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;

\(x\) 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).

\_\_\_\_\_\_\_\_\_\_\_\_

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

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

inconsistent with the fundamental structure of the rule. See Part

II.B.4.

\_\_\_\_\_\_\_\_\_\_\_

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.

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.