United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 29, 2000 Decided January 16, 2001
No. 00-1094
MD/DC/DE Broadcasters Association, et al.,
Petitioners
v.
Federal Communications Commission and
United States of America,
Respondents
Minority Media and Telecommunications Council, et al.,
Intervenors
Consolidated with
00-1198
On Petitions for Review of an Order of the
Federal Communications Commission
Barry H. Gottfried argued the cause for petitioners State
Broadcasters Associations. With him on the briefs were
Richard R. Zaragoza and Kathryn R. Schmeltzer. David D.
Oxenford, Jr. entered an appearance.
Shelby D. Green argued the cause and filed the briefs for
petitioner Office of Communication, Inc., United Church of
Christ.
Christopher J. Wright, General Counsel, Federal Commu-
nications Commission, argued the cause for respondents.
With him on the brief were Daniel M. Armstrong, Associate
General Counsel, C. Grey Pash, Jr., Counsel, Bill L. Lee,
Assistant Attorney General, U.S. Department of Justice, and
Lisa W. Edwards, Attorney.
David Earl Honig, Elliot M. Mincberg, Frederick C. Schaf-
rick and Thomas J. Mikula were on the brief for intervenors
Minority Media and Telecommunications Council, et al.
Angela J. Campbell was on the brief for intervenor Nation-
al Organization for Women, et al.
Tom W. Davidson, Daniel L. Brenner, Neal M. Goldberg,
Michael S. Schooler, David L. Nicoll, Dominique T. Bravo,
Richard B. Nettler and Charles A. Hunnicutt were on the
brief for amici curiae Radio One, Inc. et al. Thomas P.
Powers and Anthony T. Pierce entered appearances.
Julie Nepveu and Theodore C. Whitehouse were on the
brief for amici curiae The Leadership Conference on Civil
Rights and National Council of the Churches of Christ.
Andrew J. Schwartzman entered an appearance.
Christopher M. Curran and Eduardo Pena were on the
brief for amicus curiae Congressional Black Caucus.
Before: Ginsburg, Sentelle and Henderson, Circuit
Judges.
Opinion for the Court filed by Circuit Judge Ginsburg.
Ginsburg, Circuit Judge: Fifty state broadcasters associa-
tions (Broadcasters) petition for review of an Equal Employ-
ment Opportunity (EEO) rule promulgated by the Federal
Communications Commission. The Broadcasters argue that
the rule violates: (1) the Administrative Procedure Act by
creating an arbitrary and capricious reporting burden; and
(2) the equal protection component of the Due Process Clause
of the Fifth Amendment to the Constitution of the United
States by granting preferences to women and minorities.
The United Church of Christ (UCC) petitions for review of
the same EEO rule, arguing that it violates the APA because,
without giving a reasoned explanation, the agency changed its
policy of requiring broadcasters to recruit women and minori-
ties.
We hold first that the Broadcasters fail to substantiate
their claim that the rule is arbitrary and capricious. We
further hold that the rule does put official pressure upon
broadcasters to recruit minority candidates, thus creating a
race-based classification that is not narrowly tailored to sup-
port a compelling governmental interest and is therefore
unconstitutional. Because we find that the unconstitutional
portion of the rule is not severable, we vacate the rule in its
entirety and dismiss the petition of the UCC as moot.
I. Background
The Federal Communications Commission draws its au-
thority to issue EEO rules from the Communications Act of
1934, 47 U.S.C. s 151 et seq., which authorizes the Commis-
sion, in considering whether to grant a license or renewal to a
broadcast station, to determine "whether the public interest,
convenience, and necessity will be served by the granting of
such application." Id. at s 309(a). In 1969 the Commission
determined that it would not serve the public interest to
grant licenses to broadcasters with discriminatory hiring
practices. The Commission therefore prohibited licensees
from discriminating in employment on the basis of race or sex
and required them to establish EEO programs. See Petition
for Rulemaking to Require Broadcast Licensees to Show
Nondiscrimination in Their Employment Practices, 18
F.C.C. 2d 240 (1969). In 1992 the Congress prohibited the
Commission from "revis[ing] ... the regulations concerning
equal employment opportunity ... as such regulations apply
to television broadcast station licensees." 47 U.S.C.
s 334(a)(1).
The regulations then in effect required all broadcast licen-
sees -- both radio and television stations -- not only to
refrain from invidious discrimination but also to "establish,
maintain, and carry out a positive continuing program of
specific practices designed to ensure equal opportunity and
nondiscrimination in every aspect of station employment poli-
cy and practice." 47 C.F.R. s 73.2080(b). The regulations
required stations to seek out sources likely to refer female
and minority applicants for employment, to track the source
of each referral, and to record the race and sex of each
applicant and of each person hired. If these data indicated
that a station employed a lower percentage of women and
minorities than were employed in the local workforce, then
the Commission would take that into account in determining
whether to renew the station's license.
In Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344
(D.C. Cir. 1998), we held that the Commission's EEO rule
was an unconstitutional race-based classification. (The ques-
tion whether the rule was an unconstitutional sex-based clas-
sification was not before the court.) We held first that the
rule was subject to strict constitutional scrutiny because it
was "built on the notion that stations should aspire to a
workforce that attains, or at least approaches, proportional
[racial] representation" and "oblige[d] stations to grant some
degree of preference to minorities in hiring." Id. at 352-53.
We further held that the Commission's sole rationale for its
rule, promoting "diversity of programming," was not a com-
pelling governmental justification; the Commission had ex-
pressly abjured preventing employment discrimination as a
goal of its EEO regulation. Id. at 354-55. Accordingly, we
remanded the matter to the Commission to determine wheth-
er it had a compelling governmental interest (such as the
Justice Department had urged as an amicus curiae, in pre-
venting discrimination) to support its regulation of employ-
ment practices in the broadcast industry. Id. at 356.
On remand, the Commission suspended the EEO rule in its
entirety and issued a Notice of Proposed Rulemaking solicit-
ing comments on a draft replacement rule. Review of the
Commission's Broadcast Equal Employment Opportunity
Rules and Policies, 13 F.C.C.R. 23004 (1999). Following the
comment period the Commission concluded that word-of-
mouth recruiting was the single greatest barrier to equal
employment in the broadcast industry because it tends to
replicate the current composition of the workforce. Accord-
ingly, the Commission issued a new EEO rule requiring
licensees to achieve a "broad outreach" in their recruiting
efforts. Review of the Commission's Broadcast Equal Em-
ployment Opportunity Rules and Policies, 15 F.C.C.R. 2329,
p 3 (2000) (R&O). To this end, the new EEO rule states that
a licensee must make a good faith effort to disseminate widely
any information about job openings and, in order to "afford[ ]
broadcasters flexibility in designing their EEO programs,"
the rule allows them to select either of two options entailing
"supplemental measures" for accomplishing that goal. R&O
at p 78. Under Option A the licensee (if it has more than ten
employees) must undertake four approved recruitment initia-
tives in each two-year period; qualifying initiatives are speci-
fied by the Commission in some detail, as can be seen from
the list reproduced in the margin.* A licensee that selects
Option A need not report the race and sex of job applicants.
__________
* (i) Participation in at least four job fairs ...;
(ii) Hosting of at least one job fair;
(iii) Co-sponsoring at least one job fair with organizations ...
whose membership includes substantial participation of
women and minorities;
(iv) Participation in at least four events sponsored by organi-
zations representing groups ... interested in broadcast
employment ...;
(v) Establishment of an internship program designed to
assist members of the community to acquire skills needed
for broadcast employment;
(vi) Participation in job banks, internet programs, and other
programs designed to promote outreach generally ...;
(vii) Participation in scholarship programs designed to assist
students interested in pursuing a career in broadcasting;
(viii) Establishment of training programs designed to enable
station personnel to acquire skills that could qualify them
for higher level positions;
(ix) Establishment of a mentoring program for station person-
nel;
Under Option B the licensee may design its own outreach
program but must report the race and sex of each job
applicant and the source by which the applicant was referred
to the station. See 47 C.F.R. s 73.2080(d).
In addition, the new EEO rule reinstates the requirement
that each licensee file an Annual Employment Report. See
47 C.F.R. s 73.2080(i). That report, the filing of which the
Commission had suspended following the decision in Luther-
an Church, requires the station to identify each employee by
race and sex. The Commission stated that it would use the
data from the Annual Employment Reports only to monitor
industry trends and not (as it had under the prior EEO rule)
to screen renewal applications or to assess a licensee's compli-
ance with its EEO obligations. R&O at p p 6, 225-226.
The United Church of Christ filed a petition to review the
new EEO rule in the Second Circuit. The Broadcasters filed
a petition for review in this court. The Second Circuit
transferred the UCC's petition here and the two cases were
consolidated.
II. Analysis
The Broadcasters argue that the new EEO rule favors
women and minorities and, in so doing, is arbitrary and
__________
(x) Participation in at least four events or programs spon-
sored by educational institutions relating to career oppor-
tunities in broadcasting;
(xi) Sponsorship of at least two events ... designed to inform
and educate members of the public as to employment
opportunities in broadcasting;
(xii) Listing of each upper-level category opening in a job bank
or newsletter of media trade groups whose membership
includes substantial participation of women and minori-
ties;
(xiii) Participation in other activities ... reasonably calculated
to further the goal of disseminating information as to
employment opportunities in broadcasting to job candi-
dates who might otherwise be unaware of such opportuni-
ties.
47 C.F.R. s 2080(c)(2).
capricious as well as unconstitutional. The UCC argues that
the new rule is arbitrary and capricious because the Commis-
sion departed, without explanation, from its prior policy of
requiring broadcasters to recruit women and minorities.
A. The Broadcasters' statutory claim
The Broadcasters argue the new rule is arbitrary and
capricious for two reasons, neither of which is persuasive.
The Broadcasters first attack the Commission's claim, in the
preamble to the new rule, that the rule will promote "pro-
gramming diversity," R&O at p 4; they point out that this
court questioned the legitimacy of such a goal in Lutheran
Church. See 141 F.3d at 354 ("We doubt ... that the
Constitution permits the government to take account of ra-
cially based differences [in tastes or opinions], much less
encourage them"). On review, however, the Commission
acknowledges the constitutional cloud over "programming
diversity" as a justification for making race a consideration in
employment and states that its primary and assertedly suffi-
cient goal in issuing the EEO rule was to prevent invidious
discrimination. The preamble to the rule supports the Com-
mission's point. See R&O at p 4 (noting that non-
discrimination goals "would be sufficient in themselves to
warrant" the rule). The Broadcasters' attack on the rule as
an effort to promote diversity in programming is beside the
point, therefore.
The Broadcasters next contend that the new EEO rule
arbitrarily and capriciously increases the "regulatory burden"
on stations: Under the old rule "broadcasters filed only nine
reports in each eight year license term, while the [new
regulations] require broadcast licensees to prepare and file
twenty-one reports during a license term." The Broadcasters
also argue that the Commission acted arbitrarily and capri-
ciously in eliminating the exemption from filing for stations in
areas where minorities are a small percentage of the work-
force. In response, the Commission states first that despite
the increased number of reports, the time and effort required
to complete them has decreased. In their reply the Broad-
casters do not disagree and we take the Commission's point
as conceded. Second, the Commission reasonably explains
that it eliminated the filing exemption in areas with a low
percentage of minority group members in the workforce
because it no longer takes enforcement action against broad-
casters that indicate in their Annual Reports that they have a
"low" percentage of minority employees. The Commission's
explanation is reasonable; hence the Broadcasters have not
shown that the new rule creates an arbitrary and capricious
regulatory burden.
B. The Broadcasters' constitutional challenge
The Broadcasters argue next that the new EEO rule puts
official pressure on them to favor minorities in the hiring
process. This pressure, they claim, violates the Fifth Amend-
ment because it employs a race-based classification that does
not withstand strict scrutiny.
1. Does the rule require recruitment or hiring of women
and minorities?
The Broadcasters argue that the new EEO rule requires
them to recruit and to hire women and minorities. Because
we conclude that the rule does create pressure to recruit
women and minorities, which pressure ultimately does not
withstand constitutional review, we do not reach the question
whether the rule creates pressure to hire those women and
minorities who are recruited.
For purposes of their constitutional challenge, the Broad-
casters focus upon application of the EEO rule to minorities.
The Broadcasters argue that both Option A and Option B of
the new rule pressure them to recruit minorities. In fact,
however, only Option B actually seems to create such pres-
sure. Under Option A, a licensee is not required to report
the race or sex of job applicants or interviewees. Instead,
the licensee selects from a list of 13 types of recruitment
measures, only two of which pay special attention to women
and minorities. (Those two measures provide that a licensee
may "co-sponsor[ ] at least one job fair with," or list "each
upper-level category opening in a job bank or newsletter of,"
organizations "whose membership includes substantial partic-
ipation of women and minorities." 47 C.F.R. s 73.2080(c)(2)
(iii) and (xii)). Because, as the Commission points out, licen-
sees remain free under Option A to select recruitment mea-
sures that do not place a special emphasis upon the presence
of women and minorities in the target audience, we do not
believe the Broadcasters are meaningfully pressured under
Option A to recruit women and minorities.
Option B, however, as FCC Commissioner Furchtgott-
Roth pointed out in his dissent from the EEO rule, clearly
does create pressure to focus recruiting efforts upon women
and minorities in order to induce more applications from
those groups. Licensees selecting Option B must report the
race, sex, and source of referral for each applicant. See 47
C.F.R. s 73.2080(d)(1). The Commission made clear, more-
over, in adopting the rule, that "[i]f the data collected does
[sic] not confirm that notifications are reaching the entire
community, we expect a broadcaster to modify its program as
warranted so that it is more inclusive." R&O at p 104. In
determining whether recruitment efforts have reached the
"entire community," the Commission considers the number of
women and minorities in the applicant pool. If a licensee
reports "few or no" women and minorities in its applicant
pool, then the Commission will investigate the broadcaster's
recruitment efforts. Id. at p 120.
A regulatory agency may be able to put pressure upon a
regulated firm in a number of ways, some more subtle than
others. The Commission in particular has a long history of
employing:
a variety of sub silentio pressures and "raised eyebrow"
regulation of program content .... The practice of
forwarding viewer or listener complaints to the broad-
caster with a request for a formal response to the FCC,
the prominent speech or statement by a Commissioner or
Executive official, the issuance of notices of inquiry ...
all serve as means for communicating official pressures
to the licensee.
Community-Service Broadcasting of Mid-America, Inc. v.
FCC, 593 F.2d 1102, 1116 (D.C. Cir. 1978) (en banc); cf.
Writers Guild of America v. FCC, 609 F.2d 355, 365-66 (9th
Cir. 1979) (noting that "the line between permissible regulato-
ry activity and impermissible 'raised eyebrow' harassment of
vulnerable licensees is ... exceedingly vague").
Under Option B the Commission promises to investigate
any licensee that reports "few or no" applications from wom-
en or minorities. Investigation by the licensing authority is a
powerful threat, almost guaranteed to induce the desired
conduct. See Chamber of Commerce v. Department of Labor,
174 F.3d 206, 210 (D.C. Cir. 1999) (noting that agency "is
intentionally using the leverage it has by virtue solely of its
power to inspect. The Directive is therefore the practical
equivalent of a rule that obliges an employer to comply or to
suffer the consequences; the voluntary form of the rule is but
a veil for the threat it obscures"); see also barry cole & mal
oettinger, reluctant regulators 213 (1978) (investigatory
hearing before FCC "is considered by both key staff people
and most commissioners almost as drastic as taking a license
away").
Indeed, the Commission's focus upon the race and sex of
applicants belies its statement -- or so a licensee reasonably
might (and prudently would) conclude -- that its only goal is
that licensees recruit with a "broad outreach." See Lutheran
Church, 141 F.3d at 353. Were that the Commission's only
goal, then it would scrutinize the licensee's outreach efforts,
not the job applications those efforts generate. Measuring
outputs to determine whether readily measurable inputs were
used is more than self-evidently illogical; it is evidence that
the agency with life and death power over the licensee is
interested in results, not process, and is determined to get
them. As a consequence, the threat of being investigated
creates an even more powerful incentive for licensees to focus
their recruiting efforts upon women and minorities, at least
until those groups generate a safe proportion of the licensee's
job applications.*
__________
* Significantly, the Commission does not argue that Option B
creates no pressure to recruit women and minorities because a
licensee could always elect Option A. That argument would be
2. The level of scrutiny
With respect to minorities, the Broadcasters argue that the
court should give strict constitutional scrutiny to the recruit-
ing requirement. The Commission's position is that, unlike
affirmative action in hiring, "affirmative outreach" in recruit-
ment does not implicate equal protection concerns because it
merely expands the applicant pool, and an individual applicant
has no right to compete against fewer rivals for a job.
In Adarand Constructors, Inc. v. Pena, the Supreme Court
held that "any person, of whatever race, has the right to
demand that any governmental actor subject to the Constitu-
tion justify any racial classification subjecting that person to
unequal treatment under the strictest judicial scrutiny." 515
U.S. 200, 224 (1995). The question before the court today,
therefore, is whether a government mandate for recruitment
targeted at minorities constitutes a "racial classification" that
subjects persons of different races to "unequal treatment."
We expressly reserved this question in Lutheran Church-
Missouri Synod v. FCC, 154 F.3d 487, 492 (1998), denying
reh'g in Lutheran Church, 141 F.3d 344 ("Whether the
government can encourage -- or even require -- an outreach
program specifically targeted on minorities is, of course, a
question we need not decide").
Among our sister circuits only one has heretofore consid-
ered the level of constitutional scrutiny applicable to affirma-
tive outreach, and even that decision has since been vacated.
See Allen v. Alabama State Board of Education, 164 F.3d
1347 (11th Cir. 1999), vacated by 216 F.3d 1263 (11th Cir.
2000); cf. Safeco Ins. Co. of America v. City of White House,
191 F.3d 675, 692 (6th Cir. 1999) ("Outreach efforts may or
may not require strict scrutiny"). In Allen the Eleventh
Circuit held that "where the government does not exclude
persons from benefits based on race, but chooses to under-
take outreach efforts to persons of one race broadening the
pool of applicants, but disadvantaging no one, strict scrutiny
is generally inapplicable." Id. at 1352; see also Sussman v.
__________
inconsistent with the fundamental structure of the rule. See Part
II.B.4.
Tanoue, 39 F. Supp. 2d 13, 27 (D.D.C. 1999) (noting that
program "does not create preferences in hiring based on race
or gender, and therefore need not be examined under strict
scrutiny"). In a footnote, the Eleventh Circuit observed that
there is some suggestion in Adarand "that all race-based
actions, whether or not they lead to unequal treatment, are
subject to strict scrutiny. See Adarand, 515 U.S. at 227.
Courts, however, have not accepted this broad reading of
Adarand." 164 F.3d 1352 n.2 (citing Lutheran Church; Raso
v. Lago, 135 F.3d 11, 16 (1st Cir. 1998); Monteray Mechani-
cal Co. v. Wilson, 125 F.3d 702, 711 (9th Cir. 1997)).
We may assume, with the Eleventh Circuit, that Adarand
requires strict scrutiny only of governmental actions that lead
to people being treated unequally on the basis of their race.
We nonetheless disagree with that court's (short-lived) con-
clusion that preferential recruiting "disadvantag[es] no one."
164 F.3d at 1352.
Under Option B the Commission has compelled broadcast-
ers to redirect their necessarily finite recruiting resources so
as to generate a larger percentage of applications from
minority candidates.* As a result, some prospective non-
minority applicants who would have learned of job opportuni-
__________
* Recruiting expenditures are fixed in the short run; even if an
employer increases its recruiting budget in response to the
Commission's EEO rule, it then must follow the Commission's
directive in determining how to allocate those funds. Here, the
purpose of the rule is to raise the percentage of women and
minorities in the applicant pool and, thereby, increase their
chances of being hired. See, e.g., R&O at p 164 ("an increase in
the number of women and minorities employed would indicate
that our EEO requirements are effective in ensuring outreach").
If an employer believed that it could reach the maximum number
of good prospects with a display ad in the local newspaper, but
they would likely be non-minorities, then it nonetheless would
choose to run a smaller newspaper ad and use its remaining funds
to run an ad in a publication targeted at minorities. This
redirection of resources hurts those prospective non-minority
applicants who would respond to the display ad but not to the
smaller ad, and it does so only because of their race.
ties but for the Commission's directive now will be deprived
of an opportunity to compete simply because of their race.
While the Commission's intentions are to benefit minorities
rather than to disadvantage non-minorities, Adarand clearly
holds that the standard of constitutional review does not turn
upon the race of those benefitted by a particular government
action. See Adarand, 515 U.S. at 224.
The Commission has designed a rule under which non-
minorities are less likely to receive notification of job open-
ings solely because of their race; that the most qualified
applicant from among those recruited will presumably get the
job does not mean that people are being treated equally--that
is, without regard to their race--in the qualifying round. The
new rule is therefore subject to strict scrutiny for compliance
with the constitutional requirement that all citizens receive
equal protection under the law.
3. Does the rule survive strict scrutiny?
For a government action to withstand strict scrutiny it
must "serve a compelling governmental interest, and must be
narrowly tailored to further that interest." Adarand, 515
U.S. at 235. The Broadcasters fault the new EEO regula-
tions in both respects.
The matter of a compelling governmental interest is some-
what vexed. Echoing their earlier claim that the new rule is
arbitrary and capricious because the Commission lacks a
proper goal, the Broadcasters again focus primarily upon the
Commission's secondary goal of promoting "programming
diversity," which we rejected in Lutheran Church. With
respect to the Commission's primary motivation, the Broad-
casters offer only the conclusory assertion that "deterring
imaginable future discrimination is not a compelling govern-
mental interest." The Government responds by asserting
that it has a compelling interest both in remedying the effects
of past discrimination and in preventing future discrimination
in the distribution of public benefits. See, e.g., Roberts v.
United States Jaycees, 468 U.S. 609, 628 (1984). But the
Government's remedial interest is compelling only with re-
spect to "identified discrimination," see Shaw v. Hunt, 517
U.S. 899, 909 (1996), and it is far from clear that future
employment in the broadcast industry is a public benefit for
which the Government is constitutionally responsible. Cf.
Burton v. Wilmington Parking Authority, 365 U.S. 715, 724
(1961) (holding that racial discrimination by private restau-
rant located in public parking garage "indicates that degree
of state participation and involvement which it was the design
of the Fourteenth Amendment to condemn").
We need not resolve the issue of a compelling governmen-
tal interest in preventing discrimination, however, because
the Broadcasters argue convincingly that the new EEO rule
is not narrowly tailored to further that interest. First,
Option B places pressure upon each broadcaster to recruit
minorities without a predicate finding that the particular
broadcaster discriminated in the past or reasonably could be
expected to do so in the future. Quite apart from the
question of a compelling governmental interest, such a sweep-
ing requirement is the antithesis of rule narrowly tailored to
meet a real problem. Cf., e.g., City of Richmond v. J.A.
Croson Co., 488 U.S. 469, 508 (1989) (noting that City's
"interest in avoiding the bureaucratic effort necessary to
tailor remedial relief ... cannot justify a rigid line drawn on
the basis of a suspect classification").
The requirement in Option B that licensees report the race
of each applicant is another departure from the norm of
narrow tailoring and a corollary, no doubt, of the Commis-
sion's true interest in results rather than mere outreach.
The race of each job applicant is relevant to the prevention of
discrimination only if the Commission assumes that minority
groups will respond to non-discriminatory recruitment efforts
in some predetermined ratio, such as in proportion to their
percentage representation in the local workforce. Any such
assumption stands in direct opposition to the guarantee of
equal protection, however. See Lutheran Church, 141 F.3d
at 352 (noting that Commission's claim that its goal of propor-
tional representation was equivalent to goal of nondiscrimina-
tion "presupposes that non-discriminatory treatment typically
will result in proportional representation in a station's work-
force. The Commission provides no support for this dubious
proposition"); Metro Broadcasting, Inc. v. FCC, 497 U.S. 547,
602 (1990) (O'Connor, J., dissenting) ("At the heart of the
Constitution's guarantee of equal protection lies the simple
command that the Government must treat citizens as individ-
uals, not as simply components of a racial, religious, sexual, or
national class"). The racial data required by Option B simply
are not probative on the question of a licensee's efforts to
achieve "broad outreach," much less narrowly tailored to
further the Commission's stated goal of non-discrimination in
the broadcast industry. Because Option B of the new EEO
rule is not narrowly tailored, it does not withstand strict
scrutiny, and we hold that it violates the equal protection
component of the Due Process Clause of the Fifth Amend-
ment.
4. Severability
In light of our holding that Option B is unconstitutional
with respect to minorities, we must address the Commission's
request that we sever the unconstitutional aspects and leave
the rest of the new EEO rule in place. Whether the offend-
ing portion of a regulation is severable depends upon the
intent of the agency and upon whether the remainder of the
regulation could function sensibly without the stricken provi-
sion. K-Mart Corp. v. Cartier, Inc., 486 U.S. 281, 294 (1988).
Here, the Commission clearly intends that the regulation be
treated as severable, to the extent possible, for it said so in
adopting the regulation. R&O at p 232. The question for the
court, then, is whether the balance of the rule can function
independently if shorn of its unconstitutional aspects.
The core of the rule, by Commission design, is to provide
broadcasters with two alternatives. As the Commission ex-
plained in the report adopting the rule, its goal is to "ensur[e]
broad outreach while affording broadcasters flexibility in
designing their EEO programs" and, to this end, the rule
obligates broadcasters to "comply with one of ... two out-
reach options." R&O at p 78. The Commission understand-
ably, therefore, did not consider the loss of flexibility that
eliminating the "alternative recruitment program" in Option
B would entail. Presumably, however, the Commission would
not have created Option B if it believed that Option A by
itself was sufficient to achieve the Commission's goals. In
any event, the court cannot by severing one alternative make
the other mandatory; to do so would undercut the whole
structure of the rule.
Nor can the court simply cut out all references to "minori-
ties" in the regulation, thereby leaving the regulation intact
with respect to women. True, a classification imposing un-
equal treatment based upon sex is subject to intermediate
rather than to strict scrutiny, see United States v. Virginia,
518 U.S. 515, 533 (1996) (classification based upon sex must
serve "important government objectives" and must be "sub-
stantially related to the achievement of those objectives"), and
therefore might survive where the same regulation fails with
respect to minorities. Nothing in the rule, however, indicates
that the Commission would or sensibly could grant a greater
preference to white women than to minority men. On the
contrary, when we held in Lutheran Church that the Com-
mission's prior EEO rule was unconstitutional with respect to
minorities, the Commission suspended the rule with respect
to women as well, rather than allow even an interim period in
which women but not minorities got preferential treatment.
Thereafter the Commission issued the new rule, again treat-
ing women and minorities alike. At every turn, therefore, we
see the Commission treating women and minorities identical-
ly.
In these circumstances, it is clear that severing all refer-
ences to minorities would severely distort the Commission's
program and produce a rule strikingly different from any the
Commission has ever considered or promulgated in the
lengthy course of these proceedings. Accordingly, we hold
that the unconstitutional provisions of the rule cannot be
severed and the entire rule must be vacated.
III. Conclusion
For the reasons stated in the opinion, the Broadcasters'
petition for review is granted and the rule is vacated in its
entirety. In view of the foregoing, the petition of the UCC is
denied as moot.
So ordered.