U. S., at 516-517 (opinion of Stevens, J.), and "foster intolerance and
antagonism against the entire membership of the favored classes,"
Fullilove, 448 U. S., at 547 (Stevens, J., dissenting).  Although the
majority disclaims it, the FCC policy seems based on the demeaning notion
that members of the defined racial groups ascribe to certain "minority
views" that must be different from those of other citizens.  Special
preferences also can foster the view that members of the favored groups are
inherently less able to compete on their own.  And, rightly or wrongly,
special preference programs often are perceived as targets for exploitation
by opportunists who seek to take advantage of monetary rewards without
advancing the stated policy of minority inclusion. {3}
    The perceptions of the excluded class must also be weighed, with
attention to the cardinal rule that our Constitution protects each citizen
as an individual, not as a member of a group.  There is the danger that the
"stereotypical thinking" that prompts policies such as the FCC rules here
"stigmatizes the disadvantaged class with the unproven charge of past
racial discrimination."  Croson, 488 U. S., at 516 (opinion of Stevens,
J.).  Whether or not such programs can be described as "remedial," the
message conveyed is that it is acceptable to harm a member of the group
excluded from the benefit or privilege.  If this is to be considered
acceptable under the Constitution, there are various possible explanations.
One is that the group disadvantaged by the preference should feel no stigma
at all, because racial preferences address not the evil of intentional
discrimination but the continuing unconscious use of stereotypes that
disadvantage minority groups.  But this is not a proposition that the many
citizens, who to their knowledge "have never discriminated against anyone
on the basis of race," ibid., will find easy to accept.
    Another explanation might be that the stigma imposed upon the excluded
class should be overlooked, either because past wrongs are so grievous that
the disfavored class must bear collective blame, or because individual
harms are simply irrelevant in the face of efforts to compensate for racial
inequalities.  But these are not premises that the Court even appears
willing to address in its analysis.  Until the Court is candid about the
existence of stigma imposed by racial preferences on both affected classes,
candid about the "animosity and discontent" they create, Fullilove, 448 U.
S., at 532-533 (Stevens, J., dissenting), and open about defending a theory
that explains why the cost of this stigma is worth bearing and why it can
consist with the Constitution, no basis can be shown for today's casual
abandonment of strict scrutiny.
    Though the racial composition of this Nation is far more diverse than
the first Justice Harlan foresaw, his warning in dissent is now all the
more apposite: "The destinies of the two races, in this country, are
indissolubly linked together, and the interests of both require that the
common government of all shall not permit the seeds of race hate to be
planted under the sanction of law."  Plessy, 163 U. S., at 560 (dissenting
opinion).  Perhaps the Court can succeed in its assumed role of
case-by-case arbiter of when it is desirable and benign for the Government
to disfavor some citizens and favor others based on the color of their
skin.  Perhaps the tolerance and decency to which our people aspire will
let the disfavored rise above hostility and the favored escape
condescension.  But history suggests much peril in this enterprise, and so
the Constitution forbids us to undertake it.  I regret that after a century
of judicial opinions we interpret the Constitution to do no more than move
us from "separate but equal" to "unequal but benign."







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1
    The Court fails to address the difficulties, both practical and
constitutional, with the task of defining members of racial groups that its
decision will require.  The Commission, for example, has found it necessary
to trace an applicant's family history to 1492 to conclude that the
applicant was "Hispanic" for purposes of a minority tax certificate policy.
See Storer Broadcasting Co., 87 F. C. C. 2d 190 (1981).  I agree that "the
very attempt to define with precision a beneficiary's qualifying racial
characteristics is repugnant to our constitutional ideals."  Fullilove v.
Klutznick, 448 U. S. 448, 534, n. 5 (1980) (Stevens, J., dissenting); see
id., at 531-532 (Stewart, J., dissenting).  "If the National Government is
to make a serious effort to define racial classes by criteria that can be
administered objectively, it must study precedents such as the First
Regulation to the Reichs Citizenship Law of November 14, 1935, translated
in 4 Nazi Conspiracy and Aggression, Document No. 1417-PS, pp. 8-9 (1946)."
Id., at 534, n. 5.  Other examples are available.  See Population
Registration Act No. 30 of 1950, Statutes of the Republic of South Africa
71 (1985).

2
    Justice Stevens' assertion that the FCC policy "does not imply any
judgment concerning . . . the merits of different kinds of programming,"
ante, at 2, is curious.  If this policy, which is explicitly aimed at the
ultimate goal of altering programming content, does not "imply any judgment
concerning . . . the merits of different kinds of programming," then it is
difficult to see how the FCC's policy serves any governmental interest, let
alone substantially furthers an important one.

3
    The record in one of these two cases indicates that Astroline
Communications Company, the beneficiary of the distress sale policy in this
case, had a total capitalization of approximately $24,000,000.  Its sole
minority principal was a Hispanic-American who held 21% of Astroline's
overall equity and 71% of its voting equity.  His total cash contribution
was $210.  See App. in No. 89-700, pp 68-69.