SCOTUS Affirmative Action Case Could Affect Future FCC Diversity Programs

Arguments based on the ruling in Students for Fair Admissions (SFFA) v. UNC and SFFA v. Harvard that the two universities couldn’t consider race in admissions are likely to crop up “in every context where race preferences are before a court,” and the FCC will have to take that into account in future orders on diversity, said Pillsbury Winthrop broadcast attorney Scott Flick. But agencies concluding that the SCOTUS ruling is more expansive than it is would be playing into the hands of civil rights opponents, said United Church of Christ Media Justice Ministry attorney Cheryl Leanza. “The organizations and the political actors that are bringing these lawsuits are doing everything they can to stop progress towards racial equality in this country and would like nothing more than for everyone to cower under a rock,” she said.

The affirmative action opinion is narrowly concerned with college admissions, but language in it condemning racial preferences will likely cause more scrutiny for any diversity program, said Michael Eastman, Center for Workplace Compliance senior vice president-policy. Wrote Chief Justice John Roberts in the majority opinion: Harvard's and UNC’s admissions programs “lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points.” Several groups that have filed frequently in the FCC's EEO docket -- The Multicultural Minority, Telecom and Internet Council, Leadership Conference on Civil and Human Rights and the National Association of Black Owned Broadcasters -- declined to comment.

A proposal to revive FCC collection of equal employment opportunity workforce diversity data using Form 395-B is widely seen as a likely priority of the agency once it has a Democratic majority, and broadcaster lobbying on the matter focused on pushing the agency to keep such data anonymized and unattributed to a specific station, while public interest and civil rights groups sought creating a publicly searchable database of broadcaster diversity statistics. Advocates and broadcast officials disagree about how applicable the decision would be to FCC data collection, but most agree opponents are likely to point to it in their arguments. Justice Neil Gorsuch’s concurring opinion in the affirmative action case explicitly condemns classifying prospective students into racial categories, which Gorsuch derides as bureaucratic creations “resting on incoherent stereotypes.”

“There’s still no question that we can collect data; there’s nothing about the affirmative action case that says the government can’t collect data,” said Leanza. “How can we know what’s going on if we can’t collect data?" The "spirit of that decision is that we should shift back into a colorblind mode,” said Flick. Eastman said the decision likely doesn’t directly apply to workforce data collection but could have indirect effects on the way the FCC words such an order and what it eventually does with the data. If the SCOTUS decision is seen as adding to the arsenal of potential opponents of a public EEO database, the agency could be deterred from going that route, said Foster Garvey broadcast attorney Melodie Virtue. Eastman expects government agencies and others to start scrutinizing or reconsidering the racial categories they use in demographic data.

Since the SCOTUS decision is focused on racial preferences, it's less applicable to programs that instead seek to prevent discrimination, Eastman said. He expects federal agencies and industry DEI programs to adjust their language and policies to reflect that in the wake of SFFA v. UNC and SFFA v. Harvard. “DEI initiatives remain lawful, but they must be carefully designed, documented, and implemented to comply with applicable law,” said a blog post from employment and labor law firm Jackson Lewis. “Pay particular attention to DEI measures focused on the recruitment and advancement of particular groups.”

The way future cases in the same area shake out is also likely to determine the ultimate effects of the SCOTUS decision, Eastman said. Several attorneys said they're looking to a case on admission to a magnet school in Virginia involving whether entities can use race-neutral means of increasing diversity, Coalition for TJ v. Fairfax County School Board, as potentially affecting future FCC diversity initiatives. Opponents of diversity programs are “going to try to say this decision does much more than it does because they won,” Leanza said of the SCOTUS cases.