The misguided doctrine of "affirmative action" has been dying by inches in recent years. On April 14, Judge Laurence H. Silberman drove one more nail in its coffin. He spoke for a three-judge panel of the U.S. Court of Appeals for the District of Columbia in roundly rebuking the Federal Communications Commission for its pervasive demands for preferential treatment.

Silberman's scathing opinion merits more attention than it has received thus far. He came down hard on the notion that public employers may justify discrimination in the name of "diversity," and he added the weight of his influential court to the judicial standard of "strict scrutiny." These are big guns in a long-running war.The case at hand comes from Clayton, Mo., just west of St. Louis, where the Lutheran Church operates two radio stations. The noncommercial KFUO maintains a religious format; KFUO operates commercially and offers chiefly classical music with religious emphasis. The two stations are housed on the campus of the church's Concordia Seminary and draw upon seminarians to fill many of the available jobs.

When the church applied for license renewal in 1989, the NAACP (National Association for the Advancement of Colored People) intervened with a petition for denial. The NAACP charged that the church had failed to hire a sufficient number of blacks to meet FCC requirements.

The church responded defensively that it is difficult to find blacks who meet the stations' two main requirements - some knowledge of the Lutheran faith and some general knowledge of classical music.

That response set the wolves of the FCC to howling. An administrative law judge found the church guilty of invidious lassitude, or whatever, in seeking and hiring non-Lutheran minorities. The commission entered an order adopting the judge's findings, and last January the case got to Circuit Judges Silberman, David Sentelle and Stephen Williams.

The big issue as a matter of law has to do with the standard of appellate review to be applied. This is less complicated than it sounds. In deciding whether a given governmental program accords with "equal protection of the law," federal judges may measure the program's validity by applying a rubbery yardstick: Does the program have a "rational basis"?

As an alternative, courts may apply a much tougher standard of detailed review.

The FCC advanced the argument that its equal opportunity regulations do indeed have a rational basis: The regulations do not require goals or quotas or specific set-asides. They require only "outreach" and "recruitment" and the posting of public notices. Judge Silberman wouldn't buy it:

"We do not think it matters whether a government hiring program imposes hard quotas, soft quotas or goals. Any one of these techniques induces an employer to hire with an eye toward meeting the numerical target. As such, they can and surely will result in individuals being granted a preference because of their race."

Broadcast licensees, Silberman remarked wryly, know what it means to be charged with "underrepresentation" of minorities. It is credited as an aberration. In any event, Silberman concluded that an "important" consideration is a long way from a compelling interest, and only a compelling interest could justify the government in denying the church's ap-pli-ca-tion.

This week the FCC petitioned for full-court rehearing of the Lutheran case. One way or another, this one will get to the high court. My bet is that Silberman's sound opinion will be affirmed.

Universal Press Syndicate