METRO BROADCASTING, INC. v. FCC

Nos. 89-453 and 89-700

METRO BROADCASTING, INC., PETITIONER v. FEDERAL COMMUNICATIONS COMMISSION, et al.

ASTROLINE COMMUNICATIONS COMPANY LIMITED PARTNERSHIP, PETITIONER v. SHURBERG BROADCASTING OF HARTFORD, INC, et al.

on writs of certiorari to the united states court of appeals for the district of columbia circuit

[June 27, 1990]

Justice Stevens, concurring.

Today the Court squarely rejects the proposition that a governmental decision that rests on a racial classification is never permissible except as a remedy for a past wrong. Ante, at 13. I endorse this focus on the future benefit, rather than the remedial justification, of such decisions. ^[n.1]

I remain convinced, of course, that racial or ethnic characteristics provide a relevant basis for disparate treatment only in extremely rare situations and that it is therefore "especially important that the reasons for any such classification be clearly identified and unquestionably legitimate." Fullilove v. Klutznick, 448 U.S. 448, 534-535 (1980) (dissenting opinion). The Court's opinion explains how both elements of that standard are satisfied. Specifically, the reason for the classification — the recognized interest in broadcast diversity — is clearly identified and does not imply any judgment concerning the abilities of owners of different races or the merits of different kinds of programming. Neither the favored nor the disfavored class is stigmatized in any way. ^[n.2] In addition, the Court demonstrates that this case falls within the extremely narrow category of governmental decisions for which racial or ethnic heritage may provide a rational basis for differential treatment. ^[n.3] The public interest in broadcast diversity — like the interest in an integrated police force, ^[n.4] diversity in the composition of a public school faculty ^[n.5] or diversity in the student body of a professional school ^[n.6] — is in my view unquestionably legitimate.

Therefore, I join both the opinion and the judgment of the Court.

---

Notes

1 See City of Richmond v. J.A. Croson, Co., 488 U.S. 469, 511-513 (1989) (Stevens, J., concurring in part and concurring in judgment); Wygant v. Jackson Board of Education, 476 U.S. 267, 313-315 (1986) (Stevens, J., dissenting).

2 Cf. Croson, 488 U.S., at 516-517; Fullilove, 448 U.S., at 545, and n.17.

3 See Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 452-454 (1985) (Stevens, J., concurring) (in examining the "rational basis" for a classification, the "term `rational,' of course, includes a requirement that an impartial lawmaker could logically believe that the classification would serve a legitimate public purpose that transcends the harm to the members of the disadvantaged class"); Michael M. v. Superior Court of Sonoma County, 450 U.S. 464, 497, n.4 (1981) (Stevens, J., dissenting) (discussing the level of scrutiny appropriate in equal protection cases).

4 See Wygant v. Jackson Board of Education, 476 U.S. 267, 314 (1986) (Stevens, J., dissenting).

5 See id., at 313-315. See also Justice O'Connor's opinion concurring in part and concurring in the judgment in this case, recognizing that the "goal of providing `role models' discussed by the courts below should not be confused with the very different goal of promoting racial diversity among the faculty." Id., at 288, n.

6 See Justice Powell's opinion in Regents of University of California v. Bakke, 438 U.S. 265, 311-319 (1978).