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Cutting the Gordian Knot of Affirmative Action: Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344 (D.C. Cir. 1998) While some opponents of affirmative action programs viewed Adarand Constructors, Inc. v. Penal as the end for affirmative action programs, supporters have clung to Justice O'Connor's admonition that strict scrutiny is not "fatal in fact"2 and have chosen to see it as merely a step toward narrowing these unwieldy, yet perhaps necessary, programs.3 Lutheran Church-Missouri Synod v. FCC4 demonstrates the federal judiciary's continued whittling away of excess affirmative action programs and how constricting the reach of such programs does not equate to making them per se invalid.5 Rather than shirking the court's responsibility to apply strict scrutiny to this volatile area, D.C. Circuit Judge Silberman ruled in accordance with the existing law. Moreover, by refusing to accept the FCC's superficial justifications, he exposed these machinations for what they wereunconstitutional racial preferences rather than provisions ensuring an even playing field.6
The Lutheran Church-Missouri Synod ("the Church") is licensed by the Federal Communications Commission ("the Commission") to operate two radio stations in Clayton, Missouri.7 Although the format of one station is religiously inspired and the format of the other is "classical music with a religious orientation,"8 the Church deemed knowledge of Lutheran doctrine to be a "requirement" for those employed by the stations.9 The Commission's adoption of equal employment opportunity ("EEO") regulations established a framework for radio stations' employment practices.lo This framework both prohibited employment discrimnationll and required that the radio stations "adopt an affirmative action `EEO program' targeted to minorities and women."12
When the Church applied for its 1989 licensing renewal, the Commission found its affirmative action program to be questionable.13 The Commission determined that the Church had not complied with the EEO requirements in two ways: the Church's religious hiring preference was over-inclusive 14 and it failed to "utilize a formal EEO process" in its recruitment practices.15 As a result, the Commission imposed formal reporting requirements on the Church as a sanction l6 Because the Commission saw the Church's employment prerequisite of a "classical music training" as a misrepresentation, it also fined the Church $25,000 for a "serious lack of candor."17
Two months after the court heard argument in the case,ls the Commission requested a partial remand,...