Constitutional Law - Equal Protection - D.C. Circuit Finds FCC's Equal Employment Opportunity Regulations Unconstitutional. - Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344 (D.C. Cir.), reh'g en banc denied, 154 F.3d 487 (D.C. Cir. 1998).

In Adarand Constructors, Inc. v. Pena, 1 the Supreme Court's most recent affirmative action decision, the Court determined that strict scrutiny must be applied to all federal, state, and local government programs that employ racial classifications. 2 Last April, in Lutheran Church-Missouri Synod v. FCC, 3 the Court of Appeals for the District of Columbia expanded Adarand's scope to include not only remedial 4 preference programs, 5 but also nonremedial outreach programs, when it considered a challenge to the constitutionality of the FCC's equal employment opportunity (EEO) regulations. Applying strict scrutiny, the court determined that part of the EEO regulations functioned as racial classifications and, as such, unconstitutionally pressured employers to consider race in their hiring decisions. However, because the court did not properly distinguish between the potential indirect pressure for race based hiring exerted by outreach programs and the pressure directly imposed by preference programs, the court failed to justify its application of strict scrutiny. Lutheran Church-Missouri Synod, a religious organization based in Clayton, Missouri that owns two radio stations, applied to the FCC to renew its station licenses in 1989. 6 Both of the Church's radio stations have a religious format; one also plays classical music. 7 As a condition for granting and renewing broadcast licenses, the FCC required all radio stations to abide by its EEO regulations. 8 These regulations consisted of two parts: the first, a policy statement, prohibited stations from discriminating in employment decisions against any person "ZY ...