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Responses to the lawyer's current bylaws draft
2-4-03


The lawyer's bylaws draft
Response index

Below is a legal analysis memo from Mimi Rosenberg which was adopted by the WBAI LAB

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From: Andrew Norris
Date: Wed Feb 5, 2003 8:17 pm

Subject: WBAI LAB Resolution & Memo on Legal Aspects of Diversity in the Bylaws

Carol [ Spooner ],

Directly below is a resolution passed at the WBAI LAB meeting 2/4/03, followed by a memo written by WBAI LAB member Mimi Rosenberg. Could you please share these with the iPNB.

"That the WBAI Local Advisory Board considers this a competent and concise document which addresses the issues of diversity and affirmative action as a counterpoint to Mr. Finck's document, and recommends it to iPNB and to all LABs as a basis of discussion."

Thank you,

Andy Norris
Secretary to the WBAI LAB

____________________________________________

Date: Tue, 04 Feb 2003 15:55:36 -0500
From: "Mimi Rosenberg"

Subject: Affirmative Action: Where There is a Will There is A Way

Dear Sisters & Brothers of the Pacifica Family,

Since the issuance of Kevin Finck's opinion on the "diversity requirements" in the proposed by-laws, many of us have been concerned that Pacifica is not pursuing every possible avenue to craft sound provisions for affirmative action in our local and national board election processes. As an attorney who has handled civil rights and constitutional cases over the years, I did some research on these issues and consulted with several more experienced civil rights attorneys, including Ted Shaw, Associate General Counsel of the NAACP Legal Defense and Education Fund. I am setting up a national conference call with several such attorneys in the next week. It is not possible that any of them can produce a written analysis by the iPNB's deadline of this Friday, Feb. 7.

In offering the following preliminary analysis, let me emphasize that I am not proposing to delay the by-laws decision process. Rather, I believe that the following points, in conjunction with any analyses that are obtained by the other civil rights attorneys working on these issues with LAB members at WBAI, KPFA and KPFK, can form the basis for a principled discussion at the upcoming iPNB meeting in Los Angeles. Indeed, I strongly believe that this meeting can and must become a constructive forum to develop a meaningful affirmative action program for Pacifica's board election process. This will keep us in conformity with our mission and in a position of leadership on these issues within the progressive community.

La Luta Continua,

Mimi Rosenberg

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Preliminary Legal Analysis of Affirmative Action Provisions for Pacifica's Delegates and Directors

The issue of affirmative action with reference to the selection of Delegates and Directors for Pacifica must first be viewed in the context of the discriminatory history of the communications industry and of the mission of Pacifica. It is important that this focus be established so that our sights are set on how to construct programs that concretely move towards equality rather than enumerating the well-known problems created by the opposition to equality and to affirmative action. We should clearly recognize the Court decisions, Congressional legislation and governmental regulations we are dealing with reflect this opposition and are derived from a white supremacist and sexist ideology. Kevin Finck enumerates the problems while ignoring their sources and solutions.

His letter suggests and speculates about a number of problems, yet never discusses possible approaches to answer these problems. Perhaps this is because he repeatedly equates affirmative action with quotas. Finck uses the word "quotas," a White House favorite trigger word. In substance Finck has erroneously told Pacifica to forego affirmative action because it shares the illegality of quotas.

But first to history. We need not simply note the exclusion of non- whites generally from America's industrial growth and wealth. The statistics and studies on this subject are many.(1) Looking at the industry in which Pacifica operates reveals the same overwhelming picture of inequality. "Historically, whites had a virtual monopoly on broadcast ownership. There were no minority-owned radio stations until 1949 when the FCC awarded a license to radio station WERD and its owner, Jesse Blayton, in Atlanta. There were no minority-owned TV stations until 1973, when the FCC awarded a license for WGPR-Detroit to a minority-owned business. In 1978, when the FCC adopted its affirmative action policy, approximately .05%, or forty broadcast licenses, were held by minority-owned businesses. In 1996, minority-owned businesses owned approximately 3.1% of broadcast properties, but this percentage decreased to 2.9% in 1998. This decline is attributable to consolidation in the radio industry, which pressured small broadcast stations to sell or expand their properties in order to become more competitive."(2)

Specifically, Finck discusses several legal issues - consistently concluding that a program of affirmative action (as distinguished from mere words) cannot legally survive. yet, this collides with Pacifica's dedicated history of challenging unjust laws and oppressive actions by all legal means possible. For example:

1. Finck writes that the finding in Richmond v. Croson(3) "has been interpreted to permit narrowly tailored racial quotas only where there has been demonstrated a prior pattern of discrimination by the entity seeking to institute said quotas." (p. 6) Finck's conclusion conflicts with that of the Seventh Circuit Court of Appeals which has held that "rectification of past discrimination is not the only setting in which government officials can lawfully take race into account in making decisions." Wittmer v. Peters, 87 F.3d 916, 919 (7th Cir. 1996), cert. denied, 519 U.S. 1111 (1997); Erwin v. Daley, 92 F.3d 521, 528 (7th Cir. 1996).

2. Finck's sweeping prior discrimination conclusion ignores the role of diversity. In both Bakke(4) and Adarand(5) the Supreme Court did not expressly reject diversity as a basis for finding a compelling state interest necessary to support an affirmative action program, while concluding that prior discrimination would furnish such a basis. While it may be difficult to prevail in an argument that diversity is a compelling state interest, it is an argument that still is available and diversity itself has been recognized by the Courts and the F.C.C. as an important goal of the broadcast/media industry. As stated by the FCC: "Full minority participation in the ownership and management of broadcast facilities results in a more diverse selection of programming. In addition, an increase in ownership by minorities will inevitably enhance the diversity of control of a limited resource, the spectrum. And, of course, we have long been committed to the concept of diversity of control because diversification . . . is a public good in a free society, and is additionally desirable where a government licensing system limits access by the public to the use of radio and television facilities." (Statement of Policy on Minority Ownership of Broadcasting Facilities, 68 F.C.C. 2d 979, 981 (1978)).

3. Finck opines that Pacifica is "likely to be considered a business establishment for purposes of the Unruh Act" (p.7). While a nonprofit status does not exempt Pacifica as a business establishment under the Unruh Act, it has never been decided that a noncommercial entity is a business establishment. The conclusion that it is not is supported by the history of Sec. 309 (i) of the Communications Act of 1982, which allowed the FCC to select licensees by random selection and required the FCC to establish incentives, rules and procedure ensuring "significant preferences" for minority-controlled applicants. In 1997 Congress forbade random selection outright except for the award of licenses and permits for public, noncommercial television stations(6). Congress thus appears to recognize a distinct category which is not a business establishment, but into which Pacifica belongs.

4. Finck's speculations regarding the federal equal employment opportunity regulations and Section 501(c)(3) of the Internal Revenue Code (p. 7) are simply that. The by-laws are not related to employment or treatment of employees. What kind of certification Pacifica may make with regard to compliance with equal opportunity laws (p. 7) is not a current issue and not a conflict with the proposed by-laws. Finck recognizes that he cannot "definitively advise" that the so-called "quotas" will jeopardize Pacifica's tax exemption recognition. Why then abandon the effort to mold an affirmative action plan unless Pacifica is not dedicated to an uncompromised struggle for equality?

With regard to handling the issues raised by Pacifica's affirmative action plans, my legal research suggests that it is important that the plan: (1) be concrete, (2) tied to the racist past history of the communications industry and ownership of the media, (3) aimed at promoting diversity, and (4) recognize the goal of diversity as a public good and the wisdom of a plan that assures such diversity particularly for those groups previously excluded from the management and policy determinations of media companies. The point is that Finck's approach is to discard affirmative action altogether rather than to find a plan that will achieve the results sought by affirmative action. Two questions reflecting the principles of Pacifica should initially be asked of Finck: (1) dose he support the concept of affirmative action? (2) if so, is he willing to consider various procedures and plans which will secure the results sought by affirmative action?

SIDE NOTE:
The argument that equality in education makes affirmative action unnecessary is directly refuted by past history and the present. In fact, well-educated, qualified nonwhites have been excluded from jobs and promotions in the past when there was no affirmative action. Given the current racial composition and racist ideology of the communications industry, why should the results be different today if affirmative action is now discarded?

Mimi Rosenberg

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1. See, e.g.: Marable, Manning, How Capitalism Underdeveloped Black America, South End Press, 1983, 2000; Residential Apartheid: the American Legacy, Bullard, Robert D., et al., eds., CAAS Publications, 1994; The Sociology of Race Relations, Pettigrew, Thomas F., ed., The Free Press, 1980; Economic Apartheid in America, Collins, Chuck and Veskel, Felice, The New Press, 2000.

2. Baynes, Leonard, "Life After Adarand: What Happened to the Metro Broadcasting Diversity Rationale for Affirmative Action in Telecommunications Ownership?" 33 U. Mich. J.L. Ref. 87, 88-89 (Fall 1999/Winter 2000).

3. 488 U.S. 469 (1989).

4. Regents of University of California v. Bakke, 438 U.S. 265, 311-312 (1978).

5. Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).

6. Balanced Budget Act of 1997, Pub. L. No. 105-333 3002 (1), (2), 111 Stat. 251 (1997).


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