A roundtable of top experts and civil rights advocates held during MMTC’s recent Access to Capital and Telecom Policy Conference underscores the continued need for aggressive measures to improve minority participation in the media and telecom industries. The roundtable, titled “How the Nation’s Civil Rights Organizations Can Win the Restoration of Minority Media and Telecom Ownership” and moderated by veteran communications lawyer and social justice advocate S. Jenell Trigg, evaluated the impact of recent Supreme Court decisions on efforts to achieve diversity of ownership and inclusion in the media and telecommunications industries.
The panel focused primarily on the impact of Fisher v. University of Texas, in which MMTC, along with a group of former FCC commissioners and general counsel, filed an amici curiae brief in support of the University of Texas’ admissions program. In a surprising 7-1 decision, the Court vacated and remanded the Fifth Circuit’s decision in the Fisher case, effectively maintaining the status quo for affirmative action cases. While some constitutional experts consider the ruling to be a small victory for affirmative action, most note that it is more in the nature of a temporary respite until the case comes back before the Court in a few years.
Hon. Catherine Sandoval, Commissioner of the California Public Utilities Commission, provided an overview of the relevance of Fisher to communications, based on the history of how efforts to achieve race diversity in higher education are linked to the use of race to achieve diversity in the communications industries. She recommended that advocates consider the requirements of Prometheus I & II and the Administrative Procedure Act when determining the impact on minorities and women of repealing or modifying rules and evaluating the impact of Fisher on the FCC-regulated industries. She noted that in Promethus I, the DC Third Circuit Court admonished the FCC for repealing the failed station solicitation rule by declaring the decision to be arbitrary and capricious because the FCC didn’t consider the impact of the repeal on minorities.
Overall, panelists agreed that the overarching impact of the Fisher decision, along with the Supreme Court’s recent decision on voting rights in Shelby County v. Holder, is to further diminish the use of race classifications and create new barriers or potential barriers to new minority entrants by reaffirming the “compelling governmental interest” requirement for advancing diversity in education, as well as in media and telecommunications.
Jason Lagria, Senior Staff Attorney at the Asian American Justice Center, noted that the use of diversity as an ongoing governmental interest in higher education has hopeful ramifications, but that Justice Scalia’s statement regarding the Voting Rights Act as a “perpetration of racial entitlements” shows that the court is clearly hostile to the use of racial classifications of any kind.
Janaye Ingram, DC Bureau Chief of the National Action Network, stated that the fact the Supreme Court even accepted review of the Fisher case shows that it wants to eradicate affirmative action in higher education. Indeed, she noted that some commentators have argued that, but for Justice Kagan’s recusal on the Fisher case, the outcome may have been different.
While Hilary Shelton, Director of the Washington Bureau of the NAACP expressed relief that the court still recognizes race as a compelling interest, reinforcing the ability of government actors like the FCC to continue to craft race-based programs, he cautioned that remedies still need to be narrowly tailored.
Trigg noted that there have been three cases in 10 years on the subject of diversity in education, indicating that the Court is in search of an opportunity to change the existing precedent. She also referenced Justice Thomas’ dissent in Fisher, stating that higher education is not a compelling governmental interest except to remedy past discrimination for which the government is responsible, or to protect national security. Trigg pointed to examples of discrimination in the areas of banking and access to capital, as well as the natural disasters like Hurricane Katrina, to counter Thomas’ narrow reading.
Despite the Court’s decisions, Carrie Gan, Executive Director of the Center for Asian Americans United for Self Empowerment, emphasized the importance of grassroots efforts to foster diversity and encourage ethnic programming.
To see the full discussion of the Civil Rights Roundtable, visit http://mmtconline.org/2013-access-to-capital-videos/.
Dorrissa D. Griffin, Esq., serves as Chief of Staff and Staff Counsel for the Minority Media & Telecommunications Council. She works to advance the civil rights of minorities and women in the nation’s media and telecommunications industries. Dorrissa is a graduate of Florida A&M University College of Law, a member of the Florida Bar, and awaiting membership to the DC Bar.