Does the Case on Broadcasting Diversity Undermine Reliance on Bakke?
One additional case – Metro Broadcasting v. FCC – may be quite important. That 1989 case did involve diversity, of sorts – unlike Croson, Adarand, and Wygant. In Metro Broadcasting, the Court upheld, by a 5-4 vote, the FCC’s policy of taking the race of a license applicant into account in order to promote diversity in broadcast programming. Metro Broadcasting is thus a kind of hybrid contracting/diversity case. At first blush, opponents of Bakke should find little support in a decision that upheld a race-based program designed to promote viewpoint diversity. But Bakke bashers would quickly point out that four dissenting Justices in Metro Broadcasting questioned the FCC’s diversity premise altogether. And that group of four Justices – Chief Justice Rehnquist, Justice Scalia, Justice Kennedy, and Justice O’Connor — joined the next year by Clarence Thomas, who replaced Thurgood Marshall, currently seems to be controlling the direction of race cases at the Court. Now, with Thomas’s vote,
