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X*hO R D E Ră  X * LRespondent's and Intervenor's Suggestions of Rehearing En Banc and the response thereto   >have been circulated to the full court. The taking of a vote was requested. Thereafter, a majority   of the judges of the court in regular active service did not vote in favor of the suggestions. Upon  /%s consideration of the foregoing, it is  X]%* Ordered that the suggestions be denied.  X/'* Per Curiam  X)* FOR THE COURT: ")0*0*0*'"Ԍ Mark J. Langer, Clerk   X* L A statement by Chief Judge Edwards, with whom Wald, Circuit Judge, concurs, dissenting  X*from the denial of the suggestions of rehearing en banc is attached.   XL* LA statement filed by Circuit Judge Tatel, with whom Wald, Circuit Judge, concurs,  X7*dissenting from the denial of the suggestions of rehearing en banc is also attached. /%s   X *Circuit Judge Rogers would grant the suggestions of re-  X *hearing en banc./%s   X*Circuit Judge Garland did not participate in this matter.  XY* LxSeparate statement filed by Chief Judge Edwards, with whom Wald, Circuit Judge,  XD*concurs, dissenting from the denial of the suggestions of rehearing en banc.  X* LEdwards, Chief Judge, dissenting from the denial of rehearing en banc: By subjecting an   agency's nonpreferential antidiscrimination policies to scrutiny appropriate only for racial classifications, the panel in this case has created a constitutional issue where none exists.  L`At issue are equal employment opportunity regulations promulgated by the Federal   Communications Commission ("Commission" or "FCC"). The regulations prohibit discrimination  X*  pin employment. See 47 C.F.R.  73.2080(a) (1997). The regulations also require broadcast   stations to maintain "a positive continuing program of specific practices designed to ensure equal   opportunity in every aspect of station employment policy and practice." 47 C.F.R.  73.2080(b).   In particular, broadcasters are required to make sure that managers, employees, and prospective   xemployees are fully apprised of the equal employment opportunity policy; in addition,   broadcasters are required to "conduct continuing review of job structure and employment  X*  practices" to ensure equal employment opportunity. Id. Finally, under "EEO program   "requirements," broadcasters are instructed that, "to the extent possible, and to the extent that they   are appropriate in terms of the station's size, location, etc.," a broadcaster should consider the following actions to facilitate equal employment opportunity:  X#*X .... (# X(#   DX` ` (1) Disseminate its equal opportunity program to job applicants and employees. For example, this requirement may be met by:  X(#";'0*0*0*%"Ԍ .nXX` `  (i) Posting notices in the station's office and other places of   employment, informing employees, and applicants for employment,   of their equal employment opportunity rights. Where it is   appropriate, such equal employment opportunity notices should be posted in languages other than English;x` X(#  .XX` `  (ii) Placing a notice in bold type on the employment   application informing prospective employees that discrimination because of race, color, religion, national origin, or sex is prohibited;x` X(#   .(XX` `  (iii) Seeking the cooperation of labor unions, if represented   at the station, in the implementation of its EEO program and the inclusion of nondiscrimination provisions in union contracts;x`   .XX` `  (iv) Utilizing media for recruitment purposes in a manner   that will contain no indication, either explicit or implicit, of a   preference for one sex over another and that can be reasonably expected to reach minorities and women.x` X(#   .XX` `  (2) Use minority organizations, organizations for women,   media, educational institutions, and other potential sources of   minority and female applicants, to supply referrals whenever job   vacancies are available in its operation. For example, this requirement may be met by:x` X(#   .XX` `  (i) Placing employment advertisements in media that have   significant circulations among minorities residing and/or working in the recruiting area;x` X(#   .XX` `  (ii) Recruiting through schools and colleges, including those   located in the station's local area, with significant minority-group enrollments;x` X(#   .XX` `  (iii) Contacting, both orally and in writing, minority and   6human relations organizations, leaders, and spokesmen and   spokeswomen to encourage referral of qualified minority or female applicants;x` X(#   .HXX` `  (iv) Encouraging current employees to refer minority or female applicants;x` X(#   .|XX` `  (v) Making known to recruitment sources in the employer's   immediate area that qualified minority members and females are   being sought for consideration whenever you hire and that all candidates will be considered on a nondiscriminatory basis.x` "(0*0*0*`'"Ԍ  DX` ` (3) Evaluate its employment profile and job turnover against the  availability of minorities and women in its recruitment area. For example, this requirement may be met by:  X(#   .VXX` `  (i) Comparing the composition of the relevant labor area with composition of the station's workforce;x` X(#   .XX` `  (ii) Where there is underrepresentation of either minorities   and/or women, examining the company's personnel policies and   practices to assure that they do not inadvertently screen out any   group and take appropriate action where necessary. Data on   representation of minorities and women in the available labor force   are generally available on a metropolitan statistical area (MSA) or county basis.x` X(#   X` ` (4) Undertake to offer promotions of qualified minorities and women in a  LRnondiscriminatory fashion to positions of greater responsibility. For example, this requirement may be met by:(#   .RXX` `  (i) Instructing those who make decisions on placement and   Xpromotion that qualified minority employees and females are to be   considered without discrimination, and that job areas in which there is little or no minority or female representation should be reviewed;x` X(#   .XX` `  (ii) Giving qualified minority and female employees equal   opportunity for positions which lead to higher positions. Inquiring   as to the interest and skills of all lower paid employees with respect to any of the higher paid positions.x` X(#   X` ` (5) Analyze its efforts to recruit, hire, and promote minorities and women and  Laddress any difficulties encountered in implementing its equal employment oppor-tunity program. For example, this requirement may be met by:(# X(#  .XX` `  (i) Avoiding use of selection techniques or tests that have  X*  the effect of discriminating against qualified minority groups or females;x`   .LXX` `  (ii) Reviewing seniority practices to ensure that such practices are nondiscriminatory;x` X(#   .zXX` `  (iii) Examining rates of pay and fringe benefits for   employees having the same duties, and eliminating any inequities based upon race or sex discrimination.x` X(# 47 C.F.R.  73.2080(c). "(0*0*0*`'"Ԍ LHThe Commission also utilizes internal guidelines for processing license renewal   applications. Under these guidelines, when deciding how closely to examine compliance with   equal opportunity regulations by a station employing between five and fifty full-time employees,   the Commission will consider the ratio of minority and women employees to the available  X*  workforce as one of several factors. See Amendment of Part 73, 2 F.C.C.R. 3967,  45 (1987);  X*EEO Processing Guidelines for Broadcast Renewal Applicants, 46 RR 2d 1693 (1980).  LIt seems to me that the challenged regulations command virtually nothing, save good faith   efforts by broadcasters to ensure against unlawful employment discrimination. This   8notwithstanding, the panel somehow viewed the FCC regulations as "certainly influenc[ing]   ultimate hiring decisions" and "oblig[ing] stations to grant some degree of preference to  X *  tminorities in hiring." See Lutheran Church v. FCC, 141 F.3d 344, 351 (D.C. Cir. 1998).   Accordingly, the panel concluded that the regulations constituted the kind of racial classifica-tion  X *  that must be subjected to strict scrutiny under Adarand Constructors, Inc. v. Pena, 515 U.S. 200  X *  (1995). See 141 F.3d at 351. This analysis mischaracterizes the regulations, with serious consequences.  L@The regulations in no way draw any kind of racial classification. They plainly do not   "oblige" anyone to exercise any sort of hiring preference. Rather, the regulations merely facilitate   the avoidance of unlawful employment discrimina-tion. The regulations "influence" hiring   decisions only in the sense that anti-discrimination law generally seeks to influence employers   to avoid bias. Therefore, I cannot understand how it can be concluded that the regulations   constitute a racial classification. Because there is no racial classification at issue here, there is no real constitutional issue to be decided in this case. q* * *  LBecause the panel decision purports to decide major issues of constitutional law where   none exist, this case "presents questions of 'real significance to the legal process as well as to the  Xo*  litigants,' " Bartlett v. Bowen, 824 F.2d 1240, 1244 (D.C. Cir. 1987). Thus, in my view, review by the full court is required. q* * *  X* LUnder Adarand, the existence of "racial classification" in a federal statute triggers strict  X*  Bscrutiny. See Adarand, 515 U.S. at 227. It is clear that Adarand, which consistently used the  X *  Tlanguage of "racial classification," see id. at 215, 223, 224, 227, dealt only with policies that   actually classified on the basis of race. A careful look at the regulations here reveals that they  X"*do not include any such classification, and that Adarand therefore does not apply to them.  LfThe panel here found that the Commission's regulations constituted a racial classification  Xe%*  8under Adarand, because, in the panel's view, "[t]he entire scheme is built on the notion that   \stations should aspire to a workforce that attains, or at least approaches, proportional   4representation." 141 F.3d at 35152. In so finding, the panel relied primarily on two pieces of   "evidence. The first was the regulations' requirement that stations evaluate themselves, and, when   finding "underrepresentation" of minorities, determine whether their hiring policies "inadvertently"" )0*0*0*`'"  X*  zdiscriminated. See 47 C.F.R.  73.2080(c)(3)(ii). The second piece of evidence, on which the   panel relied heavily, was a set of processing guidelines that the FCC issued for internal review   of licensing renewals. Under the guidelines, a station that did not meet certain numerical criteria  X*  could be subjected to closer review to determine equal opportunity compliance. See Amendment  X*  lof Part 73, 2 F.C.C.R. 3967,  45 (1987); EEO Processing Guidelines for Broadcast Renewal  X*  &Applicants, 46 RR 2d 1693 (1980). The panel thought these guidelines offered an incentive to   stations to employ hiring preferences. This incentive, the panel concluded, was encouragement sufficient to trigger strict scrutiny.  X9* LThe panel was undoubtedly correct in stating that regulations that "oblige stations to grant   some degree of preference to minorities in hiring" would constitute a racial classification and  X *  would trigger strict scrutiny. See 141 F.3d at 351 (emphasis added). The serious problem with   the panel's analysis, however, is that the regulations here do not "oblige" anyone to exercise any  X *  "preference. The most they do, even arguably, is to encourage stations fairly to consider minority  X *  lapplications. Instructing stations to use statistical analysis as one possible method of checking   themselves for unintentional discrimination could not conceivably be understood as "obliging"   or "encouraging" the use of any preference. It simply advises a method for increasing vigilance   against discrimination. The processing guidelines, for their part, clearly do not require that a   station exercise a racial hiring preference, but only set the conditions under which some further inquiry into a station's hiring practices might occur.  LThe panel claimed that the mere possibility that the racial composition of a station's   workforce might play a role in subjecting a station to the burden of a "government audit" makes   Pthe guidelines into a preferential racial classification. But this argument makes no sense in light  X*  lof decisions, such as Texas Dep't Community Affairs v. Burdine, 450 U.S. 248, 25354 (1981)   (test for prima facie case with respect to a disparate treatment claim under Title VII) and  X*  "Connecticut v. Teal, 457 U.S. 440 (1982) (non-proportionality in the selection process can be the   basis of a "disparate impact" claim under Title VII), setting forth the standards governing the  X*  Pestablishment of a prima facie case of employment discrimination under Title VII. See also 42   U.S.C.  2000e2(k) (1994) (setting forth burden of proof in disparate impact cases). The  Xd*  Burdine and disparate impact frameworks show definitively that no suspect "racial classification"   need arise simply because the law dictates that an employer might have to explain, on pain of sanction, why its hiring decisions were nondiscriminatory.  X * L@Under Burdine, when a protected minority plaintiff shows by a preponderance of the   pevidence that he or she was denied employment despite being qualified, and that the position   remained unfilled, the burden of production shifts to the employer-defendant to show that the  X!*  hiring decision was nondiscriminatory. See 450 U.S. at 25354. In other words, Burdine allows   the race of just one applicant to play a crucial, even determinative, part in requiring an employer   to respond in litigation and justify its actions. "[T]he prima facie case 'raises an inference of  X$*  discrimination only because we presume these acts, if otherwise unexplained, are more likely than  Xo%*  not based on the consideration of impermissible factors.' " Id. at 254 (emphasis added) (quoting  XZ&*Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978)). "E'0*0*0*%"Ԍ LAs the Supreme Court noted in establishing this framework, "[t]he burden of establishing  X*  a prima facie case of disparate treatment is not onerous." Burdine, 450 U.S. at 253. Yet, the  X*  Burdine framework certainly does not implicate strict scrutiny. The FCC's processing guidelines   Puse race in an even less instrumental way: a numerical disparity between a station's employees   and the relevant workforce is simply one factor among several in the Commission's determi-nation of whether further investigation (not litigation) is required.  LxIn light of the statutory mandates that we routinely enforce under Title VII, both with  XL*  lrespect to "disparate treatment" and "disparate impact" cases, see, e.g., Koger v. Reno, 98 F.3d   631, 63334, 639 (D.C. Cir. 1996) (applying and explaining disparate treatment and disparate   impact standards), it is hard to comprehend a suggestion that the disputed FCC guidelines and   regulations implicate strict scrutiny. A racebased analysis may play a part in the Commission's   decision to launch an investigation to which a station would have to respond. But it does not   follow that the burden of a potential investigation "obliges" a station to engage in unlawful hiring  X *  preferences, any more than the Burdine burden-shifting obliges employers generally to engage   in preferential hiring in order to avoid ever facing the requirement of justifying their employment   4decisions as nondiscriminatory. Plainly, race may be a factor in requiring a party to explain its actions without triggering strict scrutiny.  LIn the opinion denying the petition for rehearing, the panel suggests that the analogy to   Title VII is inapposite, because "the statute does not encourage employers to impose racial   preferences in order to avoid Title VII liability." The same can be said here about the regulations   and processing guidelines, for neither requires nor encourages employers to exercise racial hiring   preferences. The panel decision on rehearing seeks to avoid the analogy to Title VII by citing   8a provision in the statute that says, "[n]othing contained in [Title VII] shall be interpreted to   require any employer ... to grant preferential treatment to any individual or to any group because  X*  of [ ] race...." See 42 U.S.C.  2000e2j (1994). I take it from this that the Commission's   regulations would have survived judicial scrutiny had the agency foreseen the need to parrot this   passage from Title VII. When the case is returned to the agency, the Commission should   zconsid-er amending the regulations to add the Title VII caveat. It seems obvious to me that the   Lregulations and guidelines as presently written do not require or encourage racial preferences, but, if that point needs further clarification, it is easily achieved.  LThe panel decision seems to be of the view that any policy that leads an employer to be   conscious of race while making hiring decisions demands strict scrutiny. I think this is incorrect   as a matter of law and logic: a person who is being scrupulously and self-consciously careful  X *  4not to be racist in a hiring decision is certainly "conscious of" race"but in a positive way. To   think otherwise is to confuse the aspiration to color-blindness with the reality that today, whether   >we like it or not, "race" exists as a social fact. If Congress passed a law stating that every federal   zemployer must think twice before every hiring decision to make sure he or she was not making   a racist decision, this law surely would not implicate strict scrutiny, even though it would call for self-consciousness about race.  LJIndeed, the processing guidelines may not even aim to affect the stations' behavior at all:   the guidelines reasonably can be understood to provide nothing more than a method for allocating   the agency's investigative resources. It is hard to see how strict scrutiny should apply to the")0*0*0*`'"   guidelines an agency uses to decide when to look closely at whether its licensees are complying   with the law. This is especially true when no infringement on the rights of the licensee is   implicated by the closer investigation. The Commission cannot investigate every station in the   country to see if it is discriminating in its hiring. The agency must allocate its investigative   resources somehow. One inexpensive, nondiscriminatory way for it to make the initial cut is to   look at the numbers of minorities hired relative to the number of minorities in the general area. That is all that the processing guidelines actually do.  XH* LBecause there is no racial classification in these guidelines or regulations, Adarand does   0not apply. The panel's constitutional analysis was therefore entirely unwarranted. The panel here   ^essentially disagreed as a matter of policy with the use of statistical comparison as a method of   "targeting more careful investigation. There may be reasons for such a disagreement, but they are  X *  not of constitutional magnitude. Because Adarand simply does not cover this case, its   application"which allows the panel to second-guess the Commission  /%s on agency policies"is misplaced. q* * *  Xf* L@Beyond its misapplication of Adarand to the regulations and guidelines at issue in this   *case, the panel here subjected the term "diversity" to a rhetorical attack which, in my view,  X:*  Lmisstated the limited way in which the concept of "diversity" functions in this case. See 141 F.3d   >at 356. Depending on context, the term "diversity" can have several meanings, only one of which   bactually applies here. The only meaning that might be relevant here is that of "programming   Tdiversity," the justification offered by the Commission for its equal employment opportunity  X*  regulations, endorsed by the Supreme Court in Metro Broad., Inc. v. FCC, 497 U.S. 547 (1990),  X*and not overruled by the Court in Adarand.  LA second, largely unrelated meaning of "diversity," is the use of racial and gender   diversity in the workplace as either a relevant datum for making an initial determination of   whether employment discrimination is occurring, or, alternatively, as a tool for promoting   important social goals. This second type of diversity is not at issue in this case, because the  XC*  ^Commission has not cited workplace diversity in itself as its justification for equal employment opportunity programs.  LUnfortunately, the panel decision seems to conflate the several meanings of "diversity." The panel decision thus broadly deplores the   fXX` ` burden the term 'diversity' has been asked to bear in the latter part   of the 20th century in the United States[,] [claiming that] it appears   to have been coined both as a permanent justification for policies   seeking racial proportionality in all walks of life ("affirmative   |action" has only a temporary remedial connotation) and as a synonym for proportional representation itself.x` X(#   T141 F.3d at 356. This argument may be relevant to the ongoing debates in our society over "affirmative action;" but I do not understand what this message has to do with the instant case.")0*0*0*`'"Ԍ LԙThe panel decision does not appear to doubt for an instant that, absent the suggestion that   zthe disputed regulations constitute a "racial classification," there is no real constitutional issue at   &stake here. The panel's references to "strict scrutiny" and "intermediate scrutiny," 141 F.3d at   356, are irrelevant, because there is no "racial classification" at issue. Indeed, given the truly   ^innocuous nature of the regulations, proponents of affirmative action might be surprised by the   4suggestion that the FCC equal employment opportunity pro-gram is seen by some as affording racial preferences. In my view, it just isn't so.  LThis court hears and decides garden-variety challenges to the logic of agencies'   tjustifications for their actions every day without reaching constitutional questions. If the   Commission failed adequately to explain or justify its equal employment opportunity program as   8applied to the station here, the proper initial review should have proceeded according to our   ordinary standards. If the parties failed to join the issue correctly, the court should still have   declined to address an overreaching constitutional challenge. By forcing the square peg of the  X *  pCommission's regulations into the round hole of the Adarand analysis, which applies only to   "racial classifications, the panel decision disserves the development of anti-discrimination doctrine.  X*This serious misprision of the issues calls for rehearing en banc.  Xf* LSeparate statement filed by Circuit Judge Tatel, with whom Wald, Circuit Judge, concurs,  XQ*dissenting from the denial of rehearing en banc:  X%* LTatel, Circuit Judge, dissenting from the denial of rehearing en banc: Although the   >Supreme Court has gradually limited governmental affirmative action, first applying strict scrutiny  X*  4to state and local programs in City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), and  X*  "then to federal programs in Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995), neither the   TSupreme Court nor any other court has ever applied strict scrutiny to programs that require   nothing more than recruitment, outreach, self-evaluation, and data collection. Because the panel  X*  has done just that, taking Adarand where no court has yet taken it, and because the panel could   Thave easily avoided the issue by granting the Commission's motion for partial remand of the  Xu*  record, this case involves "a question of exceptional importance" warranting en banc review.  X`*Fed. R. App. P. 35(a). I  L"[N]ovel" or even "unusual" may well be appropriate descriptions of the Commission's  X*  pmotion to remand. Lutheran ChurchMissouri Synod v. FCC, 141 F.3d 344, 349 (D.C. Cir.   1998). But because remand would have mooted this case, thus avoiding the need to decide a   major constitutional issue, the panel should have taken the Commission at face value and granted   Jits motion. "If there is one doctrine more deeply rooted than any other in the process of   constitutional adjudication, it is that we ought not to pass on questions of constitutionality ...  X|$*  hunless such adjudication is unavoidable." Spector Motor Serv., Inc. v. McLaughlin, 323 U.S. 101, 105 (1944).  X9'* LThe Commission's motion stated that in light of its new Order and Policy Statement  X$(*  issued on February 25, 1998, it would "(1) vacat[e] those portions of the Memorandum Opinion  X)*  and Order, the Initial Decision of the Administrative Law Judge and the Decision of the Review") 0*0*0*`'"   Board that relate to the EEO issue designated for hearing in this proceeding, and (2)   &unconditionally grant[ ] the Church's applications for renewal of its broadcast licenses at issue   ^here." Mot. Partial Remand at 1. According to the Commission, this would have "moot[ed] all  X*  issues in this case" except the lack of candor issue, id. at 2"a question not, as the Church claims,   "inextricably related" to the affirmative action issue, Opp'n Pets. Reh'g and Suggestions for   Reh'g In Banc at 5, but which instead turned solely on whether the Church had accurately   characterized its own hiring policies. Commission counsel's subsequent notification to the panel   &that one Commissioner would not agree to this result in no way undermined the Commission's commitment to vacate its order.  L To be sure, the Commission found the Church's conduct defective independently of the   Church's Lutheran preference, and the Commission's EEO requirements will still apply to the   BChurch's future outreach and self-evaluation efforts. But none of this is relevant in light of the   Commission's declaration that it would vacate all portions of its order dealing with the Church's   PEEO violations and unconditionally grant the Church's license renewal. Were the panel to have   remanded, and were the Commission to make an issue of the Church's compliance in a future   0enforcement proceeding, nothing would prevent the Church from challenging the constitutionality of the EEO requirements at that time.  L I acknowledge that the Commission's request came well after oral argument took place,  X6*  Fand that in some cases we have held that late filing of such motions precludes remand. See  X!*  Mississippi River Transmission Corp. v. FERC, 969 F.2d 1215, 1217 n.2 (D.C. Cir. 1992)   (motion filed without request for leave to file two days before oral argument). But late filing  X*  Lmade no difference in Steele v. FCC, 770 F.2d 1192 (D.C. Cir.), vacated, Steele v. FCC, No. 84 X*  l1176 (D.C. Cir. Oct 31, 1985) (en banc), where, as described in Lamprecht v. FCC, this court   remanded an affirmative action case to the FCC not only after a panel had issued a decision, but  X*  after the full court vacated the panel decision to rehear the case en banc. See 958 F.2d 382, 385  X*  x(D.C. Cir. 1992) (discussing Steele). In its remand motion in Steele, the Commission   "acknowledged that it thought its race- and sex-preference policies contrary to both the   Communications Act and the Constitution" and advised the court that it wanted to reconsider  X\*those policies. Id.  X0* LThe panel points out that in Steele the Commission's motion to remand was supported by  X*  Bthe party who had challenged the policy. See Panel Op. Den. Reh'g at 4. However, I know of   Bno authority supporting the proposition that our deeply rooted obligation to avoid unnecessarily   4adjudicating constitutional questions evaporates simply because the party that brought the case   desires a decision on the merits. Nor is such a notion consistent with Supreme Court precedent.  X!*  For example, in Richardson v. Wright, 405 U.S. 208 (1972) (per curiam), the Court, having been   notified "[s]hortly before oral argument" that the agency had adopted new regulations, ruled that   "the appropriate course is to withhold judicial action pending reprocessing, under the new   regulations," because if petitioner were to prevail, "there will be no need to consider the  Xg%*  constitutional claim." Id. at 209. The Court reached this conclusion "sua sponte," id. at 212   (Brennan, J., dissenting), suggesting that the Justices gave respondent no opportunity to express   its view on the matter prior to remand. Remand would have been equally appropriate here to   avoid deciding a major constitutional issue, particularly because the Commission has not just  X )*  issued a binding order changing its policies, see In re Streamlining Broad. EEO Rule and" ) 0*0*0*`'"  X*  *Policies, 13 F.C.C.R. 6322  3 (1998) ("This action should be considered binding for radio   licensees and permittees ...."), but also stated its intent to apply the new policies to the Church's case on remand, thus granting it complete relief on the EEO issue. II  Xx* LTurning to the merits, I find nothing in Adarand or any other affirmative action case   decided by the Supreme Court that supports the panel's application of strict scrutiny to the  XL*  Commission's EEO regulations. The panel relies on Adarand for the proposition that strict  X7*  scrutiny applies to all governmental racial classifications, but a careful reading of Adarand   demonstrates that the target of strict scrutiny is "any racial classification subjecting [a] person to  X *  &unequal treatment." 515 U.S. 200, 224 (1995) (emphasis added). Not only does the language  X *  of Adarand make clear that its precise concern is governmental action that "treat[s] people  X *  differently because of their race," id. at 227; see also id. at 228 (strict scrutiny applies to  X *  &"unequal treatment based on race"), but the facts of Adarand presented the Court with a racial  X *  Lclassification that squarely produced unequal treatment: Adarand involved a government program   that gave financial bonuses to contractors who utilized minority subcontractors, thus directly   0enhancing the competitive position of minority-owned firms relative to non-minority-owned firms  Xt*in bidding for subcontracts. See id. at 20510.  XH* LIn each major affirmative action case discussed in Adarand, moreover, unequal treatment  X3*  based on race served as the trigger for strict scrutiny. In City of Richmond v. J.A. Croson Co.,   city policy required prime contractors to subcontract at least 30 percent of the contract award to  X*  minority-owned businesses. See 488 U.S. 469 (1989). In Wygant v. Jackson Board of Education,  X*  a school board used racial preferences in determining which teachers to lay off. See 476 U.S.  X*  267 (1986). And in Regents of the University of California v. Bakke, a state medical school   lreserved 16 out of 100 places in the entering class for minority students and evaluated minority   applicants through a separate process using admissions criteria different from those used for white  X*applicants. See 438 U.S. 265 (1978).  Xn* LProperly read, therefore, Adarand does not require strict judicial scrutiny of all   race-conscious measures adopted by the government. Indeed, a vast range of antidiscrimination   laws, including Title VII, require public and private entities to be conscious of race not only in   &outreach and recruitment, but also in hiring and promotion. Surely such laws do not implicate   strict scrutiny. What triggers strict scrutiny, then, is not mere race-consciousness, but rather unequal treatment based on race.  LIn this case, I am at a loss to understand how the Commission's regulations give rise to   unequal treatment based on race. By their own terms, the regulations require no "use[ ] of race  X#*  in governmental decisionmaking" as in Adarand. 515 U.S. at 228. Instead, they merely require   broadcasters to eliminate discriminatory practices, to expand the pool from which they hire, and  Xu%*  to keep adequate records. Nothing in the regulations' outreach provisions, see 47 C.F.R.   X`&*  t73.2080(c)(2) (1997) (requiring stations to target sources for minority applicants); id.    73.2080(c)(5) (requiring stations to analyze their efforts to recruit, hire, and promote minorities),   ~either directs stations to hire anyone on the basis of race or requires stations to maintain any   specific racial balance. Nor do the regulations confer or withhold benefits upon anyone on racial") 0*0*0*`'"   pgrounds. The regulations simply require that "licensees make efforts to recruit minority and  X*  Bwomen applicants so that they will be ensured access to the hiring process." In re Benchmark  X*  Radio Acquisition Fund IV Limited Partnership, 11 F.C.C.R. 8547  3 (1996). Indeed, nothing   in the regulations prevents stations from evaluating job applicants solely on the basis of individual  X*  Pmerit. At least one other court has characterized such outreach programs as raceneutral. See  X*  ~Peightal v. Metropolitan Dade County, 26 F.3d 1545, 155758 (11th Cir. 1994) (describing   school recruitment programs targeted at minorities and outreach programs led by minority employees as race-neutral).  X9* LThe panel responds by pointing out that the regulations in Adarand, like the Commission's   ~regulations here, "did not require or obligate" private entities to adopt a racial preference, but   merely "provided a financial incentive to bidding contractors to grant such a preference." Panel   bOp. Den. Reh'g at 8. "Nonetheless," according to the panel, "the Supreme Court treated the   &regulations as a racial classification, and did not even pause to consider the suggestion that the  X *  0absence of a compelled racial preference makes strict scrutiny inapposite." Id. at 9. In Adarand,   however, the core of the equal protection challenge was not that the system of bonuses provided   an incentive for prime contractors to grant a racial preference in subcontracting, but that the   bonuses directly put minority-owned subcontractors in a more competitive bidding position than  Xn*  Tnon-minority-owned subcontractors. Adarand would control this case if the Commission's   regulations put minority job applicants in a better position than non-minority applicants. But the   regulations do no such thing. Indeed, they do not even offer incentives for licensees to prefer  X+*  zminority over non-minority job applicants. Stations with inadequate outreach programs cannot   zprotect themselves from enforcement actions by preferring minorities in order to meet the 50%  X*  parity goal. See In re Kelly Communications, Inc., 12 F.C.C.R. 17,868  1113 (1997). And  X*  vstations with adequate outreach programs face no sanctions for failing to reach specific numerical  X*  ~levels of minority hiring. See In re Louisiana Broadcast Stations, 7 F.C.C.R. 1503  1619   (1992) (holding that station complied with EEO rule based on its minority recruitment efforts  X*  despite failing to hire any minorities); In re Miami Broadcast Stations, 5 F.C.C.R. 4893 WW   1317 (1990) (holding that station complied with EEO rule despite statistical disparity between   Fnew minority hires and minorities in local labor force, and declaring that "failing to meet the   Commission's processing guidelines does not in and of itself demonstrate the inadequacy of a   licensee's EEO efforts. The Commission instead focuses on a station's overall efforts to recruit,   hire and promote minorities.") (citation omitted). Because minority hiring is neither necessary   nor sufficient for a finding of compliance with the Commission's regulations, I find it difficult   to understand how the panel could have concluded that the regulations "indisputably" encourage   licensees to use racial hiring preferences. Simply put, the regulations here do not produce the  X *kind of direct discriminatory treatment that occurred in Adarand, Croson, Wygant, or Bakke.  LAll but conceding that the regulations by their terms mandate no hiring preferences, the   8panel, pointing to the requirement that stations evaluate their employment profile against the  X$*  ~availability of women and minorities in their recruiting areas, see 47 C.F.R.  73.2080(c)(3),  Xm%*  insists that the EEO regulations "certainly influence ultimate hiring decisions." Lutheran Church,   ^141 F.3d at 351. But nothing in the record supports this assumption; indeed, the Church does not even claim that the regulations "influence" its hiring decisions. "*( 0*0*0*&"Ԍ L@The panel says that because "evidence of actual discrimination would not be required   Pbefore applying strict scrutiny" in cases involving racial quotas, "there is no logical reason why   it should be required here." Panel Op. Den. Reh'g at 11. While it is certainly true that courts   &have not required evidence of discrimination before applying strict scrutiny in quota cases, the   Treason is not that they view it as irrelevant or unnecessary, but rather that in such cases the   zconnection between the regulatory requirements and the resulting unequal treatment has always   vbeen so obvious and well-documented that an overt evidentiary requirement would be superfluous.  X_*  See, e.g., Croson, 488 U.S. at 48183 (documenting the differential treatment of minority versus  XJ*  Lnon-minority subcontractors under Richmond's set-aside requirement); Wygant, 476 U.S. at 270  72 (documenting the differential treatment of minority versus non-minority teachers under the  X *  Jackson Board's layoff policy); Bakke, 438 U.S. at 27278 (documenting the differential   treatment of minority versus non-minority applicants under the Davis medical school's racial  X *  quota). Given the evidence of discriminatory treatment in Croson, Wygant, and Bakke, I do not   agree that requiring evidence of discrimination in this case would "turn equal protection analysis   inside out." Panel Op. Den. Reh'g at 11. I know of no equal protection case in which a court   has shifted the burden of justifying a regulatory scheme to the government without first   4determining that the scheme has actually effected some form of unequal treatment. Where, as   Zhere, the existence of discriminatory treatment is far from obvious, we should insist on something   Pmore than unsupported speculation about the effect of challenged regulations before subjecting them to strict scrutiny.  LI respectfully dissent from the denial of the suggestions for rehearing en banc. /%s