Document ID: A:\METRO.TXT METRO BROADCASTING, INC. v. FEDERAL COMMUNICATIONS COMMISSION ET AL. No. 89-453 SUPREME COURT OF THE UNITED STATES 497 U.S. 547; 110 S. Ct. 2997; 1990 U.S. LEXIS 3459; 111 L. Ed. 2d 445; 58 U.S.L.W. 5053; 53 Fair Empl. Prac. Cas. (BNA) 161; 53 Empl. Prac. Dec. (CCH) P40,037; 67 Rad. Reg. 2d (P & F) 1353 March 28, 1990, Argued June 27, 1990 *, Decided * Together with No. 89-700, Astroline Communications Company Limited Partnership v. Shurberg Broadcasting of Hartford, Inc., et al., also on certiorari to the same court. PRIOR HISTORY: [***1] CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. DISPOSITION: No. 89-453, 277 U.S. App. D. C. 134, 873 F. 2d 347, affirmed and remanded; No SYLLABUS: These cases consider the constitutionality of two minority preference policies a together with all other relevant factors, in comparing mutually exclusive applications fo ations to hold a license have come into question to transfer that license before the FCC r in an attempt to satisfy its obligation under the Communications Act of 1934 to promote di ufficient broadcast diversity, and that this situation was detrimental not only to the min rder awarding a new television license to Rainbow Broadcasting in a comparative proceeding rt remanded the appeal for further consideration in light of the FCC's separate, ongoing D islation for fiscal year 1988, which prohibited the FCC from spending any appropriated fun ppeals affirmed. Shurberg Broadcasting of Hartford, Inc., one [***3] of the respondent ions Company Limited Partnership, a minority enterprise. Disposition of the appeal was de e to Astroline. The court then invalidated the distress sale policy, ruling that it depri Held: The FCC policies do not violate equal protection, since they bear the imprimatur Pp. 563-601. (a) It is of overriding significance in these cases that the minority ownership program ve v. Klutznick, 448 U.S. 448, 472-478, 490, 491 [***4] (opinion of Burger, C.J.); id., 474 (opinion of Burger, C. J.); id., at 519 (MARSHALL, J., concurring in judgment). Beni l or societal discrimination -- are constitutionally permissible to the extent that they s o., 488 U.S. 469, distinguished and reconciled. Pp. 563-566. (b) The minority ownership policies serve an important governmental objective. Congres primarily to promote [***5] broadcast diversity. This Court has long recognized as axi m diverse and antagonistic sources is essential to the public welfare. Associated Press v of the FCC's mission, serves important First Amendment values, and is, at the very least, (c) The minority ownership policies are substantially related to the achievement of the is consistent with its longstanding view that ownership is a prime determinant of the rang irtue of a long history of support for minority participation in the broadcasting industry ination of the FCC and Congress. Pp. 569-579. (d) The judgment that there is a link between expanded minority ownership and broadcast minority-oriented programming or to the expression of a discrete "minority viewpoint" on t ppeal to nonminorities. Rather, they maintain simply that expanded minority ownership of b er's minority status influences the selection of topics for news coverage and the presenta re presented. In addition, studies show that a minority owner is more likely to employ mi stereotyped reaction based on habit. Cf. Fullilove, supra, at 534, n. 4 (STEVENS, J., diss he basis of a fair cross section, and the reapportionment of electoral districts to preser (e) The minority ownership policies are in other relevant respects substantially relate n of all available alternatives, and the emergence of evidence demonstrating that race-neu ough evaluations in 1960, 1971, and 1978 before adopting them. Furthermore, the considere nces -- e. g., setasides of certain frequencies for minority broadcasters. In addition, t minority status in the comparative licensing proceeding in order to compensate for a deart ice of existing stations and the problem of lack of information regarding license availabi o reassessment and reevaluation before renewal, since Congress has manifested its support r administrative and judicial review also guarantee that the policies are applied correctl d of a preference contravenes no legitimate, firmly rooted expectation of competing applic of public interest factors. Nor does the distress sale policy impose an undue burden on than risk a hearing, and only when no competing application has been filed. It is not a q COUNSEL: Gregory H. Guillot argued the cause for petitioner [***10] in No. 89-453. Wit hi. Daniel M. Armstrong argued the cause for the federal respondent in No. 89-453. With hi Renouf. Harry F. Cole argued the cause for respondents in No. 89-700 and filed a brief fo ission, as respondent under this Court's Rule 12.4, in support of petitioner in No. 89-700 + Briefs of amici curiae urging reversal in No. 89-453 were filed for the United States l R. Lazerwitz; for Associated General Contractors of America, Inc., by Charles J. Cooper, ndley; for the Pacific Legal Foundation by Ronald A. Zumbrun, Anthony T. Caso, and Sharon ouis C. Stephens filed a brief for the Committee to Promote Diversity as amicus curiae urg Brief of amici curie urging affirmance in No. 89-453 and reversal in No. 89-700 were fi nig, Squire Padgett, and George W. Jones, Jr. ; for the National Association of Black Owne Briefs of Amici curiae urging affirmance in No. 89-453 were filed for the United States Elliot Mincberg; for Capital Cities/ABC, Inc., by J. Roger Wollenberg, Carl Willner, and J. Evans; for the Lawyers' Committee for Civil Rights Under Law by John Payton, Mark S. H ald L. Ellis, Eric Schnapper, Clyde E. Murphy, and Nolan A. Bowie; and for the National Le Briefs of amici curiae urging affirmance in No. 89-700 were filed for the United States l R. Lazerwitz; for the Pacific Legal Foundation by Ronald A. Zumbrun, Anthony T. Caso, an Briefs of amici curiae in No. 89-453 were filed for American Women in Radio and Televis JUDGES: BRENNAN, J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMU and KENNEDY, JJ., joined, post, p. 602. KENNEDY, J., filed a dissenting opinion, in whic OPINIONBY: BRENNAN OPINION: [*552] [**3002] JUSTICE BRENNAN delivered the opinion of theCourt. The issue in these cases, consolidated for decision today, is whether certain minority am awarding an enhancement for minority ownership in comparative proceedings for new licen ority-controlled firms. We hold that these policies do not violate equal protection princ I A The policies before us today can best be understood by reference to the history of fede mended, Congress assigned to the Federal Communications Commission (FCC or Commission) exc t stations in the United States. See 47 U. S. C. @@ 151, 301, 303, 307, 309 (1982 ed.). groups have held broadcast licenses. In 1971, minorities owned only 10 of the approximat 9, 937, n. 28 (1973), cert. denied, 419 U.S. 986 (1974); see also 1 U.S. Commission on Civ evision stations, see FCC Minority Ownership Task Force, Report on Minority Ownership in B ates. See National Association of Broadcasters, Minority Broadcasting Facts 6 (Sept. 1986 554] broadcasters serve geographically limited markets with relatively small audiences. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 The FCC has defined the term "minority" to include "those of Black, Hispanic Surname , 980, n. 8 (1978). See also Commission Policy Regarding Advancement of Minority Ownership n2 See Task Force Report 1; Wimmer, Deregulation and Market Failure in Minority Program - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The Commission has recognized that the viewing and listening public suffers when minori "Acute underrepresentation of minorities among the owners of broadcast properties is troub couraged to enter the mainstream of the commercial broadcasting business, a substantial po The Commission has therefore worked to encourage minority participation in the broadcast i sting is an important mass media form which, because it makes use of the airwaves belongin license." Nondiscrimination Employment Practices of Broadcast Licensees, 13 F. C. C. 2d 7 ions Act of 1934 to promote diversity of programming. See NAACP v. FPC, 425 U.S. 662, 670 ibute significantly toward reducing and ending discrimination in other industries'" becaus - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n3 See, e. g., Nondiscrimination Employment Practices of Broadcast Licensees, 18 F. C. Broadcast Licensees, 54 F. C. C. 2d 354 (1975); Nondiscrimination in Employment Policies - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***16] Initially, the FCC did not consider minority status as a factor in licensing decisions, at the owner's race likely would affect the content of the station's broadcast service to rt of Appeals for the District of Columbia Circuit, however, rejected the Commission's pos TV 9, Inc., supra, at 358, 495 F. 2d, at 938. "'Reasonable expectation,'" the court held, 063 (1975). [***17] In April 1977, the FCC conducted a conference on minority ownership policies, at which he results of the conference, the recommendations of the task force, the decisions of the 978 by the Office of Telecommunications Policy (then part of the Executive Office of the P . After recounting its past efforts to expand broadcast diversity, the FCC concluded: "[W]e are compelled to observe that the views of racial minorities continue to be inadequa epresentation of minority viewpoints in programming serves not [***18] only the needs not only of the Communications Act of 1934 but also of the First Amendment." Id., at 980-9 Describing its actions as only "first steps," id., at 984, the FCC outlined two elements o - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n4 See Telecommunications Minority Assistance Program, Public Papers of the Presidents, sustained and increased sensitivity to minority audiences." Id., at 252. See also n. 45, - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - First, the Commission pledged to consider minority ownership as one factor in comparati 57] looks principally at six factors: diversification of control of mass media communica broadcast record, efficient use of the frequency, and the character of the applicants. , 338-339, 735 F. 2d 601, 604-607 (1984), cert. denied, 470 U.S. 1027 (1985). In the Polic to be weighed together with all other relevant factors. See WPIX, Inc., 68 F. C. C. 2d 3 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n5 In Ashbacker Radio Corp. v. FCC, 326 U.S. 327 (1945), we held that when the Commissi obligated to set the applications for a comparative hearing. See id., at 333. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***20] Second, the FCC outlined a plan to increase minority opportunities to receive reassigne oadcast license come into question may not assign or transfer that license until the FCC h ted for a revocation hearing, or whose renewal application has been designated for hearing C. C. 2d 849, 851 (1982). The assignee must meet the FCC's basic qualifications, and the m and the price must not exceed 75 percent of fair market value. These two Commission minor - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n6 In 1982, the FCC determined that a limited partnership could qualify as a minority e fairs." 92 F. C. C. 2d, at 855. n7 The FCC also announced in its 1978 statement a tax certificate policy and other mino icy, see Gainesville Media, Inc., 70 F. C. C. 2d 143, 149 (Rev. Bd. 1978); Mid-Florida Tel tions, Inc. v. FCC, 277 U.S. App. D. C. 134, 139-140, n. 5, 873 F. 2d 347, 352-353, n. 5 ( - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***22] B 1 In No. 89-453, petitioner Metro Broadcasting, Inc. (Metro), challenges the Commission's nvolved in a comparative proceeding to select among three mutually exclusive proposals to ed Metro's application. Metro Broadcasting, Inc., 96 F. C. C. 2d 1073 (1983). The ALJ dis view Board disagreed with the ALJ's finding regarding Rainbow's candor and concluded that etro's. In so doing, the Review Board awarded Rainbow a substantial enhancement [***23] oard found that Rainbow's minority credit outweighed Metro's local residence and civic par th the Board's resolution of this case." No. 85-558 (Oct. 18, 1985), p. 2, App. to Pet. fo Metro sought review of the Commission's order in the United States Court of Appeals for eration in light of a separate ongoing inquiry at the Commission regarding the validity of . Rcd 1315 (1986) (Docket 86-484). n8 The Commission determined that the outcome in the l olicies, and accordingly it held the licensing proceeding in abeyance pending further deve - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n8 That inquiry grew out of the Court of Appeals' decision in Steele v. FCC, 248 U.S. A e license proceedings to women owners. Although the panel expressly stated that "[u]nder inion nevertheless raised questions concerning its minority ownership policies. After the o allow the FCC to reconsider the basis of its preference policy. The request was granted casting of Hartford, Inc. v. FCC, 278 U.S. App. D. C. 24, 81, 876 F. 2d 902, 959 (1989) (W - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***25] Prior to the Commission's completion of its Docket 86-484 inquiry, however, Congress en d funds to examine or change its minority ownership policies. n9 Complying with this direc reaffirmed its grant of the license in this case to Rainbow Broadcasting. See Metro Broa - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n9 The appropriations legislation provided: "That none of the funds appropriated by this Act shall be used to repeal, to retroactively tax certificates granted under 26 U. S. C. @ 1071, to expand minority and women ownership 91, as amended, 52 R. R. 2d [1301] (1982) and Mid-Florida Television Corp., [69] F. C. C. of suspension of any sales, licenses, applications, or proceedings, which were suspended p - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***26] The case returned to the Court of Appeals, and a divided panel affirmed the Commission' supported by "'highly relevant congressional action that showed clear recognition of the e .S. App. D. C. 134, 140, 873 F. 2d 347, 353 (1989), quoting West Michigan, 236 U.S. App. D 2 The dispute in No. 89-700 emerged from a series of attempts by Faith Center, Inc., the ication for renewal of its license. See Faith Center, Inc., FCC 80-680 (Dec. [***27] . The Commission granted the request, see Faith Center, Inc., 88 F. C. C. 2d 788 (1981), d request by Faith Center to pursue a distress sale to another minority-controlled buyer. io Reg. 2d (P&F) 1286, 1287-1288 (1983); Faith Center, Inc., 55 Radio Reg. 2d (P&F) 41, 44 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n10 Mr. Shurberg is the sole owner of Shurberg Broadcasting of Hartford, Inc., responde - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***28] In December 1983, respondent Shurberg Broadcasting of Hartford, Inc. (Shurberg), applie then still pending. In June 1984, Faith Center again sought the FCC's approval for a dist sale to Astroline on a number of grounds, including that the FCC's distress sale program amine the application Shurberg had tendered alongside Faith Center's renewal request. In Center, Inc., 99 F. C. C. 2d 1164 (1984). The FCC rejected Shurberg's equal protection cha Shurberg appealed the Commission's order to the United States Court of Appeals for the cies. See supra, at 559. After Congress enacted and the President signed into law the ap er's request to assign its Hartford license to Astroline pursuant to the minority distress A divided Court of Appeals invalidated the Commission's minority distress sale policy. nstitutionally deprives Alan Shurberg and Shurberg Broadcasting of their equal protection ing diversity" and that "the program unduly burdens Shurberg, an innocent nonminority, and nc were denied, and we granted certiorari. 493 U.S. 1018 (1990). II It is of overriding significance in these cases that the FCC's minority ownership progr d two other Justices, observed that although "[a] program that employs racial or ethnic cr f Congress, we are "bound to approach our task with appropriate deference to the Congress, iate legislation,' the equal protection guarantees of the Fourteenth Amendment." Id., at 4 nce was appropriate in light of Congress' institutional competence as the National Legisla pinion of Burger, C. J.); id., at 499 (Powell, J., concurring), the Spending Clause, see i rring). n11 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - n11 JUSTICE O'CONNOR's suggestion that the deference to Congress described in Fullilove g the provision at issue, "Congress employed an amalgam of its specifically delegated powe - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***32] [*564] A majority of the Court in Fullilove did not apply strict scrutiny to the race f racial and ethnic criteria . . . is a constitutionally permissible means for achieving t t "serve important governmental objectives and are substantially related to achievement of ss n12 -- even if those [*565] measures are not "remedial" in the sense of being desi overnmental objectives within the power of Congress and are substantially related to achie - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n12 We fail to understand how JUSTICE KENNEDY can pretend that examples of "benign" rac n citizens of Japanese ancestry upheld in Korematsu v. United States, 323 U.S. 214 (1944). asures from other types of racial classifications. See, e. g., Mississippi Univ. for Wome uiry into the actual purposes underlying a statutory scheme." Weinberger, supra, at 648; s , 128-129. The concept of benign race-conscious measures -- even those with at least some d other assistance to Afro-Americans. See, e. g., Cong. Globe, 39th Cong., 1st Sess., 630 ld lands, in the increased wealth which industry brings and in the restoration of law and 653, 664-666 (1975); Schnapper, Affirmative Action and the Legislative History of the Four - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***34] Our decision last Term in Richmond v. J. A. Croson Co., 488 U.S. 469 (1989), concerning s. As JUSTICE KENNEDY noted, the question of congressional action was not before the Cour nguage and reasoning in Croson reaffirmed the lesson of Fullilove that raceconscious class l governments. For example, JUSTICE O'CONNOR, joined by two other Members of this Court, scrimination to engage in race-conscious relief." Id., at 489. [***35] n13 Echoing Full governmental theory," the Federal Government is unlikely to be captured by minority raci or racial justice has historically been a struggle by the national society against oppress 3. n14 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n13 JUSTICE O'CONNOR, in a passage joined by THE CHIEF JUSTICE and JUSTICE WHITE, obser mitted; emphasis in original). JUSTICE O'CONNOR's opinion acknowledged that our decision n14 See also id., at 495-496 (opinion of O'CONNOR, J.); Ely, The Constitutionality of R - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - We hold that the FCC minority ownership policies pass muster under the test we announce achievement of that objective. A Congress found that "the effects of past inequities stemming from racial and ethnic [ 97-765, p. 43 (1982). Congress and the Commission do not justify the minority ownership p omote programming diversity, and they urge that such diversity [***37] is an important We have long recognized that "[b]ecause of the scarcity of [electromagnetic] frequencie ting Co. v. FCC, 395 U.S. 367, 390 (1969). The Government's role in distributing the limit tic that broadcasting may be regulated in light of the rights of the viewing and listening ss v. United States, 326 U.S. 1, 20 (1945). Safeguarding the public's right to receive a d " standard necessarily invites reference to First Amendment principles,'" FCC v. National and that the Communications Act of 1934 has designated broadcasters as "fiduciaries for th of broadcast] and their collective right to have the medium function consistently with the pra, at 390. "Congress may . . . seek to assure that the public receives through this medi ds of those [***39] who own and operate broadcasting stations." League of Women Voters, Against this background, we conclude that the interest in enhancing broadcast diversity a "diverse student body" contributing to a "'robust exchange of ideas'" is a "constitutio 3 (1978) (opinion of Powell, J.), the diversity of views and information on the airwaves s iversity are not limited [**3011] to the members of minority groups who gain access to , "the American [***40] public will benefit by having access to a wider diversity of in f the Senate Committee on Commerce, Science, and Transportation, 101st Cong., 1st Sess., 6 cast audience, regardless of its racial composition, will benefit"). - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n15 In Wygant v. Jackson Board of Education, JUSTICE O'CONNOR noted that, "although its ucation, to support the use of racial considerations in furthering that interest." 476 U.S that the Court will find other governmental interests which have been relied upon in the l at 612 (O'CONNOR, J., dissenting). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***41] [*569] B We also find that the minority ownership policies are substantially related to the achi both the FCC and Congress have determined that such a relationship exists. Although we do e that the Commission has not fulfilled its task with appropriate sensitivity" to equal pr ssion and the factfinding of Congress when analyzing the nexus between minority ownership rience of the Commission." Id., at 102. 1 The FCC has determined that increased minority [***42] participation in broadcasting t facilities by minorities is [a] significant way of fostering the inclusion of minority v rogramming." 68 F. C. C. 2d, at 981. Four years later, the FCC explained that it had taken n the selection of available programming, benefitting the public and serving the principle 85) ("'[T]here is a critical underrepresentation of minorities in broadcast ownership, and y and diversification of ownership'") (citation omitted). The FCC's conclusion that there [**3012] Furthermore, the FCC's reasoning with respect to the minority ownership poli n that diversification of ownership will broaden the range of programming available to the orically has proved to be significantly influential with respect to editorial comment and e that the needs of the audience are met. Indeed, one of the [***44] FCC's elementary factors as integration of ownership and management, local residence, and civic participat "[B]oth local residence and minority ownership are fundamental considerations in our licen award enhancement credit for local residence because . . . [i]t is expected that [an] inc comparative proceeding [because] 'minority ownership is likely to increase diversity of c - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n16 For example, in 1953, the Commission promulgated the first of its multiple ownershi dment of Sections 3.35, 3.240, and 3.636 of Rules and Regulations Relating to Multiple Own of broadcast stations. The Commission's current rules include limitations on broadcast/ne 1 (1989). The Commission has always focused on ownership, on the theory that "ownership c oncern with the public interest." Amendment of Sections 73.34, 73.240, and 73.636 of Commi Amendment of Sections 73.35, 73.240, and 73.636 of Commission Rules Relating to Multiple O ion of programming sources and viewpoints"); Amendment of Sections 73.35, 73.240, and 73.6 ]he greater the diversity of ownership in a particular area, the less chance there is that ees, 13 F. C. C. 1246, 1252 (1949) (ownership enables licensee "to insure that his persona - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***45] [*572] 2 Congress also has made clear its view that the minority ownership policies advance the hip policies without alteration. See n. 9, supra. We would be remiss, however, if we igno istently recognized the barriers encountered by minorities in entering the broadcast indus lysis to the immediate legislative history of the appropriations Acts in question "would e ribute [of Congress] as a legislative body lies in its broader mission to investigate and cquires in the consideration and enactment of earlier legislation. After Congress has leg nsiders action in that area." Id., at 502-503; see also id., at 478 (opinion of Burger, C. Congress' experience began in 1969, when it considered a bill that would have eliminate nown" and to restore order and predictability to the renewal process to "give the current timony that, because [***47] the most valuable broadcast licenses were assigned many ye Opponents warned that the bill would "exclude minority groups from station ownership in i - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n17 See Amend the Communications Act of 1934: Hearings on S. 2004 before the Subcommitt dcasting); id., pt. 2, at 520-521 (testimony of John Pamberton, American Civil Liberties U n18 Id., at 642 (testimony of John McLaughlin, then associate editor of America magazin - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***48] Congress confronted the issue again in 1973 and 1974, when congressional subcommittees ls. Witnesses reiterated that renewals provided a valuable opportunity for minorities to - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n19 See Broadcast License Renewal: Hearings on H. R. 5546 et al. before the Subcommitte ks, Pittsburgh Community Coalition for Media Change); id., at 552-559 (testimony of Rev. G .); id., pt. 2, at 686-689 (testimony of Morton Hamburg, adjunct assistant professor of co Commerce, 93d Cong., 2d Sess., pt. 1, pp. 325-329 (1974) (testimony of Ronald H. Brown, Na nference on Civil Rights and Americans for Democratic Action); id., pt. 2, at 785-800 (tes - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***49] [*574] During 1978, both the FCC and the Office of Telecommunications Policy present r things, replaced comparative hearings with a lottery and created a fund for minorities w ties in this country to get into the communications systems in this country so that their Committee on Interstate and Foreign Commerce, 95th Cong., 2d Sess., vol. 5, pt. 1, p. 59 ective way to reach the inadequacies of the broadcast industry in employment and programmi The Executive Branch objected to the lottery proposal on the ground that it would harm could be structured to alleviate that concern by attributing a weight to minority ownershi ned way of achieving the Communication Act's goal of broadcast diversity. See ibid. (cont Although no lottery legislation was enacted that year, Congress continued to explore th onciliation Act of 1981, Pub. L. 97-35, 95 Stat. 357, 736-737. The Act provided that wher plicant "through the use of a system of random selection," 47 U. S. C. @ 309(i)(1) (1982 e cilities. @ 309(i)(3)(A). The accompanying Conference Report announced Congress' "firm i s owned by such persons or groups [would] be met." H. R. Conf. Rep. No. 97-208, p. 897 (19 d lottery statute reaffirming its intention in unmistakable terms. Section 115 of the Com ducted by the FCC, a preference [***52] is to be granted to every applicant whose recei ations, an additional significant preference [is to be given] to any applicant controlled Commission and the courts," Congress explained that it sought "to promote the diversificat 40 (1982). With this new mandate from Congress, the Commission adopted rules to govern th - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n20 For example, the proposed Communications Act of 1979 would have provided that any m ttee on Interstate and Foreign Commerce, H. R. 3333, "The Communications Act of 1979" Sect n21 See Amendment of Part 1 of Commission's Rules to Allow Selection from Among Mutuall n22 See Amendment of the Commission's Rules to Allow the Selection from Among Certain C - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The minority ownership issue returned to the Congress in October 1986, n23 when a House at "[t]he most important message of this [*577] hearing today, is that the Commission ty-Owned Broadcast Stations: Hearing on H. R. 5373 before the Subcommittee on Telecommunic on issued an order holding in abeyance, pending completion of the inquiry, actions on lice roduced in Congress. n25 Members of Congress questioned representatives of the FCC during 1988 and 1989, n27 and legislation [**3016] to codify the Commission's minority owner - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n23 The issue had surfaced briefly in the 98th Congress, where proposals to codify and mmittee on Telecommunications, Consumer Protection, and Finance of the House Committee on Protection, and Finance of the House Committee on Energy and Commerce, 98th Cong., 1st Ses Finance of the House Committee on Energy and Commerce, 98th Cong., 2nd Sess. (1984). No l n24 See Notice of Inquiry on Racial, Ethnic or Gender Classifications, 1 F. C. C. Rcd 1 n25 These bills recognized the link between minority ownership and diversity. In introd at is not as well served as others. They address issues that others do not." 133 Cong. Re n26 See Commerce, Justice, State, the Judiciary, and Related Agencies Appropriations fo n27 See FCC Authorization: Hearing before the Subcommittee on Communications of the Sen e on Telecommunications and Finance of the House Committee on Energy and Commerce, 100th C n28 See Broadcasting Improvements Act of 1987: Hearings on S. 1277 before the Subcommit - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*578] Ultimately, Congress chose to employ its appropriations power to keep the FCC' ss has expressed its support for such policies in the past and has found that promoting d ce to minority and women audiences." S. Rep. No. 100-182, p. 76 (1987). The Committee rec broadcast licensees, Congress explicitly approved the use of preferences to promote minor - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n29 Congress did not simply direct a "kind of mental standstill," Winter Park, 277 U.S. support for the minority ownership policies and instructed the Commission in no uncertain h Houses and . . . signed by the President." United States v. Munoz-Flores, 495 U.S. 385, 55 (1940). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Congress has twice extended the prohibition on the use of appropriated [***58] funds or Hollings, chair of both the authorizing committee and the appropriations subcommittee f ion Ownership and Broadcast Programming: Is There a Nexus? The study, Senator Hollings re 982 (1988). - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n30 See Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Pub. L. 101-162, 103 Stat. 1020. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - As revealed by the historical evolution of current [***59] federal policy, both Cong joint determination. C The judgment that there is a link between expanded minority ownership and broadcast div rity-oriented programming or to the expression of a discrete "minority viewpoint" on the a cribed as "minority" does not appeal to nonminorities. Rather, both Congress and the FCC presentative minority participation will produce more variation and diversity than will on ty entry into broadcasting is not a rigid assumption about how minority owners will behave of ideas.'" 438 U.S., at 313. To be sure, there is no ironclad guarantee that each minor at the particular minority students admitted would have typical or distinct "minority" vie ded); id., at 313, n. 48 ("'In the nature of things, it is hard to know how, and when, and Although all station owners are guided to some extent by market demand in their program d those of their nonminority counterparts. This judgment -- and the conclusion that there s minority status influences the selection of topics for news coverage and the presentatio minority images in local news," n32 inasmuch as minority-owned stations tend to devote mo 3018] owner is more likely to employ minorities in managerial and other important roles e tastes and viewpoints of minority groups," NAACP v. FPC, 425 U.S., at 670, n. 7, [***62 illusion that members of a particular minority group share some cohesive, collective viewp g perspectives will be more fairly represented on the airwaves. The policies are thus a pr mitted). - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n31 For example, the CRS analyzed data from some 8,720 FCC-licensed radio and televisio amming: Is There a Nexus? (June 29, 1988). While only 20 percent of stations with no Afro they did so. See id., at 13. Only 10 percent of stations without Hispanic ownership sta [A]n argument can be made that FCC policies that enhanced minority . . . station ownership d adding to programming diversity, then, based on the FCC survey data, an argument can be Other surveys support the FCC's determination that there is a nexus between ownership a Afro-American-oriented stations. See J. Jeter, A Comparative Analysis of the Programming Spitzer, Justifying Minority Preferences in Broadcasting, California Institute of Technolo n32 Fife, The Impact of Minority Ownership on Minority Images in Local TV News, in Comm Standard Metropolitan Statistical Areas); see also M. Fife, The Impact of Minority Ownersh n33 For example, a University of Massachusetts at Boston survey of 3,000 local Boston n ack Community 16-29 (Jan. 28, 1987) (William Monroe Trotter Institute). A comparison betw tions is statistically different, and with its higher use of blacks in newsmaker roles and hite-owned station]." M. Fife, The Impact of Minority Ownership On Broadcast Program Conte olseley, The Black Press, U.S.A. 3-4, 11 (2d ed. 1990) (documenting importance of minority n34 Afro-American-owned radio stations, for example, have hired Afro-Americans in top m rue of Hispanic hiring at Hispanic-owned stations, compared to Anglo-owned stations with S elecommunications Policy Research Conference 88-89 (O. Gandy, P. Espinoza, & J. Ordover ed stations. See National Association of Broadcasters, Minority Broadcasting Facts 9-10, 55 ions, while only a third of Anglo-owned, Spanish-language stations had a majority of Hispa FCC Policy and Spanish-Language Radio, 31 J. Communication 78, 80-81 (1981). See general etworks' own staffs"); Wimmer, supra n. 2, at 426-427 ("[M]inority-owned broadcast outlets ce minority-responsive programming") (footnotes omitted). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***65] Our cases demonstrate that the reasoning employed by the Commission and Congress is per acteristics as race and gender from a jury venire because "[w]ithout that requirement, the nd thus more likely to yield petit juries with similar disposition." Holland v. Illinois, roduce a "fair cross section" of diverse content. Cf. Duren v. Missouri, 439 U.S. 357, 35 minorities have particular viewpoints and interests worthy of protection. We [***66] h, Inc. v. Carey, 430 U.S. 144, 159 (1977) (plurality opinion), quoting Beer v. United Sta portionment." 430 U.S., at 161. Rather, a State subject to @ 5 of the Voting Rights Act of eapportionment plan complies with @ 5"; "neither the Fourteenth nor the Fifteenth Amendmen - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n35 See also Peters v. Kiff, 407 U.S. 493, 503-504 (1972) (opinion of MARSHALL, J.) ("[ community is excluded from jury service, the effect is to remove from the jury room qualit ill consistently vote as a class in order to conclude, as we do, that its exclusion depriv - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***67] D We find that the minority ownership policies are in other relevant respects substantial d painstaking consideration of all available alternatives. See Fullilove, 448 U.S., at 463 deration of the race of station owners. n36 When it first addressed the issue, in a 1946 y for program service, "[i]n issuing and in renewing the licenses of broadcast stations, t ssion altered course somewhat, announcing that "the principal ingredient of the licensee's and desires of his community or service area, for broadcast service." Network Programming the listening public who could receive the station's signal, and by meeting with "leaders - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n36 The Commission has eschewed direct federal control over discrete programming decisi inquire of licensees what they have done to determine the needs of the community they pro ve decree, the Commission would have been required to familiarize itself with the needs of the thousands of broadcast outlets in the United States and the myriad local variations i a broadcaster the ability to "carry a particular program or to publish his own views," if v. FCC, 395 U.S. 367, 396 (1969); cf. FCC v. Sanders Brothers Radio Station, 309 U.S. 470, nications Act of 1934 as "seek[ing] to preserve journalistic discretion while promoting th n37 One factor was the extent to which a station carried programs unsponsored by commer broadcast of less popular programs that would appeal to particular tastes and interests in See id., at 56. Third, the Commission expected "program[ming] devoted to the discussion - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - By the late 1960's, it had become obvious that these efforts had failed to produce suff ling for the difficulties and frustrations of being a Negro in the United States. They ha levision and newspapers offer to their black audience is almost totally white . . . ." Rep 555, and formal "ascertainment" rules requiring a broadcaster as a condition of license "t tter he proposes to meet those problems, needs and interests." Primer on Ascertainment of all stations," it expected each licensee to devote a "'significant proportion'" of a stati he [***71] community that licensees were expected to consult. See, e. g., Ascertainment ants, 54 F. C. C. 2d 766, 767, 775, 776 (1975). The FCC held that a broadcaster's [**302 ntent to discriminate and was a sufficient ground for the nonrenewal of a license. See, e y broadcasters in planning their program schedules to meet the needs and interests of the 58 (1972); WKBN Broadcasting Corp., 30 F. C. C. 2d 958, 970 (1971). [***72] Pursuant to a ninth, all on the ground that the licensee "did not take the trouble to inform itself o ilable with the obligations which the Communications Act places upon those who receive aut (1969). The Commission's ascertainment policy was not static; in order to facilitate appli cal communities, see 57 F. C. C. 2d, at 418-419, and it continued to consider improvements ncommercial Educational Broadcast Applicants, Permittees and Licensees, 47 Radio Reg. 2d ( - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n38 The Commission also devised policies to guard against discrimination in programming h groups "in integrated situations with members of other groups," would constitute a groun n39 In addition, the Commission developed nonentertainment guidelines, which called for topics. See WNCN Listeners Guild, supra, at 598-599, n. 41; Revision of Programming and C Deregulation of Television); Deregulation of Radio, 84 F. C. C. 2d 968, 975 (1981). Appli , such applications were brought to the attention of the Commission itself. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***74] By 1978, however, the Commission had determined that even these efforts at influencing onded positively to its ascertainment obligations and has made significant strides in its ship Statement, 68 F. C. C. 2d, at 980 (footnotes omitted). As support, the Commission ci twork news. When they do appear they are frequently seen in token or stereotyped roles." uring diversity of programming it appears that additional measures are necessary and appro n of minority views in the area of programming." 68 F. C. C. 2d, at 981; see also Commissi and spheres of influence over the airwaves, additional [*589] measures were necessary" - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n40 The See Deregulation of Radio, supra, at 975-999, reconsideration denied, 87 F. C. C. 2d 797 ( elevision, supra, at 1096-1101, reconsideration denied, 104 F. C. C. 2d 358 (1986), remand s imposed significant burdens on licensees without producing corresponding benefits in ter discovered the problems, needs and issues facing their communities . . . . Yet, we have n - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***76] [**3022] In short, the Commission established minority ownership preferences only aft grams we uphold today; to the contrary, the Commission undertook thorough evaluations of i preferences, Congress agreed with the Commission's assessment that race-neutral alterna - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n41 Although the Commission has concluded that "the growth of traditional broadcast fac octrine Obligations of Broadcast Licensees, 102 F. C. C. 2d 143, 197 (1985), the Commissio fairness doctrine does not in its view call into question its "regulations designed to pr n42 JUSTICE O'CONNOR offers few race-neutral alternatives to the policies that the FCC elieves would add to diversity." Post, at 622. But the Commission's efforts to use the as ramming to these needs met with failure. A system of FCC-mandated "diverse" programming w JUSTICE O'CONNOR's proposal that "[t]he FCC . . . evaluate applicants upon their abilit l difficulties in determining the "underrepresented viewpoints" of each community. In add ic definitions of "minority viewpoints" so that it might implement her suggestion. Ibid.; ed). On the other hand, she implies that any such effort would violate equal protection p and] determining which viewpoints are underrepresented." Post, at 615. In this light, JUST by defining a specific "Black" or "Asian" viewpoint. JUSTICE O'CONNOR maintains that the FCC should have experimented with "[r]ace-neutral f se, both Congress, see supra, at 574 (describing minority financing fund that would have a wnership Task Force identified the requirement that licensees demonstrate the availability ership, see Task Force Report 11-12, that requirement was subsequently reduced to three mo 07-408 (1978) (radio applicants). In addition, the Commission noted that minority broadca information about potential minority buyers of broadcast properties. See, e. g., FCC EEO- in 1982 that the "'dearth of minority ownership' in the telecommunications industry" rema The Commission has continued to employ race-neutral means of promoting broadcast divers Increase Availability of FM Broadcast Assignments, 100 F. C. C. 2d 1332 (1985), to develo e to issues facing the community of license. See, e. g., Television Deregulation , 104 F. ts minority ownership policies. See, e. g., id., at 977. [***78] n43 Congress followe ep. No. 93-1190, pp. 6-7 (1974); Broadcast License Renewal Act: Hearings on S. 16 et al. b ny of Rep. Brown). Congress heard testimony from the chief of the Commission's Mass Media trivia." Broadcast Regulation and Station Ownership: Hearings on H. R. 6122 and H. R. 6134 her witnesses testified that the minority ownership policies were adopted "only after spec ship." Minority Ownership of Broadcast Stations: Hearing before the Subcommittee on Commun iation). In enacting the lottery statute, Congress explained the "current comparative hea uring that minority and ethnic groups that have been unable to acquire any significant deg ] access to a wider diversity of information sources." Id., at 45. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***79] [*591] Moreover, the considered nature of the Commission's judgment in selecting the r example, the Commission has studied but refused to implement the more expansive alternat M Acceptance Criteria, 102 F. C. C. 2d 548, 555-558 (1985); Clear Channel Broadcasting, 78 ). In addition, in a ruling released the day after it adopted the comparative hearing cred d on the ground [***80] that it would ensure minorities a chance to bid on stations tha cted [*593] other minority ownership proposals advanced by the Office of Telecommunica - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n44 The ficant delay in the time it presently takes to sell a station" and that it might require t n45 See Public Papers of the Presidents, supra n. 4, at 253; Petition for Issuance of P osals as a blanket exemption for minorities from certain then-existing Commission policies egulations that precluded an owner from holding more than one broadcast facility in a give st before the same owner was allowed to acquire a third VHF or fourth (either VHF or UHF) case-by-case basis, a blanket exception for minorities "would be inappropriate." 69 F. C. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***81] The minority ownership policies, furthermore, are aimed directly at the barriers that m quate financing, paucity of information regarding license availability, and broadcast inex ancing Minority Ownership Opportunities 25-30 (May 1982). The Commission assigned a prefe . Most license acquisitions, however, are by necessity purchases of existing stations, be the UHF band. n46 Congress and the FCC therefore found a need for the minority distress s ding existing licensees with an incentive to seek out minority buyers. The Commission's c - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n46 As of mid-1973, licenses for 66.6 percent of the commercial television stations -- authorized by the FCC as of mid-1989 had already been issued by mid-1973, including 85 per 2, supra; Honig, The FCC and Its Fluctuating Commitment to Minority Ownership of Broadcast lowest power and highest frequencies, and hence those with the smallest areas of coverage) - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***83] The minority ownership policies are "appropriately limited in extent and duration, and itted). Although it has underscored emphatically its support for the minority ownership p inority ownership program as the number of minority broadcasters increases. In addition, contained in the lottery statute, 47 U. S. C. @ 309(i)(3)(A) (1982 ed.), that Congress ins tailor the program based on that information, and may eliminate the preferences when appro parative Hearings, 93 F. C. C. 2d 952, 974 (1983). Furthermore, there is provision for adm 8 and that there will be frequent [*596] opportunities to revisit the merits of those po rsity. Such a goal carries its own natural limit, for there will be no need for further m n termination. Cf. Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 64 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n47 See, e. g., Minority Ownership of Broadcast Stations: Hearing before the Subcommitt n48 As in Fullilove v. Klutznick, 448 U.S. 448 (1980), the FCC minority preferences are ies and Rules Relating to Broadcast Renewal Applicants, Competing Applicants and Other Par omparative hearing process, seeks to detect sham integration credits claimed by all applic 0, 8159-8160 (1989); Northampton Media Associates, 3 F. C. C. Rcd 5164, 5170-5171 (Rev. Bd 5520-5521 (1989); Newton Television Limited, 3 F. C. C. Rcd 553, 558-559, n. 2 (Rev. Bd. Television, Ltd., 2 F. C. C. Rcd 1101, 1102-1104 (Rev. Bd. 1987), review denied, 3 F. C. ; Hispanic Owners, Inc., 99 F. C. C. 2d 1180, 1190-1191 (Rev. Bd. 1985); KIST Corp., 99 F. 55 U.S. App. D. C. 397, 801 F. 2d 1436 (1986). As evidenced by respondent Shurberg's own unsuccessful attack on the credentials of Ast Statement, 92 F. C. C. 2d, at 855. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***86] Finally, we do not believe that the minority ownership policies at issue impose impermi license, they claim that they have been handicapped in their ability to obtain one in the n to bear some of the burden of the remedy," [**3026] Wygant, 476 U.S., at 280-281 (op an important governmental interest is consistent with equal protection principles so long that it may disappoint the expectations of nonminority firms. When effectuating a limited tion omitted); id., at 521 (MARSHALL, J., concurring in judgment). - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n49 Minority broadcasters, both those who obtain their licenses by means of the minorit on to speculate about how he or she obtained a license; each broadcaster is judged on the ARSHALL, J., concurring in judgment). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - In the context of broadcasting licenses, the burden on nonminorities is slight. The FC frequencies on the electromagnetic spectrum means that "[n]o one has a First Amendment ri t factors such as minority ownership. Award of a preference in a comparative hearing or tr Respondent Shurberg insists that because the minority distress sale policy operates to rities, which is simply a "plus" factor considered together with other characteristics of ities. By its terms, the [***89] policy may be invoked at the Commission's discretion o -- and only when the licensee chooses to sell out at a distress price rather than to go th a distress sale will ever occur at all, because the policy operates only where the qualif the Commission at the time of the designation. See Clarification of Distress Sale Policy, y manner. n51 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n50 Petitioner Metro contends that, in practice, the minority enhancement credit is not ence has shown that minority ownership does not guarantee that an applicant will prevail. 88), appeal pending, Lamprecht v. FCC, No. 88-1395 (CADC); Horne Industries, Inc., 98 F. C ar Television Co., 93 F. C. C. 2d 191, 195 (Rev. Bd. 1983), review denied, FCC 84-97 (May In many cases cited by Metro, even when the minority applicant prevailed, the enhanceme Rcd 469, 479 (ALJ 1990); Richardson Broadcasting Group, 4 F. C. C. Rcd 7989, 7999 (ALJ 19 1989); Barden, 4 F. C. C. Rcd 7043, 7045 (ALJ 1989); Perry Television, Inc., 4 F. C. C. R ers Limited Partnership, 4 F. C. C. Rcd 581, 585 (ALJ 1989); Key Broadcasting Corp., 3 F. . C. Rcd 830 (1990); Gali Communications, Inc., 2 F. C. C. Rcd 6967, 6994 (ALJ 1987); Bogn C. C. Rcd 4767 (1988); Magdalene Gunden Partnership, 2 F. C. C. Rcd 1223, 1238 (ALJ 1987) oup, 2 F. C. C. Rcd 1149, 1162 (ALJ), aff'd, 2 F. C. C. Rcd 6124 (Rev. Bd. 1987), review d n51 Faith Center also held broadcast licenses for three California stations, and in 197 solicitation for funds and for failure to cooperate with an FCC investigation. Although r rd station, timely filed competing applications against two of Faith Center's California s 2). Of course, a competitor may be unable to foresee that the FCC might designate a license ority distress sale policy would least disrupt any of the competitor's settled expectation nd did not anticipate that the license would become available. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***91] In practice, distress sales have represented a tiny fraction -- less than 0.4 percent was commenced in 1978. See A. Barrett, Federal Communications Commission, Minority Emplo 1990). This means that, on average, only about 0.2 percent of renewal applications filed vast remainder of license opportunities available in a market that contains over 11,000 b tation, or seek financial participation in enterprises that qualify for distress sale trea ve, which set aside for minorities 10 percent of federal funds granted for local public wo - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n52 Even for troubled licensees, distress sales are relatively rare phenomena; most sta ng them to transfer the license to another concern as part of a negotiated settlement with ensees can effect a sale for the benefit of innocent creditors under the "Second Thursday" ing Corp. (WLTH), 65 F. C. C. 2d 66, 70-71 (1977); and still others elect to defend their - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***93] III The Commission's minority ownership policies bear the imprimatur of longstanding [**3 ment in No. 89-453 is affirmed, the judgment in [*601] No. 89-700 is reversed, and the c It is so ordered. CONCURBY: STEVENS CONCUR: JUSTICE STEVENS, concurring. Today the Court squarely rejects the proposition that a governmental decision that rest e remedial justification, of such decisions. n1 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 See Richmond v. J. A. Croson Co., 488 U.S. 469, 511-513 (1989) (STEVENS, J., concurr - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***94] I remain convinced, of course, that racial or ethnic characteristics provide a relevant ly identified and unquestionably legitimate." Fullilove v. Klutznick, 448 U.S. 448, 534-53 recognized interest in broadcast diversity -- is clearly identified and does not imply an igmatized in any way. n2 In addition, the Court demonstrates that these cases fall within terest in broadcast diversity [*602] -- like the interest in an integrated police forc bly legitimate. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n2 Cf. Croson, 488 U.S., at 516-517; Fullilove, 448 U.S., at 545, and n. 17. n3 See Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 452-454 (1985) (STEVENS, gically believe that the classification would serve a legitimate public purpose that trans discussing the level of scrutiny appropriate in equal protection cases). n4 See Wygant, 476 U.S., at 314 (STEVENS, J., dissenting). n5 See id., at 315-316. See also JUSTICE O'CONNOR's opinion concurring in part and conc goal of promoting racial diversity among the faculty." Id., at 288, n. [***96] n6 See Justice Powell's opinion announcing the judgment in Regents of University of Cal - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Therefore, I join both the opinion and the judgment of the Court. DISSENTBY: O'CONNOR; KENNEDY DISSENT: JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE, JUSTICE SCALIA, and JUSTICE KENNED At the heart of the Constitution's guarantee of equal protection lies the simple comma Tax Deferred Annuity and Deferred Compensation Plans v. Norris, 463 U.S. 1073, 1083 (1983 llocate benefits and burdens among individuals based on the assumption that race or ethnic uirement that racial classifications are permissible only if necessary and narrowly tailor tution's equal protection guarantees extend equally to all citizens. [*603] The Court' I As we recognized last Term, the Constitution requires that the Court apply a strict sta J. A. Croson Co., 488 U.S. 469 (1989); see also Bolling v. Sharpe, 347 U.S. 497 (1954). " The Court abandons this traditional safeguard against discrimination for a lower standar ng to race is no routine concern. This Court's precedents in no way justify the Court's m In both the challenged policies, the Federal Communications Commission (FCC) provides b h racial classifications as a denial to particular individuals, of any race or ethnicity, ased reasoning and the conception of a Nation divided into racial blocs, thus contributing enting) (upholding treatment of individual based on inference from race is "to destroy the policies may embody stereotypes that treat individuals as the product of their race, eval issippi University for Women v. Hogan, 458 U.S. 718, 725-726 (1982). Racial classification iderable tension with the Nation's widely shared commitment to evaluating individuals upon o seldom provide a relevant basis for disparate treatment, and because classifications [* ntified and unquestionably legitimate." Fullilove v. Klutznick, [**3030] 448 U.S. 448, The Constitution's guarantee of equal protection binds the Federal Government as it doe wn v. Board of Education, 347 U.S. 483 (1954), the Court held that equal protection princi "[I]t would be unthinkable that the same Constitution would impose a lesser duty on the F nt is [***101] coextensive with that of the Fourteenth." United States v. [*605] Parad v. Valeo, 424 U.S. 1, 93 (1976); Weinberger v. Wiesenfeld, 420 U.S. 636, 638, n. 2 (1975) Nor does the congressional role in prolonging the FCC's policies justify any lower leve Nonetheless, the respect due a coordinate branch yields neither less vigilance in defens equal protection challenge to a provision of the Social Security Act, found the assertedly cisely the same as to equal protection claims under the Fourteenth Amendment." 420 U.S., a Mathews, 465 U.S. 728 (1984); Califano v. Webster, 430 U.S. 313 (1977) (per curiam); Calif RENNAN, J.); Buckley v. Valeo, supra, at 93; Frontiero v. Richardson, 411 U.S. 677, 684-69 hools. Congress has considerable latitude, presenting special concerns for judicial review, wh se does not implicate those powers. Section 5 empowers [*606] Congress to act respect ce, by appropriate legislation, the provisions of this article," which in part provides th ment's "dramatic change in the balance between congressional and state power over matters of the States' actions. See id., at 488-491, 504; Hogan, supra, at 732 (@ 5 grants power 4] Fullilove, supra, at 476-478, 483-484. The Court asserts that Fullilove supports its novel application of intermediate scrutin s under @ 5 of the Fourteenth Amendment. In Fullilove, the Court reviewed an Act of Congr of construction contracts. Although the various opinions in Fullilove referred to several e. g., 448 U.S., at 483 (opinion of Burger, C. J., joined by WHITE, J., and Powell, J.) (" competence and authority to enforce equal protection guarantees"); [***105] id., at 5 side for minority contractors. We distinguished Fullilove, in which we upheld a similar se inion of the Court); id., at 490 (opinion of O'CONNOR, J., joined by REHNQUIST, C. J., and d that the latitude afforded Congress in identifying and redressing past discrimination re ovides the majority with no support, for it questioned whether [***106] the Court shou Second, Fullilove applies at most only to congressional measures that seek to remedy id ed the construction industry and had carefully constructed corresponding remedial measures Fullilove indicated that careful review was essential to ensure that Congress acted solely ss are clearly not acting for any remedial purpose, see infra, at 611-612, and the Court t onsidered decision of the Congress and the President," Fullilove, [*608] supra, at 473 [**3032] Finally, even if Fullilove applied outside a remedial exercise of Congress' d standard, the Government's use of racial classifications need only be "'substantially re Members of the Court rejected intermediate scrutiny in favor of some more stringent form o hat is constitutionally prohibited unless it is a necessary means of advancing a compellin Justice Burger's opinion, joined by JUSTICE WHITE and Justice Powell, declined to adopt a onal program that employs racial or ethnic criteria to accomplish the objective of remedyi tions are simply too pernicious to permit any but the most exact connection between justif BLACKMUN, undermines the Court's course today: That opinion expressly drew its lower stan [*609] action, and stated that the appropriate standard of review for the congression llilove preceded our determination in Croson that strict scrutiny applies to preferences t The guarantee of equal protection extends to each citizen, regardless of race: The Fede bsent searching judicial inquiry into the justification for such race-based measures, ther feriority or simple racial politics." 488 U.S., at 493 (opinion of O'CONNOR, J.); see also classification"). The Court's reliance on "benign racial classifications," ante, at 564, is particularly umstances permitted by our cases, exact costs and carry with them substantial dangers. To elley v. Kraemer, 334 U.S. 1, 22 (1948), securing to each individual an immunity from trea 33] its ability to distinguish good from harmful governmental uses of racial criteria. Hi lects only acceptance of the current generation's conclusion that a politically acceptable enevolent." By expressly distinguishing "benign" from remedial race-conscious measures, th ign." See ante, at 564-565. Depending on the preference of the moment, those racial disti nities knitted together by various traditions and carried forth, above all, by individuals This dispute regarding the appropriate standard of review may strike some as a lawyers' classifications. A lower standard signals that the Government may resort to racial disti its new standard of review embodies. II Our history reveals that the most blatant forms of discrimination have been visited upo ipate in its commercial enterprises. It is undisputed that minority participation in the Station Ownership and Broadcast Programming: Is There a Nexus? 42 (June 29, 1988) (minori crimination and the patterns of exclusion that have widely affected our society. As a [** ties as well as the protection afforded to them under law. For these reasons, and despite the harms that may attend the Government's use of racial subject even racial classifications claimed to be remedial to strict scrutiny, however, to nterest demands. See, e. g., Croson, supra, at 493-495, 498-502; Wygant v. Jackson Bd. of quired to remedy discrimination that may be identified in the allocation of broadcasting l Yet it is equally clear that the policies challenged in these cases were not designed a d no remedial purpose, Tr. of Oral Arg. 40-42, and has disclaimed the possibility that dis gramming. Even if the appropriations [*612] measure could transform the purpose of th that led the FCC to formulate the challenged policies. See S. Rep. No. 100-182, p. 76 (1 sentation of minorities in the media of mass communications, as it has adversely affected whatever about the purpose of the relevant appropriations measures, identifies no discrimi U.S., at 456-467 (opinion of Burger, C. J.) (surveying identification of discrimination af ersity. Ante, at 566-568. I agree that the racial classifications cannot be upheld as re III Under the appropriate standard, strict scrutiny, only a compelling interest may support ion. The interest in increasing the diversity of broadcast viewpoints is clearly not a co urt does not claim otherwise. Rather, it employs its novel standard and claims that this ial classification. First, it too casually extends the justifications that might support r reserved for remedial settings, they may in fact promote notions of racial inferiority and using racial or ethnic criteria for the purpose or with the effect of imposing an invidiou .S., at 486-487. Second, it has initiated this departure by endorsing an insubstantial [* endorsement trivializes the constitutional command to guard against such discrimination a An interest capable of justifying race-conscious measures must be sufficiently specific discrimination cannot be considered compelling. See 488 U.S., at 505 (because the [**303 opportunities on the basis of race"). We determined that a "generalized assertion" of pas In Wygant, we rejected [***118] the asserted interest in "providing minority role model n), because "[s]ocietal discrimination, without more, is too amorphous a basis for imposin 276. Both cases condemned those interests because they would allow distribution of goods lurality opinion). The asserted interest in these cases suffers from the same defects. The interest is ce ed with race, or even how one would assess the diversity of broadcast [***119] viewpo racial preferences, linked to nothing other than proportional representation of various ra at the broadcasting spectrum continues to reflect that mixture. We cannot deem to be cons The asserted interest would justify discrimination against members of any group found t rest in achieving role models in public schools, in part because that rationale could as r The FCC's claimed interest could similarly justify limitations on minority members' part y remedial purpose and otherwise undefined, "benign" means only what shifting fashions and t of fashion and subject to disadvantageous but "benign" discrimination. Under the majority's holding, the FCC may also advance its asserted interest in viewpoi nted; and then using that determination to mandate particular programming or to deny licen is course, albeit without making express its reasons for choosing to favor particular [** Facilities, 68 F. C. C. 2d 979 (1978) (1978 Policy Statement). We should not accept as adequate for equal protection purposes an interest unrelated to that interest is necessarily related to past racial discrimination; yet the interest in d thoughts and behavior. And it will prove impossible to distinguish naked preferences for vernment will be able to claim that it has favored certain persons for their ability, ste Even considered as other than [***122] a justification for using race classification ts as a legitimate basis for the FCC, acting pursuant to its "public interest" statutory m e. g., FCC v. National Citizens Committee for Broadcasting, 436 U.S. 775 (1978); Red Lion ational Broadcasting Co. v. United States, 319 U.S. 190 (1943). We have also concluded tha ncerns support limited but inevitable Government [***123] regulation of the peculiarly c ting viewpoints are neither beyond the FCC's statutory authority nor contrary to the First The FCC's extension of the asserted interest in diversity of views in these cases prese ms to have adopted the challenged policies to supplement programming content with a partic ting measure designed to amplify a distinct set of views or the views of a particular clas States, supra, at 226 [***124] ("But Congress did not authorize the Commission to choo ese Regulations proposed a choice among applicants upon some such basis, the [First Amendm justify distinctions based on race. IV Our traditional equal protection doctrine requires, in addition to a compelling state at 274 (plurality opinion); Palmore v. Sidoti, 466 U.S. 429, 432-433 (1984). This element he classification was illegitimate racial prejudice or stereotype." Croson, 488 U.S., at 4 deemed narrowly tailored. The Court instead finds the racial classifications to be "subst [*618] A The FCC claims to advance its asserted interest in diverse viewpoints by singling out r particular and distinct viewpoint inheres in certain racial groups, and that a particular 89-453, p. 17; see 1978 Policy Statement, 68 F. C. C. 2d, at 981 (policies seek "represent 26] . . . tastes and viewpoints"). The policies directly equate race with belief and beha ce, or in the color of a person's skin, reflect real differences that are relevant to a pe gant, supra, at 316 (STEVENS, J., dissenting) (internal quotation marks omitted; citation App. D. C. 279, 285, 770 F. 2d 1192, 1198 (1985) (minority preference contrary to "one of n by categorizing that individual as a member of a racial group presumed to think and beha The FCC assumes a particularly strong correlation of race and behavior. The FCC justif rrect only to the extent that minority-owned stations provide the desired additional views focus on ownership to improve programming assumes that preferences linked to race are so k between race and behavior, especially when mediated by market forces, is the assumption d prefer members of minority groups because they were more likely to [***128] serve comm [**3038] could not be presumed from ethnicity or race. Ibid. The majority addresses this point by arguing that the equation of race with distinct vi "good" from "bad" stereotypes, this reasoning repudiates essential equal protection princ inct perspective, but notes that the correlation of race to behavior is "not a rigid assum nlikely to possess the unique experiences and background that contribute to viewpoint dive ly does not apply to certain individuals, and those persons may legitimately claim that th ven a true generalization about the class is an insufficient reason for disqualifying an i because efficacious "in the aggregate." Ante, at 579. In Wiesenfeld, we rejected similar upport. But such a genderbased generalization cannot suffice to justify the denigration o ases, even if the Court's equation of race and programming viewpoint [***130] has some ctices that classify employees in terms of religion, race, or sex tend to preserve traditi andoned heightened scrutiny, which requires a direct rather than approximate fit of means as legitimate the FCC's claim in these cases that members of certain races will provide su [*621] B Moreover, the FCC's selective focus on viewpoints associated with race illustrates a pa [***131] Red Lion, 395 U.S., at 390, yet of all the varied traditions and ideas shared Even if distinct views could be associated with particular ethnic and racial groups, foc (opinion of Powell, J.) (race-conscious measures might be employed to further diversity on Our equal protection doctrine governing intermediate review indicates that the Governme (1976). The FCC has used race as a proxy for whatever views it believes to be underreprese , Wengler v. Druggists Mutual Ins. Co., 446 U.S. 142, 151-152 (1980); Craig, supra, at 198 have no interest in advancing the views the FCC believes to be underrepresented, or will resenting those views. The FCC has failed to implement a case-by-case determination, and 281 (1979). Even in the remedial context, we have required that the Government adopt mean held the challenged set-aside only because it contained a waiver provision that ensured th 9 (opinion of O'CONNOR, J.). Moreover, the FCC's programs cannot survive even intermediate scrutiny because race-neu to provide programming that the FCC believes would add to diversity. The interest the FC ted goal. See 1978 Policy Statement, 68 F. C. C. 2d, at 981; ante, at 584-585, n. 36. Th to avoid measures that directly further the asserted interest. See, e. g., Orr v. Orr, s rect, race-neutral means to achieve its asserted interest. They essentially argue that we mendment bars the FCC from seeking to accomplish indirectly what it may not accomplish dir n any fashion, it must employ that direct means before resorting to indirect race-consciou Other race-neutral means also exist, and all are at least as direct as the FCC's racial reflect underrepresented viewpoints. If the FCC truly seeks diverse programming rather t the programming interest. Additionally, if the FCC believes that certain persons by virtu t they will add to the diversity of programming, rather than rely solely upon suspect clas asons that various minority preferences, including those reflected in the distress sale, o t directly reduce financial and informational barriers. The FCC could develop an effective ascertainment policy, one guaranteeing programming t 585-589. Yet that policy applied only to existing licensees, addressed not viewpoints b certainment policies altered programming little more than the market already did, and prov V Stations, 98 F. C. C. 2d 1076, 1098 (1984), reconsideration denied, 104 F. C. C. 2d 358 101. Unsurprisingly, the FCC has concluded that this limited ascertainment policy has not g ascertainment requirements). The FCC has posited a relative absence of "minority viewpoints," yet it has never sugge ming diversity that should be the subject of greater programming or that necessitates raci The FCC has never attempted to assess what alternatives to racial classifications might icy. 68 F. C. C. 2d, at 979-980. Relying on ownership statistics and cursory evaluations ry. Id., at 980-981. Not until 1986 did the FCC attempt to determine the nature of the vi otice of Inquiry on Racial, Ethnic, or Gender Classifications, 1 F. C. C. Rcd 1315 (1986), vely increase program diversity, [*625] whether it should require an individualized sh nd whether it should select applicants based on demonstrated commitment to particular issu Appropriations Act for Fiscal Year 1988, Pub. L. 100-202, 101 Stat. 1329. [**3041] T [***139] race-conscious means before adopting readily available race-neutral, alternati The FCC seeks to avoid the tailoring difficulties by focusing on minority ownership rat on the basis of race. See Bakke, 438 U.S., at 307 (opinion of Powell, J.). Yet the FCC r See 1978 Policy Statement, supra; Commission Policy Regarding Advancement of Minority Ow impermissible end, rather than to increase diversity of viewpoints, the asserted interest hat at issue in Croson, "cannot [***140] be said to be narrowly tailored to any goal, e [*626] C Even apart from these tailoring defects in the FCC's policies, one particular flaw unde he resulting programming. The Court's lengthy discussion of this issue, ante, at 569-579, ally related to the asserted end. The Court understandably makes no stronger claims, beca Court's review of congressional hearings and social science studies establishes the existe elated to the interest [***141] in diverse programming. That equal protection issue tu plete, that failure confirms that the chosen means do not directly advance the asserted in sired programming. Three difficulties suggest that the nexus between owners' race and programming is consi r owners, to seek to broadcast programs that will attract and retain audiences, rather tha 1989) (case below) (Williams, [*627] J., concurring in part and dissenting in part) (sur distress sale presents a particularly acute difficulty of this sort. Unlike the comparat , at 557-558; Commission Policy Regarding Advancement [**3042] of Minority Ownership in effect on programming. Third, the FCC had absolutely no factual basis for the nexus when it adopted the polici ded it from awarding preference based on race and ethnicity, and instead required applican , e. g., Mid-Florida Television Corp., 33 F. C. C. 2d 1 [***143] (Rev. Bd.), review den the District of Columbia Circuit rejected the FCC's position on statutory grounds. See TV d," and that a race preference was incompatible with the FCC's governing statute. Ibid. In to greater diversity of programming. Id., at 357-358, 495 F. 2d, at 937-938; [*628] se [***144] the FCC in its 1978 Policy Statement acquiesced and established the policies redicate must be established to support use of race classifications, unanimously sought to 1 F. C. C. Rcd 1315 (1986), modified, 2 F. C. C. Rcd 2377 (1987). As the Chairman of the "To the extent that heightened scrutiny requires certain factual predicates, we discove ever been established. "For example, the Commission has at no time examined whether there is a nexus between a told us we could, indeed must, assume such a nexus." Minority-Owned Broadcast Stations, He s., 16 (1986). Through the appropriations measures, Congress barred the FCC's attempt to initiate that ex Even apart from the limited nature of the Court's claims, little can be discerned from e viewpoints contained in the broadcast spectrum. Second, no degree of congressional endor ongressional declaration that members of certain races will as owners produce distinct and Third, we should hesitate before accepting as definitive any declaration regarding even th 0-182, p. 76 (1987); H. R. Conf. Rep. No. 97-765, p. 43 (1982). Congress, through appropr 8, supra. Especially where Congress rejects the considered judgment of the executive offic , 453 U.S. 57, 83-85 (1981) (WHITE, J., dissenting). Additionally, the FCC created the ch ongressional action does not amount to an endorsement of the reasoning and empirical claim e process and subject to the hearings and deliberation accompanying substantive legislatio [*630] D Finally, the Government cannot employ race classifications that unduly burden individua ndependent requirement, as well as the other constitutional requirements. The comparative community. The distress sale imposes a particularly significant burden. The FCC has at ered [***148] by the observation, see ante, at 598-599, that the FCC and the seller hav portunity depends entirely upon race or ethnicity. The Court's argument that the distress utiny of particular programs: It is no response to a person denied admission at one school The comparative licensing program, too, imposes a significant burden. The Court's emph ot difficult to meet, and, given the sums at stake, applicants have every incentive to str 9] factor in a substantial percentage of comparative proceedings. Petitioner Metro asse n No. 89-453, p. 39, and the Court notes only that "minority ownership does not guarantee In sum, the FCC has not met its burden even under the Court's test that approves of rac hould be applied. The Court has determined, in essence, that Congress and all federal age ines equal protection guarantees and permits distinctions among citizens based on race and JUSTICE KENNEDY, with whom JUSTICE SCALIA joins, dissenting. Almost 100 years ago in Plessy v. Ferguson, 163 U.S. 537 (1896), [***150] this Court u The Court asked whether the measures were "reasonable," and it stated that "[i]n determ a view to the promotion of their comfort." Id., at 550. The Plessy Court concluded that t fundamental errors in Plessy, its standard of review and its validation of rank racial in lessy's standard of review and its explication have disturbing parallels to today's majori Today the Court grants Congress [***151] latitude to employ "benign race-conscious m . . . and are substantially related to achievement of those objectives." Ante, at 564-565 ring that interest, we are told, is worth the cost of discriminating among citizens on the to racial classifications. The Court abandons even the broad societal remedial justificat now will allow the use of racial classifications by Congress untied to any goal of address . J. A. Croson Co., 488 U.S. 469, 511 (1989) (opinion concurring in part and concurring in sis of race will advance some "important" governmental interest. Once the Government takes the step, which itself should be forbidden, of enacting into es to favor. While the Court repeatedly refers [**3045] to the preferences as favoring icies upheld today operate to exclude the many racial and ethnic minorities that have not disavowed in order to sustain the policy, the race classifications bear scant relation to - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 The Court fails to address the difficulties, both practical and constitutional, with story to 1492 to conclude that the applicant was "Hispanic" for purposes of a minority tax al characteristics is repugnant to our constitutional ideals." Fullilove v. Klutznick, 448 ine racial classes by criteria that can be administered objectively, it must study precede 946)." Id., at 534, n. 5. Other examples are available. See Population Registration Act N - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***154] I cannot agree with the Court that the Constitution permits the Government to discrimin he Court turns back the clock on the level of scrutiny applicable to federal race-consciou 23 U.S. 214 (1944). But the relaxed standard of review embraced today would validate that lding true to the constitutional command of racial equality. Under our modern precedents, n Fullilove v. Klutznick, 448 U.S. 448 (1980), even assuming its validity, see Croson, sup As to other exercises of congressional power, our cases following Bolling v. Sharpe, 34 ined in its actions by the same standard applicable to the States: strict scrutiny of all JUSTICE O'CONNOR demonstrates that this statute could not survive even intermediate scru s. The Court insists that the programs under review are "benign." JUSTICE STEVENS agrees. ities of owners of different races or the merits [***156] of different kinds of programmi of the Plessy Court was its similar confidence in its ability to identify "benign" discrim d race with a badge of inferiority. If this be so, it is not by reason of anything found ne when racial discrimination is benign, ante, at 564-565, n. 12, it offers no explanation - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n2 JUSTICE STEVENS' assertion that the FCC policy "does not imply any judgment concerni ming content, does not "imply any judgment concerning . . . the merits of different kinds - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***157] The Court also justifies its result on the ground that "Congress and the Commission hav . The Court is all too correct that the type of reasoning employed by the Commission and are not. The following statement, for example, would fit well among those offered to upho cularly in their group associations, loyalties, cultures, outlook, modes of life and stand The history of governmental reliance on race demonstrates that racial policies defended pose "stigma on its supposed beneficiaries," Croson, 488 U.S., at 516-517 [*636] (opini g). Although the majority disclaims it, the FCC policy seems based on the demeaning notio ster the view that members of the favored groups are inherently less able to compete on th y rewards without advancing the stated policy of minority inclusion. n3 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n3 The record in one of these two cases indicates that Astroline Communications Company rican who held 21% of Astroline's overall equity and 71% of its voting equity. His total - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***159] The perceptions of the excluded class must also be weighed, with attention to the cardi s policies such as the FCC rules here "stigmatizes the disadvantaged class with the unprov e conveyed is that it is acceptable to harm a member of the group excluded from [**3047] aged by the preference should feel no stigma at all, because racial preferences address no on that the many citizens, who to their knowledge "have never discriminated against anyone Another explanation [***160] might be that the stigma imposed upon the excluded clas evant in the face of efforts to compensate for racial inequalities. But these are not pre affected classes, candid about the "animosity and discontent" they create, Fullilove, supr 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 erests of both require that the common government of all shall not permit the seeds of rac se-by-case arbiter of when it is desirable and benign for the Government to disfavor some y and the favored escape condescension. But history suggests much peril in this enterpri an move us from "separate but equal" to "unequal but benign."