March 2, 2001


Federal court strikes down affirmative action in broadcasting

By David A. Love

As an African-American journalist, I take issue with a recent court ruling that will adversely affect the presence of minorities in the broadcast media.

The U.S. Court of Appeals for the District of Columbia threw out Federal Communications Commission (FCC) rules requiring TV and radio stations to make special efforts to recruit minority job applicants. The three-judge panel found the rules were unconstitutional, even thought the FCC didn't require broadcasters to hire minority of women recruits as a condition to renew their license. In 1998, the same court held that FCC rules requiring broadcasters to hire minorities were race-based and unconstitutional.

The judges on the panel were Judge Douglas H. Ginsburg and David B. Sentelle, both Reagan appointees, and Karen L. Henderson, a George Bush appointee.

The commission's outgoing and first black chairman is William E. Kennard. He called the court's decision "outrageous" and said it would have a "deeply disturbing" impact on other government programs that urge corporate outreach to minorities and women.

The decision came on the same day the Commerce Department reported that the number of minority-owned television stations has dropped to its lowest level in 10 years, while the number of minority-owned radio stations rose only slightly in the last two years. The report concluded that the consolidation of the broadcasting industry has made it harder for minority-owned media companies to stay afloat. One example of the trend is the recent sale of Black Entertainment Television to media giant Viacom, owner of CBS, Showtime, MTV, Paramount, UPN and Blockbuster.

The case reminded me of one of my appearances on MSNBC News. The network invited me in October 1997 as a guest commentator for a two-hour special on the Promise Keepers. I was the lone person of color on the program, a young black man debating two middle-aged, conservative white me.

During the viewer call-in segment, I faced a steady barrage of callers, all of whom disagreed with me and some of whom were angered by my words. I sensed that they were angry because I was challenging some of their long-held assumptions about race and politics. I was saying things rarely heard on television. For example, I pointed out that conservative Christianity has historically not been friendly to people of color. Right-wing Christians have justified slavery and segregation.

Unfortunately, this audience was less likely to see a black person providing a complex political analysis on television than to see one playing a sport, performing or facing a jury verdict in a murder case. Without my contribution, the tone of that news show would have been fundamentally different. And that's the whole point of diversity in broadcasting: to include points of view from segments of society that are often overlooked.

Lack of diversity in the media is not new. In 1968, the National Advisory Commission on Civil Disorders declared that the media were partly responsible for the country's racial divisions. The chairman of the Commission, Illinois Governor Otto Kerner, pointed to the racial bias inherent in the white male-dominated news media. He called for the increased hiring of people of color in America's newsrooms. But even today, newspaper newsrooms, for example, are still 88 percent white, according to the American Society of Newspaper Editors.

And unfortunately, this federal ruling means that things can only get worse for people of color in broadcasting.

"We're at a time when there is a troubling disconnect between images people see on television and the reality of our multicultural society," laments Kennard, who has seen some of his legacy as FCC chair compromised with this latest court decision. "One way the FCC has tried to bridge this divide is by trying to get the broadcasters to be sensitive to recruiting broadly. This decision says you can't do that, in effect."

Kennard's successor as FCC chair is Michael K. Powell, son of Secretary of State Colin Powell. As an FCC commissioner, Powell expressed skepticism about the effectiveness of employment diversity programs.

Meanwhile, George W. Bush has expressed his opposition to affirmative action programs. The "affirmative access" president will likely appoint judges and officials who will continue to deny space for minorities in broadcasting.

David A. Love is a public interest scholar at the University of Pennsylvania Law School. He contributed to the recently published book, "States of Confinement: Policing, Detention and Prisons" (St. Martin's Press, 2000.) He can be reached at

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