dissenting from the denial of rehearing en banc:
Although the Supreme Court has gradually limited governmental affirmative action, applying strict scrutiny first to state and local programs in City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989), and then to federal programs in Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995), neither the Supreme Court nor any other court has ever applied strict scrutiny to programs that require nothing more than recruitment, outreach, self-evaluation, and data collection. Because the panel has done just that, taking Adarand where no court has yet taken it, and because the panel could have easily avoided the issue by granting the Commission’s motion for partial remand of the record, this case involves “a question of exceptional importance” warranting en banc review. Fed. R.App. P. 35(a).
I
“[Njovel” or even “unusual” may well be appropriate descriptions of the Commission’s motion to remand. Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344, 349 (D.C.Cir.1998). But because remand would have mooted this case, thus avoiding the need to decide a major constitutional issue, the panel should have taken the Commission at face value and granted its motion. “If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality ... unless such adjudication is unavoidable.” Spector Motor Serv., Inc. v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 89 L.Ed. 101 (1944).
The Commission’s motion stated that in light of its new Order and Policy Statement issued on February 25, 1998, it would “(1) vacatfe] those portions of the Memorandum Opinion and Order, the Initial Decision of the Administrative Law Judge and the Decision of the Review Board that relate to the EEO issue designated for hearing in this proceeding, and (2) unconditionally grant[] the Church’s applications for renewal of its broadcast licenses at issue here.” Mot. Partial Remand at 1. According to the Commission, this would have “moot[ed] all issues in this case” except the lack of candor issue, id. at 2 — a question which was not, as the Church claims, “inextricably related” to the affirmative action issue, Opp’n Pets. Reh’g and Suggestions for Reh’g In Banc at 5, but which instead turned solely on whether the Church had accurately characterized its own hiring policies. Commission counsel’s subsequent notification to the panel that one Commissioner would not agree to this result in no way undermined the Commission’s commitment to vacate its order.
To be sure, the Commission found the Church’s conduct defective independently of the Church’s Lutheran preference, and the Commission’s EEO requirements will still apply to the Church’s future outreach and self-evaluation efforts. But none of this is relevant in light of the Commission’s declaration that it would vacate all portions of its order dealing with the Church’s EEO violations and unconditionally grant the Church’s license renewal. Were the panel to have remanded, and were the Commission to make an issue of the Church’s compliance in a future enforcement proceeding, nothing would prevent the Church from challenging the constitutionality of the EEO requirements at that time.
I acknowledge that the Commission’s request came well after oral argument took place, and that in some cases we have held that late filing of such motions precludes-remand. See Mississippi River Transmis*501sion Corp. v. FERC, 969 F.2d 1215, 1217 n. 2 (D.C.Cir.1992) (motion filed without request for leave to file two days before oral argument). But late filing made no difference in Steele v. FCC, 770 F.2d 1192 (D.C.Cir.1985), vacated, Steele v. FCC, No. 84-1176 (D.C.Cir. Oct 31, 1985) (en banc), where, as described in Lamprecht v. FCC, this court remanded an affirmative action case to the FCC not only after a panel had issued a decision, but after the full court vacated the panel decision to rehear the case en banc. See 958 F.2d 382, 385 (D.C.Cir.1992) (discussing Steele). In its remand motion in Steele, the Commission “acknowledged that it thought its race- and sex-preference policies contrary to both the Communications Act and the Constitution” and advised the court that it wanted to reconsider those policies. Id.
The panel points out that in Steele the Commission’s motion to remand was supported by the party who had challenged the policy. See Luthern Church-Missouri Synod v. FCC, 154 F.3d 487, 489 (D.C.Cir.1998). However, I know of no authority supporting the proposition that our deeply rooted obligation to avoid unnecessarily adjudicating constitutional questions evaporates simply because the party that brought the case desires a decision on the merits. Nor is such a notion consistent with Supreme Court precedent. For example, in Richardson v. Wright, 405 U.S. 208, 92 S.Ct. 788, 31 L.Ed.2d 151 (1972) (per curiam), the Court, having been notified “[sjhortly before oral argument” that the agency had adopted new regulations, ruled that “the appropriate course is to withhold judicial action pending reprocessing, under the new regulations,” because if petitioner were to prevail, “there will be no need to consider the constitutional claim.” Id. at 209, 92 S.Ct. 788. The Court reached this conclusion “sua sponte,” id. at 212, 92 S.Ct. 788 (Brennan, J., dissenting), suggesting that the Justices gave respondent no opportunity to express its view on the matter prior to remand. Remand would have been equally appropriate here to avoid deciding a major constitutional issue, particularly because the Commission has not just issued a binding order changing its policies, see In re Streamlining Broad. EEO Rule and Policies, 13 F.C.C.R. 6322 ¶3 (1998) (“This action should be considered binding for radio licensees and permittees-”), but also stated its intent to apply the new policies to the Church’s case on remand, thus granting it complete relief on the EEO issue.
II
Turning to the merits, I find nothing in Adarand or any other affirmative action case decided by the Supreme Court that supports the panel’s application of strict scrutiny to the Commission’s EEO regulations. The panel relies on Adarand for the proposition that strict scrutiny applies to all governmental racial classifications, but a careful reading of Adarand demonstrates that the target of strict scrutiny is “any racial classification subjecting [a] person to unequal treatment." 515 U.S. 200, 224, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995) (emphasis added). Not only does the language of Ada-rand make clear that its precise concern is governmental action that “treat[s] people differently because of their race,” id. at 227, 115 S.Ct. 2097; see also id. at 228, 115 S.Ct. 2097 (strict scrutiny applies to “unequal treatment based on race”), but the facts of Adarand presented the Court with a racial classification that squarely produced unequal treatment: Adarand involved a government program that gave financial bonuses to contractors who utilized minority subcontractors, thus directly enhancing the competitive position of minority-owned firms relative to non-minority-owned firms in bidding for subcontracts. See id. at 205-10, 115 S.Ct. 2097.
In each major affirmative action ease discussed in Adarand, moreover, unequal treatment based on race served as the trigger for strict scrutiny. In City of Richmond v. J.A. Croson Co., city policy required prime contractors to subcontract at least 30 percent of the contract award to minority-owned businesses. See 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989). In Wygant v. Jackson Board of Education, a school board used racial preferences in determining which teachers to lay off. See 476 U.S. 267, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986). And in Regents of University of California v. Bakke, a state medical school reserved 16 out of 100 places in the entering class for minority students and evaluated minority applicants *502through a separate process using admissions criteria different from those used for white applicants. See 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978).
Properly read, therefore, Adarand does not require strict judicial scrutiny of all race-conscious measures adopted by the government. Indeed, a vast range of antidiscrimi-nation laws, including Title VII, require public and private entities to be conscious of race not only in outreach and recruitment, but also in hiring and promotion. Surely such laws do not implicate strict scrutiny. What triggers strict scrutiny, then, is not mere race-consciousness, but rather unequal treatment based on race.
In this ease, I am at a loss to understand how the Commission’s regulations give rise to unequal treatment based on race. By their own terms, the regulations require no “use[ ] of race in governmental decisionmaking,” as in Adarand, 515 U.S. at 228, 115 S.Ct. 2097. Instead, they merely require broadcasters to eliminate discriminatory practices, to expand the pool from which they hire, and to keep adequate records. Nothing in the regulations’ outreach provisions, see 47 C.F.R. § 73.2080(c)(2) (1997) (requiring stations to target sources for minority applicants); id. § 73.2080(c)(5) (requiring stations to analyze their efforts to recruit, hire, and promote minorities), either directs stations to hire anyone on the basis of race or requires stations to maintain any specific racial balance. Nor do the regulations confer or withhold benefits upon anyone on racial grounds. The regulations simply require that “licensees make efforts to recruit minority and women applicants so that they will be ensured access to the hiring process.” In re Benchmark Radio Acquisition Fund IV Limited Partnership, 11 F.C.C.R. 8547 ¶3 (1996). Indeed, nothing in the regulations prevents stations from evaluating job applicants solely on the basis of individual merit. At least one other court has characterized such outreach programs as race-neutral. See Peightal v. Metropolitan Dade County, 26 F.3d 1545, 1557-58 (11th Cir.1994) (describing school recruitment programs targeted at minorities and outreach programs led by minority employees as race-neutral).
The panel responds by pointing out that the regulations in Adarand, like the Commission’s regulations here, “did not require or obligate” private entities to adopt a racial preference, but merely “provided a financial incentive to bidding contractors to grant such a preference.” 154 F.3d at 491. “Nonetheless,” according to the panel, “the Supreme Court treated the regulations as a racial classification, and did not even pause to consider the suggestion that the absence of a compelled racial preference makes strict scrutiny inapposite.” Id. In Adarand, however, the core of the equal protection challenge was not that the system of bonuses provided an incentive for prime contractors to grant a racial preference in subcontracting, but that the bonuses directly put minority-owned subcontractors in a more competitive bidding position than non-minority-owned subcontractors. Adarand would control this case if the Commission’s regulations put minority job applicants in a better position than non-minority applicants. But the regulations do no such thing. Indeed, they do not even offer incentives for licensees to prefer minority over non-minority job applicants. Stations with inadequate outreach programs cannot protect themselves from enforcement actions by preferring minorities in order to meet the 50% parity goal. See In re Kelly Communications, Inc., 12 F.C.C.R. 17,868 ¶¶ 11-13 (1997). And stations with adequate outreach programs face no sanctions for failing to reach specific numerical levels of minority hiring. See In re Louisiana Broadcast Stations, 7 F.C.C.R. 1503 ¶¶ 16-19 (1992) (holding that station complied with EEO rule based on its minority recruitment efforts despite failing to hire any minorities); In re Miami Broadcast Stations, 5 F.C.C.R. 4893 ¶¶ 13-17 (1990) (holding that station complied with EEO rule despite statistical disparity between new minority hires and minorities in local labor force, and declaring that “failing to meet the Commission’s processing guidelines does not in and of itself demonstrate the inadequacy of a licensee’s EEO efforts. The Commission instead focuses on a station’s overall efforts to recruit, hire and promote minorities.”) (citation omitted). Because minority hiring is neither necessary nor sufficient for a finding *503of compliance with the Commission’s regulations, I find it difficult to understand how the panel could have concluded that the regulations “indisputably” encourage licensees to use racial hiring preferences. Simply put, the regulations here do not produce the kind of direct discriminatory treatment that occurred in Adarand, Croson, Wygant, or Bakke.
All but conceding that the regulations by their terms mandate no hiring preferences, the panel, pointing to the requirement that stations evaluate their employment profile against the availability of women and minorities in their recruiting areas, see 47 C.F.R. § 73.2080(c)(3), insists that the EEO regulations “certainly influence ultimate hiring decisions.” Lutheran Church-Missouri, 141 F.3d at 351. But nothing in the record supports this assumption; indeed, the Church does not even claim that the regulations “influence” its hiring decisions.
The panel says that because “evidence of actual discrimination would not be required before applying strict scrutiny” in cases involving racial quotas, “there is no logical reason why it should be required here.” 154 F.3d at 492. While it is certainly true that courts have not required evidence of discrimination before applying strict scrutiny in quota cases, the reason is not that they view it as irrelevant or unnecessary, but rather that in such cases the connection between the regulatory requirements and the resulting unequal treatment has always been so obvious and well-documented that an overt evidentia-ry requirement would be superfluous. See, e.g., Croson, 488 U.S. at 481-83, 109 S.Ct. 706 (documenting the differential treatment of minority versus non-minority subcontractors under Richmond’s set-aside requirement); Wygant, 476 U.S. at 270-72, 106 S.Ct. 1842 (documenting the differential treatment of minority versus non-minority teachers under the Jackson Board’s layoff policy); Bakke, 438 U.S. at 272-78, 98 S.Ct. 2733 (documenting the differential treatment of minority versus non-minority applicants under the Davis medical school’s racial quota). Given the evidence of discriminatory treatment in Croson, Wygant, and Bakke, I do not agree that requiring evidence of discrimination in this case would “turn equal protection analysis inside out.” 154 F.3d 492. Den. Reh’g at 9. I know of no equal protection case in which a court has shifted the burden of justifying a regulatory scheme to the government without first determining that the scheme has actually effected some form of unequal treatment. Where, as here, the existence of discriminatory treatment is far from obvious, we should insist on something more than unsupported speculation about the effect of challenged regulations before subjecting them to strict scrutiny.
I respectfully dissent from the denial of the suggestions for rehearing en banc.