Supreme Court Ruling Could Hamper FCC Diversity Efforts, Diversity Committee Members Say
Undecided Supreme Court case Fisher v. University of Texas could limit FCC efforts to encourage diversity in broadcasting, said a presentation to the commission’s Diversity Committee Thursday. Akin Gump lawyer Ruthanne Deutsch said she and others who follow the Supreme Court believe the court will hand down a decision striking down the University of Texas program that factors race into admissions, which she said would leave “a very very tiny tiny window” for government programs considering race. Minority Media and Telecommunications Counsel Executive Director David Honig said diversity in media law “flows from” education diversity law, and that such a decision “could affect a great deal” of what the commission might do to encourage diversity in the communications industry.
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Deutsch said she believes the court will further narrow the rules on race, based on the way the members of the court have ruled in several previous cases related to affirmative action. She said they have generally ruled against any program that has quantified goals based on race. “The court is as hostile as it’s ever been to affirmative action,” said Deutsch. Fisher v. University of Texas was one of several cases heard by the court in October, but the only one of those that hasn’t been decided. “That means something’s cooking,” Deutsch said. Though the case is being decided by eight judges instead of the usual nine because Justice Elena Kagan has recused herself, Deutsch said if the court were splitting evenly on the matter, it would have happened by now.
Honig, who filed an amicus brief with Deutsch in the case on behalf of the MMTC, said a decision against the University of Texas could affect the commission’s work in several ways. He said a decision that lowers the amount of diversity in education will indirectly affect the media, because “diversity of higher education promotes diversity in media, which is a predicate for insuring exchange of ideas.” Honig said it was possible the court could issue a narrow decision specific to education, which might not directly impact any programs the FCC creates to encourage diversity, but would likely invite a future Supreme Court case addressing diversity in media. He said the most negative outcome for the Diversity Committee would be a ruling that struck down the concept of government’s “compelling interest in diversity,” which was established in previous affirmative action cases. Deutsch said that would make it especially hard to justify any federal program that considers race.
Deutsch said if the court did rule against the University of Texas, the FCC might still have ways to encourage diversity using “race neutral” measures that target income and other “non-constitutionally suspect” factors. She said that, in the face of uncertainty about the decision, there was still value in gathering evidence of discrimination or inadequately served minority populations. Honig said even if the court struck down race-based programs, he believed the commission should still conduct new studies of minority ownership under the Adarand threshold of a previous Supreme Court decision, and that the data would still be important even without a legal test to satisfy. Diversity Committee Chairman Henry Rivera, a Wiley Rein communications lawyer and former FCC member, said a special meeting of the Diversity Committee would be called when a decision on Fisher v. University of Texas is issued. He said the meeting will focus on the impact of the case on the committee’s work.