THE Supreme Court has once again taken up the divisive question of when government may use racial preferences in awarding benefits. This time the court will consider use of a race preference by the Federal Communications Commission in granting licenses for new radio and television stations. The court has ordered expedited briefing, with oral argument expected in early spring. The decision to hear this case surprised most observers, as has the Justice Department's entry into the case in opposition to the FCC. The FCC's race preference has not been controversial. It applies only to the few occasions in which new station licenses are available. Even then it is only a secondary criterion in the decisionmaking process.
The FCC's most important criteria in choosing from among competing applicants are lack of ownership of other mass communications media and willingness to work at the proposed station. Only if those standards do not yield a winner does the FCC employ additional criteria, in approximately this order of importance: local ownership, minority ownership, local civic activities, female ownership, and broadcast experience.
Although race of the applicant is not one of the FCC's most important criteria, the Supreme Court's decision about the preference is likely to be profoundly important. The FCC's preference falls into what has been a black hole in the court's jurisprudence. Thus far, the justices have managed to agree, at least with respect to state and local programs, that race-based preferences must serve a ``compelling government interest.''
They serve such an interest, the court has held, if they are designed to remedy specific instances of past discrimination. Atoning for widespread past discrimination within society is not a compelling government interest. Are there any acceptable rationales between these two extremes, and what those might be? These are questions that have thus far left the court hopelessly fragmented.
The FCC case may finally provide clear answers to those questions. The FCC has never explained its race preference either as a remedy for specific instances of past discrimination or as restitution for society's misdeeds in general. Rather, it argues that the preference increases diversity in the ownership of broadcast media. As the FCC points out, minorities even now own fewer than 3 percent of the nation's broadcast stations.
Opponents of the FCC's preference, including the Department of Justice, attempt to fit the preference into a mold that has been rejected by the Supreme Court. They compare the preference to minority set-aside programs, once used to award contracts by local governments. The Supreme Court held such programs unconstitutional because no objective was claimed for them beyond general atonement. Lack of a purpose beyond atonement is, however, an inherent condition of set-aside programs - something not true of the FCC preference. Set-asides do, in the short term, artificially increase minority participation in the economy, but they do not address the underlying causes of minority social and economic distress. Pull the prop away, and minorities are no better off than they were before.
Greater racial diversity of media ownership, in contrast, clearly has a constructive purpose. That purpose should be recognized as a compelling government interest even by the most conservative members of the Supreme Court. Even they will not deny that minorities still face severe economic and cultural isolation, nor would they find this isolation to be a satisfactory thing.
Yet the barriers that separate minorities from the white majority today are far more elusive than in the days of Jim Crow. It is precisely their lack of visibility to the white majority that makes these barriers even more tenacious than old-style segregation. The remaining barriers can be defeated only if they are fully illuminated to all Americans. White-owned media cannot be expected fully to appreciate them, much less illuminate them. Minority individuals alone, who every day face subtle and persistent forms of discrimination, can bring the perspective of experience to the broadcast audience.
It is also important to remember that the FCC's preference, unlike set-asides, is not in any sense a racial quota. Non-minority applicants will still prevail over minority applicants if they possess superior overall comparative attributes.
Where applicants are otherwise equal, however, or nearly so, the FCC is reasonable to conclude that a minority applicant will provide a substantial incremental benefit to the listening public.
Justice Holmes's aphorism is rightly famous: ``The life of the law has not been logic; it has been experience.'' In logic, race neutrality is a salutary principle. Our nation's experience with racial separation tells us, however, that blind adherence to the principle of neutrality will continue to deny to minorities true social justice. The FCC knows this, and the Supreme Court should, too.